Scalia Death Impacts Clean Power Plan Court Fight

Via The West Virginia MetroNews: 

Last Tuesday, the U.S. Supreme Court issued a stay blocking the implementation of President Obama’s Clean Power Plan curtailing carbon emissions from utility power plants.

The 5-4 vote for the stay was praised by leaders of West Virginia and 24 other states who contend the EPA is exceeding its authority and forcing its green agenda, while bankrupting the coal industry and driving up the price of electricity.

The ruling was the first bit of good news coal had had in awhile.

The stay sent the case back to the D.C Circuit Court of Appeals for a full hearing on the merits. Even if the District Court would rule against the states, an appeal would still bring the case back to the high court where, as indicated by the earlier decision on the stay, it would seem the Clean Power Plan would be struck down.

However, just four days later, Supreme Court Justice Antonin Scalia, the most forceful conservative on the bench and a key member of the majority that issued the stay, was dead from natural causes, creating a vacancy on the court and a significant amount of uncertainty.

West Virginia Attorney General Patrick Morrisey, who is among those leading the fight against the Obama administration and the EPA, says they are still evaluating how Scalia’s death may affect their case.

“It’s difficult to say how the odds may have changed,” Morrisey told me. That’s because there are many moving parts, including whether this President or the next makes the appointment, who is picked and when he or she takes office.

It’s always risky to predict how a justice would rule, but it’s reasonable to believe a Democratic appointment would be more inclined than a Republican to support EPA’s tough emissions rule. “The Presidential election may have an even bigger impact on the outcome,” Morrisey said.

It also could be an issue if the position remains vacant for an extended period of time.  If the District Court makes a decision and, on appeal, the Supreme Court deadlocks 4-4, then the lower court ruling stands.  The D.C. Circuit has a reputation as a more liberal court, which could make it more challenging to win a fight against the Obama administration and his EPA.

However, Morrisey appears more concerned about the power of his arguments than the politics of the judicial selection process.  “We have always believed that we are very strong on the merits of the case,” he told me.  “We’re still hopeful that the court will hand us a victory.”

The court may eventually do that, but Scalia’s death makes achieving that end more difficult.

See the article here.