The sudden death of US Supreme Court Justice Antonin Scalia on Saturday has ended the court’s conservative majority, possibly for the foreseeable future, making it harder for opponents of President Barack Obama’s Clean Power Plan to block the measure through litigation.

The justices last week voted 5-4, and in line with their ideological leanings, in support of a request from a coalition of nearly 30 mainly Republican-led states to stay implementation of the CPP until a handful of lawsuits against the plan had been decided.

The decision effectively put on hold the US’ centrepiece initiative to cut greenhouse gas emissions from coal-fired power plants, the foundation of the country’s climate pledge under last year’s Paris Agreement.

The regulations, once passed into law, were also expected to spark a number of states to join existing regional carbon markets or set up new ones, either individually or with other states.

Experts said the Supreme Court’s decision to freeze the plan before the lawsuits have been heard in court was unprecedented, and many took it to signal that the justices would likely vote in a similar fashion when they inevitably heard one of those cases themselves.

Such a decision would come in spite of rulings from the lower DC Circuit Court of Appeals, which initially rejected the stay request last month and will hear the cases’ opening arguments in June.

The DC court’s panel is made up of mostly Democratic appointees, and it is expected to dismiss the states’ case that the CPP is illegal and represents federal government overreach.

With Scalia out of the picture, an eight-justice Supreme Court split along party lines would not likely overturn the lower court’s ruling.

“If Justice Scalia was part of a five-Justice majority in a case … the Court is now divided four to four. In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case,” appellate advocate Tom Goldstein wrote on the SCOTUSblog.

“Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is ‘affirmed by an equally divided [Supreme] Court’.

However, another potential snag exists in that even if the DC Circuit Court rules in support of the CPP, the Supreme Court would then need to overturn its stay of the plan’s implementation, and that could be tricky if Scalia’s seat remains empty.

NEW JUSTICE

Obama said he would nominate a candidate to replace Scalia who he hopes will be approved by the Republican-dominated Senate before the end of the president’s term, tilting the court’s balance back towards the left.

But leading Republicans were quick to release statements making it clear that they intend to block any nomination, and that a new president should make the appointment once he or she takes office next January.

“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” Senate Majority Leader and Kentucky Republican Mitch McConnell said.

Republican presidential candidate and Texas Senator Ted Cruz echoed that view, saying on Twitter: “Justice Scalia was an American hero. We owe it to him, & the nation, for the Senate to ensure that the next president names his replacement.”

What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?

— Conn Carroll (@conncarroll) February 13, 2016

But Democrats called the suggestion of waiting a year before filling the vacancy “irresponsible”.

The Republicans control both the Senate and the House of Representatives and thus can block an Obama nominee, meaning the appointment could be added to the growing number of headline issues in November’s US presidential election.

POSTHUMOUS CHANGE

The way that Scalia’s sudden death could drastically change the course of climate change legislation in the US is oddly reminiscent of Massachusetts Senator Ted Kennedy’s unexpected passing in the summer of 2009.

Kennedy’s death, which led to the election of a Republican senator in the state and the loss of the Democrats’ super majority in the Senate, was cited by observers as a factor in the eventual defeat of the Waxman-Markey bill, which by then had been approved by the House of Representatives and if enacted into law would have introduced a national emissions trading scheme.

Scalia was one of the court’s most right-leaning justices, and he openly questioned whether greenhouse gases should be treated similarly to other more observable pollutants.

In 2007, he dissented in a Supreme Court case that gave the EPA the authority to regulate carbon dioxide under the US Clean Air Act, a victory for environmentalists that eventually formed the basis for Obama’s 2013 executive order to introduce the CPP.

By Stian Reklev and Mike Szabo – news@carbon-pulse.com

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