There are many ways in which the sudden and suddenly-political death of Supreme Court Justice Antonin Scalia has the potential to impact the ordinary lives of every citizen. So far, no one has declared an upside, which is a statement unto itself. We here at DFE decided to take a look from the perspective we know best.
There are a number of cases either before the Supreme Court right now, possibly held up over the threatened year of inaction between now and Election Day, or heard but not yet ruled on. Many of those either rely on the legal interpretation of science or affect interests of the scientific community.
One big story that’s not really getting a lot of play in mainstream channels is the fate of the Clean Power Plan. The Clean Power Plan is the Obama Administration’s EPA plan for cutting emissions at power plants. Power plant hydrocarbon emissions make up a substantial 40% of the total for the United States. The Obama Administration plans to leave as its environmental legacy a system aimed at cutting those emissions by 2030.
But the bombshell from just a week and a half ago was that the Supreme Court ordered the program halted pending a hearing in the Court. That hearing could be pending for quite some time if Republicans make good with their post-election nomination plans. And if a Democrat wins the White House, they may find some new excuse to stall longer.
The Clean Power Plan is a fairly modest proposal that doesn’t even set the goal of the program for another four years. It stipulates that emissions in 2030 will not be more than 16% less than those in 2020. Legally loopy enough for you? Well, get ready for the reason the SCOTUS put the Clean Power Plan on hold:
The various parties challenging the Clean Power Plan, which include multiple states and energy companies, raise several disagreements with how the EPA has interpreted its own authority to regulate under the Clean Air Act. The most difficult question presented by this case, however, isalso the most absurd. A quarter-century ago, Congress enacted two conflicting amendments to the Clean Air Act. One of these amendments arguably prevents the EPA from moving forward with the Clean Power Plan, the other does not.
It is as if Schrödinger’s cat were written into the United States Code. The cat is both alive and dead. The Clean Power Plan is both legal and illegal.
In other words, there is nothing about the letter of the law that is unconstitutional. This is only a matter of which cat gets to exist, based on neither random chance nor on cosmic coincidence. Purely – exclusively – based on politics. And now the politics of the Supreme Court may be changing. Will be changing, one way or the other.