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Jan Lee headshot

Scalia's Death and Senate Politics: What's Next for Clean Power?

Words by Jan Lee

The death of U.S. Supreme Court Justice Antonin Scalia has put Senate Republicans into "all hands on deck" mode. Republicans, anticipating an attempt by President Barack Obama to nominate a candidate to replace the Supreme Court's conservative leader, began strategizing about their response as soon as the death was announced this weekend. And as Washington Post reporter Chris Cillizza points out, their unwillingness to play ball is an open admission that may hurt them at voting time.

But that isn't the only problem that Congress' ranking conservatives have to worry about. Scalia's death places the Supreme Court's recent stay of the federal Clean Power Plan in a more dubious light. It's important to remember that a federal appeals court already ruled on the plan's ability to stay in force while a lower court considered a pending lawsuit by states and coal companies. The Supreme Court's "unprecedented" decision to get involved prematurely -- and to place a stay on the plan until the lawsuit was heard -- was the result of a 5-4 ideological split, with Scalia as part of the ruling majority.

With the Supreme court now evenly divided between those who ruled for the stay and those who decided against it, an appeal by the Obama administration could now see an even split, rather than a majority ruling, says Climate Central's senior science writer, John Upton. "Such a scenario would uphold the looming ruling from the [lower] federal appeals court," Upton wrote on Sunday.

It isn't hard to see why Senate conservatives don't want to confirm an Obama nomination to replace Scalia. A candidate reflecting more progressive views on things like women's reproductive rights, same-sex marriage and the functionality of a minimum wage might erode the more conservative-leaning strides that Republicans hope to make next year. Worse, it would offer a wider crack in the door for energizing the country's clean-power industry and switching away from fossil fuel sources.

But not confirming an Obama nominee this year won't ensure the Republican-led legacy, either. In fact, Senate Majority Leader Mitch McConnell's advice to his peers that the vacancy "should not be filled until we have a new president" may offer a stronger, not a weaker, position for the Clean Power Plan and the EPA's ongoing efforts to reign in industry carbon emissions. Stalling -- or, as some say McConnell's words suggest, blocking -- a nomination this year would leave an even split in the Supreme Court to vote on not just the anticipated appeal of the stay, but also any other cases heard during that time.

Waiting until after the elections with the hope that a Republican would be elected to the White House in November would be folly as well: As Cillizza of the Washington Post points out, voters' patience with a Congress that appears bent on being unwilling to engage in dialogue with the president may work against its members both in the final Supreme Court shake-out and at the polls. And it is the latter that really defines the Republicans' ability to maintain majority numbers and their perceived control in Congress.

But what may really be overlooked here is the tenuous message of the Supreme Court stay itself. Numerous environmental organizations have been careful to remind us that the stay didn't really change anything about the Clean Power Plan. It just added a delay and a bit more drama to the picture. The actual request for a stay, spearheaded by the West Virginia attorney general's office, pivoted on two key points: Whether it is likely that the majority of the court will vote that the EPA's regulatory changes are illegal, and whether the plan is causing "irreparable harm" to states.

Numerous sources have weighed in on the first, including Christine Todd Whitman, who served as George W Bush's EPA chief, who suggested that the issue "should be put to rest."

"EPA does in fact have the authority," Whitman told the Senate in a testimony in 2014.  “The law says so and the Supreme Court has said so, twice."

The second issue, the idea that states are being irreparably harmed and forced to assume unrecoverable costs, is questionable in its long-term strategy as well. In fact, it's an argument that cities like West Virginia's capitol, Charleston, may have some interest in. Recently, the West Virginia Department of Commerce boasted that Charleston's available solar energy boosted it to the top of a short-list of cities that already rely on photovoltaic power. It's the cities, not the states, making the case that a shift to renewable energy actually helps, not hurts, pocketbooks at the end of the day. To date, at least four cities in the U.S. are powered completely by renewable energy. An increasing number of others are finding that even partial change makes economic sense, not harm.

An in an ironic twist of evidence, the Nevada Public Utility Commission's recent rewriting of the state's rules for solar customers underscores that point. Solar companies are calling it quits in Nevada as consumers' disillusionment rises with the newest rules -- meaning that Nevada loses not just happy residents, but business investors as well.

But whether a new justice is nominated and confirmed in 2016, Scalia's departure likely changes things -- for the Supreme Court, for the potency of Senate Republican ambitions and for President Obama.

"Fate has handed him the opportunity of any presidency -- to swing the balance of the Supreme Court," notes Chicago Tribune writer Linda Hirshman.

After years of fighting an often well-entrenched Republican majority, Obama may finally be able to fulfill some of his loftiest goals. And if the tempo of this weekend's Senate discussions is anything to go by, when it comes to the Clean Power Plan's fate, he may not have to lift a finger.

Image: Flickr/Jeff Kubina

Jan Lee headshotJan Lee

Jan Lee is a former news editor and award-winning editorial writer whose non-fiction and fiction have been published in the U.S., Canada, Mexico, the U.K. and Australia. Her articles and posts can be found on TriplePundit, JustMeans, and her blog, The Multicultural Jew, as well as other publications. She currently splits her residence between the city of Vancouver, British Columbia and the rural farmlands of Idaho.

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