As a public interest attorney and law professor, I’ve admired Justice Antonin Scalia’s strong intellect and passion even if I don’t share his legal philosophy and sometimes think that his “vivid” writing style is neither civil nor constructive for the courts. As a compassionate person, I join with others in mourning his passing. As a dedicated environmentalist, I recognize the breath of fresh air that this turn of events infuses into the federal courts’ review of the Clean Power Plan, which is a vital legal building block for United States’ leadership to help solve global climate change problems. In short, the Clean Power Plan now has a better chance of being upheld on appeal during the incessant litigation brought by coal companies and some states to stop it from ever taking effect.
The U.S. EPA’s Clean Power Plan is based on the Clean Air Act’s requirement that the agency must regulate to reduce pollution, including carbon dioxide, which endangers public health. In Massachusetts v. EPA (2007) and American Electric Power (AEP) v. Connecticut (2009), the Supreme Court upheld the EPA’s authority to regulate carbon dioxide and other greenhouse gas pollution under the Clean Air Act. For the power plant sector, the Clean Power Plan sets overall pollution reduction targets to be achieved by each state and provides flexible approaches to accomplish the results.
The Clean Power Plan isn’t the only way for the United States to show leadership and meet its greenhouse gas pollution reduction commitments made at the Paris COP21 Climate Conference. Rapid improvements in solar energy and wind power equipment and in energy efficiency technologies, including LED lighting and better ballasts, are transforming and cleaning up the electricity sector. Congress recently extended the federal production tax credit for wind power and the federal investment tax credit for solar energy. That supports investments and accelerated growth of these clean technologies. These are important actions that can help hold down global temperatures and mitigate climate change.