Will John Roberts Destroy His Reputation And A Livable Climate At The Same Time?

Supreme Court Justice Elena Kagan, from left, Chief Justice John Roberts, Justice Anthony Kennedy, Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Sonia Sotomayor arrive before President Barack Obama delivers the State of the Union address to a joint session of Congress on Capitol Hill in Washington, Tuesday, Jan. 12, 2016. CREDIT: AP PHOTO/EVAN VUCCI

The shocking decision by the five conservative Supreme Court justices to “stay” the EPA’s carbon regulations for power plants does not, by itself, destroy what’s left of the Court’s reputation — or even doom the EPA’s Clean Power Plan (CPP).

Heck, it doesn’t even mean that the United States won’t be able to hit the CO2 reduction target it pledged with the other nations of the world in the Paris Agreement. Indeed, I expect with or without the CPP, the U.S. is probably going to meet its Paris pledge, its Intended Nationally Determined Contribution (INDC), to cut greenhouse gas pollution 26 to 28% below 2005 levels in 2025 (see below).

The Court’s stay just stops the EPA from from starting to implement its “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” probably until the Court itself rules on it — assuming that the U.S. Court of Appeals for the DC Circuit rules for the EPA and then the Supreme Court agrees to hear the appeal.

Senior White House officials said on a media call Tuesday evening that this was a temporary procedural determination that does nothing to affect the soundness of the rule, nor the White House’s determination to proceed with the rule and to cut emissions. They expressed confidence that the administration’s climate targets were achievable, citing momentum in the renewable power sector.

Of course, if the Roberts court ultimately decides to kill the rule 5–4 then that decision will immediately become the leading contender for the worst Supreme Court decision in U.S. history. After all, if the nations of the world ultimately don’t avoid catastrophic warming and if the U.S. is seen as bearing a significant portion of the blame — two entirely plausible outcomes — then future generations and historians will be judging the Court’s decision while suffering in a world with a climate that has been irreversibly ruined for centuries.

The untenability of the decision is pretty clear-cut for two reasons. First, the Supreme Court itself said back in 2007 in Massachusetts vs. EPA that the EPA was legally required to put in place such standards once CO2 was scientifically determined to endanger public health and well-being, which it obviously does. As Dave Roberts wrote in 2013: “Once more, with feeling: the EPA is required to regulate carbon from existing power plants.”

Second, given that the EPA was legally required to regulate carbon from existing power plants, the key question is whether the manner it chose to do so is somehow unduly or inappropriately onerous. It clearly isn’t. As George W. Bush’s former EPA chief Christine Todd Whitman explained to me in October, the CPP is “the most flexible thing,” the agency has ever done. Whitman point out that “What EPA did was to allow as much flexibility as frankly I’ve ever seen them be able to create in a regulation.” That is, the CPP gives more options to states and industry to meet the new standards than it had in any previous regulation, enabling them to use a wide variety of strategies to advance a wide variety of clean energy technologies, including energy efficiency.

“I believe they have gone as far as they can possibly go,” Whitman told me. She has unique experience on this subject, “having tried at various times when I was at EPA to provide some flexibility in getting clean-air standards — and getting beaten back every single time and losing in court.”

So if the Supreme Court ultimately rules against the CPP, that would transparently be seen as a purely political decision. And a baffling one, given Justice Anthony Kennedy’s deciding vote in Mass. vs. EPA. Obviously if the ultimate outcome is that humanity doesn’t preserve a livable climate, then when future generations are looking where to point the finger, John Roberts will be on the short list.

Certainly, if the Court does ultimately kill the CPP that would impede the effort to achieve our Paris pledge. But it is far from fatal — thanks in part to the Supreme Court itself!

Start with the fact that U.S. economic growth has decoupled from both energy and electricity use thanks to a combination of smarter policies and better technology, as I discussed last week. Then add the fact that the ongoing price drop in solar and wind and batteries — coupled with Congress’s multi-year extension of key solar and wind tax credits and the Supreme Court’s decision in favor of so-called “demand response” programs — means that the exponential expansion of renewable power in this country is unstoppable, as I discussed at length in my recent series on renewable energy.

So if electricity demand remains flat and renewables soar while natural gas prices remain low, then coal is going to get squeezed out anyway, and power plant emissions will continue their steady decline.

Of course, that is not a sure thing. And even if we do meet our 2025 pledge, we’re going to have to come up with a plan to have an even stronger pledge in 2030 (and beyond), since that is what is required to avoid catastrophic warming and that is what all the major nations of the world agreed to in Paris.

That means the future of the climate will depend on the future shape of the Supreme Court and whoever wins the presidency this year. Yes, once again, this is the most important election ever for the climate.

Finally, climate inaction is immoral, as the Pope spelled out in great detail in his 195-page encyclical. And the U.S. climate pledge in Paris — and by extension the CPP — is the very least this country can do and remain a moral nation, as I discussed here.

Dr. Martin Luther King, Jr. famously said: “The arc of the moral universe is long, but it bends toward justice” (“echoing the words of 19th century abolitionist and Unitarian minister Theodore Parker”). The question for John Roberts is whether, in his Court, the arc of justice bends toward morality. On that question hinges his legacy — and, possibly, the fate of the climate for the next 50 generations.