One court’s refusal to block climate change regulations may build pressure for compliance long before the war is over.
Those watching from the U.S. know, however, that everything in the climate space comes with an asterisk: Given a chance, conservative opponents will seek to undo President Barack Obama’s environmental policies and, by extension, undercut the Paris accord. On Thursday, in the first skirmish over new carbon-emissions rules, a federal appeals court in Washington refused to temporarily block their implementation. The war is on.
The decision didn’t address whether the new rules are legal. But the lack of a delay means the utilities, coal producers and two dozen states challenging Obama’s Clean Power Plan must start planning how to comply. The regulations are the first national standard for power plant carbon pollution: By 2030, they aim to cut U.S. CO2 emissions to more than 30 percent below 2005 levels. States and utilities must use less coal and more renewable energy, including solar and wind power.
The U.S. Court of Appeals scheduled arguments in the case for June 2, and may rule at any time this summer or fall. But the first deadline under the new rules comes Sept. 6, when all states must submit some version of their plan to the Environmental Protection Agency. States not wishing to make that the final version of their plan may request a two-year extension.
The big question is: At what point in the legal process will opponents start planning for compliance instead of resistance? Each step toward the U.S. Supreme Court—starting with the appeals court ruling, requests for rehearings, and ultimately, a petition to the high court—will force utilities closer to deadlines for compliance under the law, unless a stay is eventually granted.
There are a few outside-the-box chances for their deliverance. The Supreme Court could throw a wrench in the law’s works by ruling in an unrelated case. Immigration, another area in which the Republican-dominated Congress refused to play nice with Obama, is the subject of a lawsuit to be resolved around the same time as arguments in the carbon case. Since both deal with executive actions decried by legislators as unconstitutional power grabs, the justices—with a little creative reasoning—could kill two birds with one stone.
And even more dramatic, November’s presidential election could end the entire conversation.
“We are disappointed in today’s decision, but believe we will ultimately prevail in court,” says West Virginia Attorney General Patrick Morrisey, a lead plaintiff in the carbon rules lawsuit. “The court did not issue a ruling on the merits and we remain confident that our arguments will prevail as the case continues.”
But the ground underneath the climate change debate has been shifting. Whereas in previous years so-called deniers were accommodated in the public discourse, the accumulation of scientific evidence supporting the thesis that humans are changing the atmosphere and oceans has begun to drown them out.
More people believe climate change is real and dominated by human causes, polls show. Despite the usual caveat—it’s difficult for scientists to link any single extreme weather event to man-made warming—the fact is that climate change, to many, just feels true. As snow-fearing Americans on the East Coast are about to find out, there’s about five percent more water vapor in the air these days, and what goes up must come down.
Most Americans say they would support a tax on carbon dioxide emissions, additional renewable energy development, or both. In the end, the soft power of public opinion may be just as influential as an opinion written by a panel of federal judges.
On a more practical level, climate change is already becoming entwined with government and business. The EPA has issued rules cutting greenhouse-gas pollution from cars, trucks, and now power plants. It raised energy efficiency standards, greened government procurement, and built climate risk into the cost-benefit analysis of regulation. Just as Obamacare slowly became a fait accompli with every day that passed, emissions limits are becoming part of the way businesses do business: In New England, California and other countries, American companies are already paying to emit CO2.
The White House, while praising yesterday’s initial victory, extended an olive branch of sorts, maybe hoping its opponents will just give in. “We look forward to continuing to work with states and other stakeholders taking steps to implement the Clean Power Plan,” the administration said in a statement.
Perhaps circumstances will arise that force Republicans and Democrats into a grand bargain, a trade of all of Obama’s rules for a single national carbon tax and wider tax reform. A constellation of smaller things might occur, as with the quiet December compromise that lifted the U.S. oil export ban in exchange for five additional years of wind and solar power subsidies.
Perhaps not. But this procedural move by one federal court may wield subtle political effects. Suddenly, the Clean Power Plan looks a little more real than it did last week. That conclusion is likely to radiate out to to state capitals—and maybe even back to Washington.