There was always something suspicious about the Supreme Court's key 2007 decision on climate change, Mass. v. EPA, that gave the Environmental Protection Agency authority to regulate carbon dioxide under the Clean Air Act. How could a majority right wing court that always backs big business possibly have ruled that carbon dioxide was a pollutant? Why would the conservative Roberts court put in place the foundation of a strong national climate policy -- the Clean Power Plan -- that later led to a strong global agreement on climate? It always seemed too good to be true.
It turns out it was. It may be that the court did not fully understand the implications of their decision, and now regret it. That thesis was borne out this month when the Court, unexpectedly, unprecedentedly, and without comment, put a stay on the Clean Power Plan while litigation proceeds. The stay will delay implementation of Obama's signature greenhouse gas reduction plan until the end of his term. While environmental groups have called this ruling a blip, the truth is, the president controls the EPA, and the next president might not agree. If the plan were allowed to proceed without delay, it would likely be too late to change directions by the next term.
In the same way that Obama did everything in his power to regulate greenhouse gas emissions by using the EPA to control coal plant emissions, the Supreme Court has now done everything in its power to prevent Obama from taking action on climate.
The court certainly seems to be flip-flopping here: did they originally authorize the EPA to regulated carbon dioxide, or not? In this month's ruling in favor of utilities, states and coal miners that argued the EPA had exceeded its authority and violated states' rights, perhaps the answer is "not so much." The fact that the Court has expressed reservations now puts the entire plan at risk. It seems like bait and switch. Not only did climate activists have Mass. v. EPA on their side, but only a few weeks ago a D.C. appellate panel ruled unanimously against the same miners and utilities. The venality and aggression of the Supreme Court move -- overturning a unanimous opinion, offering no explanation, making the unprecedented step of halting a federal rule already in effect-suggests something more sinister than flip flopping or mere bait and switch. It brings to mind the Balrog.
In The Lord of the Rings, the wizard Gandalf is forced to fight a terrifying monster, the giant and powerful Balrog. After nearly dying in the fight, Gandalf forces the Balrog off a bridge into a chasm. Victory seems at hand, just like it did after Mass. v. EPA and the implementation of the Clean Power Plan. But the Balrog, falling through the air, swings its whip in a Hail Mary arc, snagging Gandalf by the ankle, and pulling him into the chasm.
Yes, it's true that coal, the source of a third of U.S. greenhouse gas emissions, is in inevitable decline, relentlessly pushed aside by cheaper and slightly cleaner natural gas, by the plummeting costs of renewables, and by a public (both in the U.S. and China) that is over the notion of burning rocks to make energy.
But as scientists will tell you, the battle against climate change is a fight against time, and, like the race to destroy the ring, it carries no guarantee of success. We'll need all the help we can get, including what spells our wizards can divine. The Clean Power Plan, and its precedent, Mass V. EPA, were the magic of climate activists, conjured in the face of a conservative court and a congress steeped in fossil dollars.
C.S. Lewis told his friend J.R.R. Tolkien that his saga of a quest to destroy an evil ring, which succeeds, but leaves the world at least partially ruined, reminds us "that victory is as transitory as conflict, leaving a final impression of profound melancholy." So too in our own story, this climactic battle in the age of men.