The Supreme Court v. the Paris Agreement

As the Roberts court issues a stay on Obama's Clean Power Plan, the future of U.S. climate commitments remains uncertain.
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As the Roberts court issues a stay on Obama's Clean Power Plan, the future of U.S. climate commitments remains uncertain.
U.S. Supreme Court Associate Justice Antonin Scalia and Chief Justice John Roberts in the Supreme Court building in 2010. (Photo: Chip Somodevilla/Getty Images)

U.S. Supreme Court Associate Justice Antonin Scalia and Chief Justice John Roberts in the Supreme Court building in 2010. (Photo: Chip Somodevilla/Getty Images)

A few hours after nearly every country in the world adopted the Paris Agreement last December, John Kerry went into enemy territory. Backed by the blinking lights of the Champs-Élysées, the bleary-eyed secretary of state clipped on an earpiece and started fielding questions from Fox News Sunday’s Chris Wallace.

One of the main objections American conservatives have to any global climate deal is the fear that other countries will renege, making money off dirty energy while Americans sacrifice to clean the atmosphere like a bunch of chumps. Wallace’s line of questioning reflected that skepticism: "How much can we count on any pledge that a country makes?" Kerry responded that all the parties had submitted national plans to reduce carbon emissions, and that the deal mandated consistent reporting on their progress. The Fox anchor, unfazed, repeated the question. "But is there anything binding, sir."

The irony is that no one is more likely to scuttle any nation’s carbon pledge—and, by extension, the Paris Agreement—than Fox’s core audience in the Republican Party, which sits at a uniquely cozy nexus of energy company money and science denial. Whether they think man-made climate change is all a big hoax or just a stalking horse for socialism, the one thing almost all GOP politicians agree on is that we shouldn’t do anything about it. That’s why, in Paris, President Barack Obama's administration said it made sure the deal was crafted in a way that would avoid the Republican-controlled Senate—including making sure there were no binding enforcement mechanisms built in.

But this week, another branch of government emerged as a threat to the plan. Chief Justice John Roberts, backed by his four fellow Republican appointees on the Supreme Court, barred the Obama administration from taking any steps to implement its plan to reduce carbon pollution from existing power plants until the courts reach a final decision on the plan’s legality.

If the stay lasts until next inauguration day, and a Republican takes office, the plan could be killed off before the court even has a chance to take action.

The administration’s program, dubbed the Clean Power Plan, is the centerpiece of the United States' climate pledge and thus a linchpin of the Paris Agreement. It is aimed at helping to cut U.S. emissions to 26 percent below 2005 levels by 2025 to keep global temperatures from rising by two degrees Celsius above pre-industrial levels. (We’re already at 0.85 above.) Roberts’ stay effectively halts that program in its tracks until the slow legal process works its way out, which could take months or years. More troubling, it signals that the high court’s conservative majority might well be leaning toward striking down this package of Environmental Protection Agency regulations entirely.

Legal experts say it’s unprecedented to halt a federal safety regulation until a court can decide whether it’s constitutional. That’s because the standard for granting a stay requires proving that the law will cause irreparable harm. Robert’s terse 120-word order of delay does not explain his reasoning.

The move seems to have surprised even the state solicitors who asked for it. West Virginia Attorney General Patrick Morrissey, one of two lead attorneys on a petition by 29 state governments to overturn the regulations, could barely contain his joy during a hastily organized press conference in his law library. Wearing a gray chalk-striped suit, he called the stay "historic," "monumental," and a rare victory for his state’s coal industry.

The coal industry has been in free fall. Much of that has been caused by a natural gas drilling boom driving down the costs of that fuel, which is a pollutant but has lower emissions than coal. But coal industry advocates and local officials prefer to tell laid-off workers and angry voters that federal anti-pollution regulations are to blame. (In fact, experts say that both forces are working in tandem.) West Virginia’s economy is benefiting from its share of the natural gas-rich Marcellus Shale too. But, as in much of the country, jobs aren’t growing as fast as profits, and the unemployment rate, though lower than it was in the early 1990s, has not recovered from the 2007 financial crisis.

While mining as a whole provides only about five percent of jobs in the state, coal mining remains the symbolic heart of the West Virginia economy—which is why about a dozen state lawmakers crowded into the shot behind Morrissey to claim a share of the temporary victory.

The coal industry is happy to blame its decline on environmentalists too. Jason Hayes, the associate director of the American Coal Council, said the "immediate and irreparable harm" that Roberts was preventing was the closure of coal plants and the loss of jobs. "I can show you people. I can take you to someone’s house who’s lost their job. They [climate change advocates] point to some indistinct future potential harm. That’s the real difference." (Scientists say predicted effects of climate change are already happening.)

Jody Freeman, a Harvard University law professor who served as White House counselor for energy and climate change under Obama, disagrees. "There’s no argument for irreparable harm," she says. "There is no obligation on the part of the federal government to preserve the market share of the coal industry."

Neither side could say for sure what the real-world effects of the stay would be. Hayes could not provide numbers on how many jobs might be protected, if any, and neither a spokeswoman for the EPA nor the climate advocates whom I interviewed could estimate the emissions that might be released as a result.

The Obama administration and its climate allies also maintain that many more jobs will be created in the renewable energy sector. Compared to other countries’ pledges, the U.S. plan under Obama is actually pretty conservative—"at the least ambitious end of what would be a fair contribution," according to the Climate Action Tracker.

Both Morrissey and his fellow lead counsel, Texas Attorney General Ken Paxton, who joined the press conference over a wonky phone line, tried to avoid the issue of climate change entirely. Each evaded an Associated Press reporter’s question asking if they believed climate change was real and man-made. "This case is not about climate change. This is about federal overreach. It’s about the power of the president to just change law. It’s about our desire to have Congress make those changes," Paxton said.

Punting to Congress is definitely a safe move for industry advocates and climate deniers. Republican leaders, including Majority Leader Mitch McConnell from West Virginia’s neighbor, Kentucky, have pledged to do anything possible to fight regulations aimed at mitigating climate change. Energy companies have spent $21 million on this congressional election cycle, three-quarters of which went to Republicans; since 2012, the coal-mining sector specifically has given 96 percent of its campaign spending to the GOP.

All the remaining Republican presidential candidates have also come out against making global warming a policy priority—if they haven’t just denied the science on climate change completely. If the stay lasts until next inauguration day, and a Republican takes office, the plan could be killed off before the court even has a chance to take action.

What really matters, all sides say, is the long term—whether the court will decide that the federal government is allowed to set emissions standards for the states, or whether the CPP will be eliminated one way or another. The EPA is trying to sound upbeat, issuing a statement saying the agency "will continue working with our partners to address carbon pollution."

But the other parties to the Paris Agreement may not be so sure that they can count on the U.S. to uphold its pledge. "Other countries are going to rightly wonder, ‘What does this mean?’" Freeman says of the stay. "If it does get struck down it’s going to be impossible for the U.S. to meet its commitment"—unless a future president finds a different path, or a future Congress changes its mind.


Catastrophic Consequences of Climate Change” is Pacific Standard’s year-long investigation into the devastating effects of climate change—and how scholars, legislators, and citizen-activists can help stave off its most dire consequences.