In the criminal justice world, it is a truism that “death is different”, i.e., when a case carries a potential death sentence, capital punishment’s irreversible nature requires unique legal procedures and protections. In the environmental legal world, “climate is different.” Ironically, this is not because climate change is similarly irreversible (at least by any means we know of), and thus special consideration must be paid to such cases. It’s actually the opposite: established legal precedent and procedures should be ignored to protect fossil fuel interests.
Last week, the Supreme Court agreed to review a D.C. Circuit decision that tossed out the Trump-era Affordable Clean Energy (ACE) rule. This rule repealed the Obama Clean Power Plan (CPP), which regulated power plant CO2 emissions and purported to replace it (essentially by not regulating those emissions). Given that EPA said it would not reinstate either the CPP nor (obviously) the ACE Rule, further review is utterly pointless. Basically, the Supreme Court will rule on EPA’s authority to regulate power plant CO2 emissions in the context of two sets of regulations that are both dead and will never go into effect.
A fundamental rule of federal jurisprudence is that courts do not decide issues unless they have to. (In fact, on Thursday, I was part of a 4-hour D.C. Circuit argument where the judges spent much of that time trying to see if there was a way to protect my clients from further injury without having to decide the substantive legal issues.) And courts especially do not consider abstract questions of agency authority in a vacuum. Rather, they only decide whether specific agency actions are within the agency’s regulatory authority, and never give a general “advisory” opinion as to the scope of that authority. Never. At least not until last Friday.
This is the second time the Supreme Court has implied that “climate is different.” In 2016, the Court issued a stay of the Clean Power Plan while a challenge to it was still before the D.C. Circuit; it had never previously stayed a regulation while it was still before a lower court, let alone when that court had refused to do so.
The only doubt I have about the ACE/CPP (non)case outcome is how far SCOTUS will go. It will almost certainly decide that EPA has little or no authority to regulate power plant CO2 emissions. Still, it could easily go further and find a way to curtail EPA’s authority over other emission sources. It could even overturn Massachusetts v. EPA and hold that the Clean Air Act does not give EPA any greenhouse gas regulatory authority at all; three of the four Justices who dissented in Massachusetts because they thought that EPA had no business regulating greenhouse gases are still on the Court (Roberts, Alito and Thomas; Scalia was the fourth). And once a court starts deciding issues that aren’t actually before it, there are few limits to what it might do.
The ultimate irony about that last possibility is how little difference EPA’s authority has made to date. Massachusetts was decided in 2007, and in the 14 years since then, aside from vehicle emissions and its stab at the Clean Power Plan, EPA has barely made use of that power. The Obama Administration did not prioritize climate change and wound up doing extremely little on it (and no need to discuss the Trump Administration). But sadly, just when we get an EPA that seems to want to use that authority (e.g., proposing methane emission standards for the oil and gas industry), the Supreme Court may pull the rug out from under them.
Climate is indeed different.