A Conservative Supreme Court Will be Better for Climate Action

Source: By Charles Hernick, Citizens for Responsible Energy Solutions Forum • Posted: Monday, October 26, 2020

Climate change came up in the Presidential and Vice Presidential debates and already in the Supreme Court confirmation hearings for Amy Coney Barrett, as it did for Justices Kavanaugh and Gorsuch. The overwhelming majority of Americans are interested in the issue, including over 70 percent of Republicans who favor federal climate action. As the Senate weighs Ms. Barrett’s confirmation, it is worth considering the implications of a conservative Court on climate action. The news is good.

When it comes to climate change, it has been a year for the record books; not because of fires and hurricanes, but because of the number of actionable climate solutions introduced in Congress by Republicans, Democrats, and in a few cases members from both parties. This is heartening, and appropriate if we use the debates over the makeup of the Supreme Court as a reminder in basic civics.

The Constitution empowers Congress, not the executive branch or the judiciary, with the powers to make laws meant to solve the challenges facing our country—including climate change. The Supreme Court already has reined in the executive branch once on climate change through the Obama Administration’s Clean Power Plan. It proved a bulky regulation that the Court froze in 2016 because the executive branch had exceeded Congress’ original authorities granted under the Clean Air Act and violated principles of cooperative federalism.

A more conservative Court will assure that federal climate action is firmly rooted in laws crafted by Congress. It also will force climate activists to choose a path to tackle climate action based on well-established federal and state jurisdictions.

Respecting states’ rights is not code for climate inaction; it clearly defines a path for policymaking success.

The U.S. leads the world in greenhouse gas emissions reductions because of complementary federal and state policy. Future emissions reductions can be achieved by doubling down on and expanding proven successful policies and approaches instead of pursuing policies that would upend the rights of states under the Federal Power Act of 1935 to shape their resource mixes.

Since 2005, the federal government has provided tax incentives for renewable energy after passage by a Republican-controlled Congress. This effective signal to the marketplace focuses on lowering costs, not hiking prices for consumers. It has been complemented by state-specific policies ranging from goals or mandates for renewable power to more inclusive clean energy standards.

States are the laboratories of democracy, and the experiment is working to reduce greenhouse gases faster than predicted.

Certainly, more climate action is needed by both federal and state governments. But a deliberate approach that doubles down on what is working and empowers the marketplace will drive down emissions faster than trying new paths that are likely to lead to delay and years of litigation in court.

Finally, concerns that a conservative Court would topple Massachusetts versus EPA (2007)—which found that EPA could regulate greenhouse gas emissions—are overstated. Conservative justices hold historical legal precedent in high regard. The authority granted to the U.S. Environmental Protection Agency is not in question. The Clean Air Act’s regulatory authority is well-established. And the science  linking anthropogenic contributions to our changing climate has only become more robust and well-understood over since EPA’s endangerment finding in 2009.

The tension between state powers and the federal government is as old as our Republic itself. Climate action must avoid delay or stalls in legal irons. Rather than trying to bridge a policy gap by litigating against oil companies, a transparency and accountability framework could encourage more corporate leadership. Instead of focusing on “day one” executive orders, expectations should be raised for the bipartisan climate salutations that have started to take root in Congress. As such, a conservative Supreme Court should be welcomed by climate activists as the final arbiter of Constitutional questions and assuring “equal justice under law”—and not as a maker of the laws.

Charles Hernick is the Vice President of Policy and Advocacy at Citizens for Responsible Energy Solutions (CRES), a nonpartisan, nonprofit 501c(3) organization committed to educating the public and influencing the national conversation about clean energy.