However worrying Tuesday was for the success of xenophobic politics in America, it might have been more worrying for the planet’s climate.
The idea wasn’t for naught. Coal stocks tanked over the last year, and many of the largest American coal companies have filed for bankruptcy. In fact, opponents of the plan cited this exact effect in their brief: The “EPA hopes that, by the time the judiciary adjudicates the legality of the Power Plan, the judicial action will come too late to make much if any practical difference,” said one brief from the Harvard law professor Laurence Tribe. He called the plan a “targeted attack on the coal industry.”
The court’s stay means that that effect might go on pause, at least domestically. It could also push the entire timeline for the regulations forward. Previously, states had to submit compliance plans by this summer, though they could request an extension to 2018. But now, the D.C. circuit isn’t scheduled to hear the EPA’s case until June, and any appeal wouldn’t wind up in front of the Supreme Court until the fall at the earliest. By that time, of course, the White House will have changed hands—which means, short of defending this regulation, the Obama administration is running out of ways to push climate in the direction it wants.
Somewhat oddly, if the Clean Power Plan gets sullied by the Court, a future (Democratic) president’s EPA could take a more direct approach. Legal challenges to the rules have tended to focus on their mechanism under the Clean Air Act, not their ultimate target. If this plan gets thrown out, the act would allow the agency to more directly command and control carbon-dioxide emissions. The agency took a broader, gentler approach with its current plan; if it’s compelled to stick closer to the letter of the law, it could order far deeper cuts.
In a way, the Clean Power Plan mirrors the world’s approach. The world’s post-Paris climate strategy has been to talk a better game than it was actually playing. By adopting an ambitious climate agreement, and implementing incremental carbon-mitigating rules in many countries, the international community hoped to tell investors that it was time to get out of the fossil-fuel business. As John Kerry put it, by “sending a message to the global marketplace,” the world would transition away from coal, oil, and gas far more easily than a directly regulated (and politically impossible) change. But in the United States—the home of the only major political party that rejects climate science—some of the sellers in that marketplace are talking back.
The Clean Power Plan—and the EPA’s resolve to regulate greenhouse gases—depends on the same ultimate mechanism it always did: that Democrats win the White House in November. If they win, they can defend the regulation, alter it as needed, and they have time to favorably adjust the Court’s balance on future cases. And if the Republicans win? Who knows what happens, but it’s worth noting that no remaining GOP candidate supports regulation to halt climate change’s advance. Donald Trump and Ted Cruz don’t even think it’s real.