WASHINGTON -- The Supreme Court issued a setback to the Environmental Protection Agency's plan to cut emissions from power plants this week, which tipped off an avalanche of stories bemoaning what a big blow this is to President Barack Obama's climate agenda.
You can read lots of very smart people writing about why this is a Big Deal. And they're right -- it will be a very big deal if the Supreme Court eventually throws out the country's signature climate law. But I'm not freaking out yet, for five reasons.
The action is in the states now, anyway. The Clean Power Plan gives each state a specific target for cutting emissions, but then the states are charged with coming up with their own plan for meeting that target. The plans are due by 2018. States that like the Clean Power Plan will continue their work on meeting the targets; states that don't like it, including most of those that are suing the EPA, won't. EPA staff can still consult with the states as they develop compliance plans -- this stay doesn't prevent them from doing that. It only means they can't enforce any of the deadlines or require states to comply until the Supreme Court issues a final decision.
The court has already affirmed that the EPA can regulate greenhouse gases. The court may eventually throw out the Clean Power Plan if it finds that the rule does not comply with the Clean Air Act or is otherwise constitutionally problematic. But the court is not likely to say the EPA can't regulate greenhouse gas emissions at all. In fact, the whole reason we're at this point in the national debate is the court's 2007 ruling in Massachusetts v. EPA, in which the court said the agency not only could but shall regulate greenhouse gas emissions under the Clean Air Act if it finds that those emissions endanger public health. When efforts to pass a new, climate-specific law in Congress failed, the legal mechanisms were already in the works to produce greenhouse gas regulations under the Clean Air Act.
Anthony Kennedy is a wildcard. The swing justice may have sided with industry groups and the more conservative members of the court on the stay, but he also sided with the states and environmental groups in favor of regulating emissions under the Clean Air Act in 2007. This case will likely come down to his vote, but that's true of basically anything these days. Every litigant in town would love to know what's going on inside Kennedy's head. If you believe you know how Kennedy will fall on the Clean Power Plan, well, I have some beachfront property in south Florida that I would love to sell you.
Emissions cuts are happening anyway. The Clean Power Plan calls for the United States to cut its emissions from power plants 32 percent by 2030, compared to 2005 levels. We're already more than halfway toward that goal. According to the EPA's database, fossil-fuel-powered plants generated 2.54 billion tons of carbon dioxide emissions in 2005. They were down to 2.075 billion tons in 2015 -- an 18.3 percent drop. That's largely due to market trends -- natural gas, wind, and solar have all gotten cheaper in recent years -- not EPA regulations.
Lots of states are going to act under Clean Power Plan anyway. Twelve states have issued formal statements saying they still intend to move forward under the plan; eighteen states are backing EPA in the lawsuit. And two of the states suing to stop the rules -- Michigan and Arkansas -- are actually moving forward with compliance plans even as their attorneys general try to bring it down.