|
 Scalia died Saturday. Four days earlier, he voted with the other
conservative members of the high court to put a hold on the
administration's plans to implement the Clean Power Plan while it is
litigated.
The regulation is designed to lower carbon emissions from U.S. power
plants by 2030 to 32 percent below 2005 levels. The rule is the
United States' main tool to meet the emissions reduction target
pledge it made at U.N. climate talks in Paris in December.
It was challenged by 27 states, along with business and industry
groups, in a case now before an appeals court in Washington D.C. The
Supreme Court could be asked to weigh in again later this year.
Without Scalia, the conservative members of the court no longer have
a majority, at least in the short term. The sudden shift has given a
boost to the supporters of the emissions rule.
"Last week, the Clean Power Plan was basically dead," said Brian
Potts, a lawyer with the Foley & Lardner law firm who represents
companies on environmental regulatory issues. "But with Scalia's
death, everything has changed."
 Environmental lawyers involved in the litigation who support the
regulation told Reuters Monday that even before Scalia's death they
had been hopeful the Supreme Court would ultimately uphold it upon
close consideration. But they said the change in the high court
bolsters the rule's chances.
"There are still no guarantees, but the Clean Power Plan faces much
better odds now than it did on Friday," said Jack Lienke, a lawyer
with the Institute for Policy Integrity at New York University
School of Law, which backs the regulation.
Industry lawyers said they remained confident the regulation will be
struck down.
"While Justice Scalia's untimely passing creates more uncertainty,
the Clean Power Plan is still predicated on an extraordinarily shaky
legal foundation," said Scott Segal, a lawyer with the Bracewell law
firm, which represents companies that oppose the regulation.
In January, a three-judge panel of the U.S. Court of Appeals for the
District of Columbia Circuit had unanimously rejected the same
request for a stay that the Supreme Court granted last week. The
appellate panel has set oral arguments on the merits of the case for
June 2.
[to top of second column] |
The randomly-drawn appeals court panel is viewed by lawyers on both
sides as relatively favorable for the administration, featuring two
Democratic appointees and one Republican appointee. One of the
Democratic appointees is Sri Srinivasan, a judge many legal experts
see as a leading candidate for President Barack Obama to nominate to
replace Scalia.
If the appeals court upholds the rule and the challengers take the
case to the Supreme Court, they would face an uphill battle in
getting the five votes needed for a win without Scalia. The four
liberal justices are seen as likely to uphold the rule. So, the best
result the challengers would be likely to get is a 4-4 split. When
the court is evenly divided, the lower court ruling stands, meaning
the regulation would survive.
An unknown factor is how soon a ninth member will be appointed and
whether it will be a Democratic or Republican president who makes
it.
Some Republican leaders have said Obama should not appoint a
successor, leaving it to the next president, who would take office
in January 2016. Obama has said he plans to announce a nomination
but will face an uphill ban to win confirmation in the
Republican-controlled Senate.
If a Democratic appointee replaces Scalia, it would tilt the balance
of the court leftward for the first time in decades. A Republican
appointee would extend the narrow conservative tilt the bench had
until Scalia's death.
If Srinivasan were appointed, he would have to step aside on the
Clean Power Plan case because of his involvement in the case at the
appellate level. That would increase the chances of a 4-4 split.
(Reporting by Lawrence Hurley. Additional reporting by Valerie
Volcovici; Editing by Noeleen Walder and Lisa Girion)
[© 2016 Thomson Reuters. All rights
reserved.]
Copyright 2016 Reuters. All rights reserved. This material may not be published,
broadcast, rewritten or redistributed. |
