By Rajendra Shende
Perhaps never before in the history of America have its citizens mourned so deeply the death of a Supreme Court justice and at the same time vibrantly rejoiced with prospects of finally getting climate justice. To be accurate, those who mourned are unlikely to be those who celebrated.
The sincere feeling of bereavement over the death of Justice Antonin Scalia originates from the shock of the sad and sudden loss of the most original constitutional lawyer who indulged in an innovative interpretation of the American constitution since it was adopted in 1789 - through the intellectual lens of conservative leanings.
On the other hand, exultation springs from those who had helplessly watched Justice Scalia's rulings that put the efforts to address global warming on the backburner. Many added a humorous shade to the loss of a truly stately figure by saying that the only conservatism Scalia rejected out-and-out was environmental conservation.
Last January, a three-judge panel of the US Court of Appeals for the District of Columbia had unanimously rejected the request for a stay on President Barack Obama's Clean Power Plan (CPP). Now, after February 9, the appellate panel has set oral arguments on the merits of the case for June 2, after which the Supreme Court would take a decision on CPP, may be in 2017.
Secretary of State John Kerry, almost at the stroke of midnight of December 12 last year, made a parting statement after the Paris agreement was adopted. The most alarming part of his statement was: "And we have reached an agreement, (if) fully implemented, will help us transition to a global clean energy." His emphasis on "full implementation" sent nervous waves across the delegates of 195 countries. Those reverberated even louder when he added: "How we build this agreement, how we build it out for each of our nations.... that is what will determine whether we're actually able to address one of the most complex challenges humankind has ever faced."
Just 60 days after, on February 9, that uneasy apprehension came haunting again when the CPP received a jolt from the blue. The Kyoto's ghost left the climate-watchers guessing if their worst fears on the US' failure in ratifying Paris Agreement would come true.
The CPP, first of its kind anywhere in the world, aimed to reduce carbon dioxide - the main green house gas (GHG) emission from coal-fired power generation plants - by 32 percent by 2030 relative to 2005 levels. The plan required, apart from reducing emissions, increasing the use of renewable energy, and energy conservation. It also included the benefits like reduction in air pollution due to mitigation of black carbon, positioning the US as the climate leader in energy-transformation. The CPP was the flagship response of the US to fulfill its commitment under the Paris Agreement.
The jolt to CPP came when a nine-judge US Supreme Court bench stayed it 5-4 and granted a request by 27 states and various companies and business groups. These business interests, thus, blocked the game-changing energy transformation ever attempted by the US. Justice Scalia was one of the five who blocked the plan - and hence Obama's climate legacy.
Justice Scalia was a Republican nominee, like other four judges who blocked the plan. Interestingly, Justice Scalia's vote in 2007 was unable to block one of the early initiatives of the federal Environmental Protection Agency (EPA) to classify carbon dioxide as an air pollutant.
That ruling, also by a 5-4 margin, allowed the EPA to start regulating carbon dioxide under its Clean Air Act. Justice Scalia was among the four who refused to concede that carbon dioxide is an air pollutant. He reportedly stated in his dissent that "EPA is not APA - Atmosphere Protecting Agency!"
I am not sure if that was the "originalism" that Justice Scalia was known for. Nevertheless, EPA was then able to formulate the very original transformative proposal to regulate the GHG emissions from coal-fired power plants.
Four days before his death, when the Supreme Court stayed the CPP, Justice Scalia might have been in a mood to revel in his renewed "originalism" to distinguish between EPA and APA. However, after his unexpected death, a Pandora's Box lies open with all the evil flowing out, leaving only "hope" inside.
Hope for a better planet, hope for climate action, hope for science-based policymaking and technology-based solutions to global warming challenges.
The death of Justice Scalia has given rise to the hope that court battle could be won finally. After this stay, the case has to be litigated on merit before the D.C. Circuit and then before the Supreme Court. Now that Justice Scalia has gone, it is expected that his replacement may favor the CPP.
In any case, the judiciary in the developed countries certainly enjoy their elite but exclusive status pampered by their allegiances to national partisan beliefs. Such privileged seclusion enjoyed by American judges totally overlooks the impact of their rulings on the environment of other nations as well as present and future humanity. The US Supreme Court needs a change of such a perspective rather than the simple replacement of Justice Scalia.
(Rajendra Shende, chairman of the TERRE Policy Centre, is an IIT alumnus and former UNEP director. The views expressed are personal. He can be contacted at shende.rajendra@gmail.com)
