Spinning the Stay

A few days before the start of the COP-21 meeting in Paris, U.S. climate negotiator Todd Stern filed a declaration urging the D.C. Circuit Court of Appeals to deny West Virginia and other states’ request to put a stay on EPA’s so-called “Clean Power” Plan (CPP). Stern argued that freezing the rule would undermine U.S. “leadership” on climate change, creating “a real threat that some other countries, including major emitters, might reduce the intensity or pace of their actions or even fail to achieve their commitments.” Horror of horrors, it might diminish their climate “ambition”.

Although the appellate court declined to halt the rule, the Supreme Court this week granted a stay. So now what are administration officials saying? Do they stand by their earlier claims that suspending the CPP threatens the climate treaty?

No way. According to Climate Progress blogger Joe Romm, “Senior White House officials said on a media call Tuesday evening that this was a temporary procedural determination that does nothing to affect the soundness of the rule, nor the White House’s determination to proceed with the rule and to cut emissions. They expressed confidence that the administration’s climate targets were achievable, citing momentum in the renewable power sector.”

“Heck,” Romm opined, “it [the stay] doesn’t even mean that the United States won’t be able to hit the CO2 reduction target it pledged with the other nations of the world in the Paris Agreement. Indeed, I expect with or without the CPP, the U.S. is probably going to meet its Paris pledge, its Intended Nationally Determined Contribution (INDC), to cut greenhouse gas pollution 26 to 28% below 2005 levels in 2025.”

That’s whistling past the graveyard. Stephen Eule of the U.S. Chamber’s Institute for 21st Century Energy has done the math. Even if we include the Power Plan—the largest single component of the U.S. INDC—all current and proposed administration climate policies account for only 55% of Obama’s emission pledge. Remove the CPP, and the “gap becomes a chasm,” according to Eule.

Administration officials and environmentalists are in “full damage control mode,” reports Jean Chemnick in today’s ClimateWire ($). Why? Because the “high-profile signing of the Paris climate agreement in New York City on April 22 will now take place under the cloud of this week's Supreme Court decision to stay the U.S. EPA Clean Power Plan.” As Harjeet Singh of ActionAid International in India told Chemnick: “The climate community is taken aback and concerned that it may see the same fate as the Kyoto Protocol, and the leadership that Obama showed, despite domestic political challenges, has also gone in vain."

Of course, none of that is a reason the Supreme Court should not have put EPA’s lawless rule on hold. Nor is it a reason the appellate court, which has scheduled oral argument for June 2, should not overturn the CPP.

In Massachusetts v. EPA, the Supreme Court held that EPA’s authority with respect to greenhouse gases could not be decided on the basis of “policy concerns” “divorced from the statutory text.” The Court specifically cited as irrelevant the concern that EPA climate rules “might impair the President’s ability to negotiate with key developing nations to reduce emissions.”

For either the appellate court or the Supreme Court, all that should matter in the Power Plan litigation is whether the rule squares with its alleged statutory basis, Section 111(d) of the Clean Air Act. There is no mention of either climate “leadership” or climate “ambition” in 111(d) or any other provision of the Act. Those concepts are not statutory factors and have no relevance to the case.