On Saturday, Feb. 13, 2016, this country lost perhaps the most polarizing U.S. Supreme Court Justice of the last century, Justice Antonin Scalia. His ability to stimulate the minds of his readers through meticulous opinions and legendary dissents is unmatched and likely irreplaceable.
The void created by Scalia’s loss, however, has spawned a new set of challenges this country will face in the coming months. From an environmental standpoint, no forthcoming challenge is greater than the fate of the Environmental Protection Agency’s (EPA) controversial Clean Power Plan.
Nearly three weeks ago, the U.S. Court of Appeals for the District of Columbia denied motions which sought to stay the implementation of the Clean Power Plan until the court had an opportunity to determine its constitutionality. The premise of those motions, although incomplete in meritorious analysis, was that the EPA did not have authority under the Clean Air Act to promulgate the Clean Power Plan, let alone enforce it.
In an unprecedented 5-4 split along party lines, U.S. Supreme Court reviewed and granted the applications to stay, ordering the lower court to first decide the constitutional issue before permitting implementation of the plan. With the now politically balanced U.S. Supreme Court, the outcome of the Clean Power Plan rests in the hands of three judges, one appointed by President George H.W. Bush, one by President Bill Clinton, one by President Barack Obama.
Considering the current status of the U.S. Supreme Court, the Clean Power Plan’s odds of success have increased exponentially. Should Justice Scalia not be replaced in time to review the seemingly inevitable appeal, a likely 4-4 decision from the Court would result in the lower court having the final say. While there are no certainties, as evidenced by Justice Robert’s position on the Affordable Care Act, the Clean Power Plan is now on a much different trajectory than where it began.