The Clean Power Plan, The Supreme Court’s Stay, and Irreparable Harm

Invited by the American Constitution Society, this very short essay critiques the decision by the Supreme Court to stay implementation of the Clean Power Plan (CPP), the cornerstone of the Obama Administration’s climate policy, while twenty-nine states proceed with litigation against it. The CPP targets greenhouse gas emissions from power plants, which account for about a third of all U.S. carbon emissions. It provides for substantial flexibility in how reduction targets may be attained within states, but generators heavily invested in coal argue that implementation will require unfair and expensive changes. It therefore surprised no one that states closely aligned with the coal industry are challenging the CPP in court. However, the Supreme Court’s unprecedented move to stay the rule — before the issues had even been aired in open court — surprised everyone. The courts owe the plaintiffs’ arguments their most serious consideration, but the novel stay raises concerns of a different order. It represents another move by the Supreme Court to shift power toward the judiciary on matters that relate not to individual constitutional rights, where judicial prowess necessarily overtakes the majoritarian tendencies of the political branches — but to the complex allocation of costs and benefits within a comprehensive regulatory program, where judicial capacity is easily eclipsed by legislative and executive competence. If the justices find legal infirmity after carefully engaging the evidence, it is their duty to reject the rule. But when the Court breaks with its own norms to block the President’s capstone climate initiative for the remainder of his final term — before meaningful judicial review of the merits — the move may approach the boundaries of the appropriate use of its own authority. If it does not invite pause about the constitutional separation of powers, it at least gives cause to reflect on the lessons of the Lochner era. After critiquing the stay and its potential consequences for the fragile international consensus to move forward on climate governance, the essay concludes on a more hopeful note. Drawing on ongoing economic and technological shifts in the wider energy marketplace, it argues that while the stay has dealt a serious blow to the CPP in the short term, it should not be the death knell for the underlying elements of the plan, for U.S. compliance with the Paris accord, or for continued momentum toward a global response to the climate crisis