In Death of Justice Hope is Born of the Climate Justice

powerpoint graphics for businessNever before in the history of supreme America, the elite Americans mourned so deeply

Never before in the history of supreme America, the elite Americans mourned so deeply the death of their Supreme Court Justice and at the same time vibrantly rejoiced itwith prospects of finally getting climate justice. To be accurate, those who mourned are unlikely to be those who celebrated.

Sincere feeling of bereavement over death of Justice Antonin Scalia originates from the shock of sad and sudden loss of the most original constitutional lawyer who indulged in innovative interpretation of the American Constitution since it was adopted in 1789, through the intellectual lens of conservative leanings. On the other hand, exultation springs from those who had helplessly watched Justice Scalia’s judgments that put the efforts to address global warming on back burner. Many added humorous shade to the loss of the truly stately figure; by describing him as the only conservatism Scalia rejected out-and-out was environmental conservation!

In last January, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit had unanimously rejected the same request for a stay on CPP. Now, after 9th February stay, the appellate panel has set oral arguments on the merits of the case for June 2 after which Supreme Court would take decision on CPP, may be in 2017.

John Kerry, almost at the stroke of midnight of 12th December of last year made a parting statement after the Paris agreement was adopted. The most alarming part of his statement was “And we have reached and agreement, (if) fully implemented, will help us transition to a global clean energy.” His emphasize on condition of ‘ full implementation’ for the success sent nervous waves across the delegates of 195 countries. Those waves reverberated even louder when he added “…. how we build this agreement, how we build it out for each of our nations…. that is what will determine whether we’re actually able to address one of the most complex challenges humankind has ever faced”.

Just 60 days after, on 9th February 2016, that uneasy apprehension came haunting again when President Obama’s Clean Power Plan (CPP), the most ambitious ever, received a jolt from blue. The Kyoto’s ghost left the climate watchers guessing if their worst fears on USA’s failure in ratifying Paris Agreement would come true.

CPP, first of its kind anywhere in the world, aimed to reduce carbon dioxide the main Green House Gas (GHG) emissions from coal using electrical power generation by 32 percent by 2030 relative to 2005 levels. The plan required, apart from reducing emission, increasing the use of renewable energy, and energy conservation. It also included the benefits like reduction in air pollution due to mitigation of black carbon, boosting the employment and positioning USA as climate leader in energy-transformation. CPP was flagship response of USA to fulfill its commitment under Paris Agreement.

The jolt to CPP came when U.S. Supreme Court bench consisting of 9 judges stayed it by 5-4 votes and granted a request by 27 states and various companies and business groups. These business interests thus blocked the game changing energy transformation ever attempted by USA. Justice Antonin Scalia was one of the 5 votes that blocked the plan and hence President Obama’s climate legacy.

Justice Scalia was republican nominee, like other four judges who blocked the plan. Interestingly, Justice Scalia’s vote in 2007 was unable to block one of the early initiatives of USA’s federal Environmental Protection Agency (EPA) to classify carbon dioxide as air pollutant. That ruling by Supreme Court, also by 5-4 margins, allowed EPA to start regulating carbon dioxide under its Clean Air Act. Justice Scalia was among 4 who refused to concede that Carbon dioxide is air pollutant. He reportedly stated in his dissent that “EPA is not APA-Atmosphere Protecting Agency’! I am not sure if that was the ‘originalism’ for which Justice Scalia was known for, nevertheless EPA was then able to formulate the very original transformative proposal to regulate the GHG emissions from coal-fired power plants.

4 days before his death, when Supreme Court stayed EPA’s plan of CPP, Justice Scalia might have been in a mood to revel his renewed ‘originalism’ to distinguish between EPA and APA. However, after his unexpected death Pandora’s box, as described in Greek Mythology, lays open with all the evils flowing out, leaving only ‘Hope’ inside. Hope for better planet, hope for climate-action, hope for science-based policymaking and technology-based solutions to global warming challenges.

The death of Justice Scalia has given rise to the hope that court battle could be won finally. After this stay, the case has to be litigated on the merits in front of the D.C. Circuit and then in front of the Supreme Court. Now that Justice Scalia has gone, it is expected that Scalia’s replacement may favor the CPP.

In any case, judiciary in the developed countries certainly enjoy their elite but exclusive status pampered by their allegiances to national partisan beliefs. Such privileged seclusion enjoyed by American judges totally overlooks the impacts of their rulings on environment of other nations as well as present and future humanity. Supreme Court is USA needs change in such perspective than simple replacement of Scalia.

The black carbon, for example, emitted by the coal-fired power plants in USA, particularly inefficient ones, have the potential to travel across its borders in the form of Atmospheric Brown Cloud (ABC). The ABCs, a mass of brown haze few kilometers above the earth are known to travel across the boundaries of the USA and contribute to air pollution in other countries, as noted by Nature, a well-known scientific journal. Black carbon also absorbs more heat, and when deposited on snow can accelerate the melting of snow affecting the natural cycle of flow of water into the rivers. Any delay in reducing such emissions, arising out of court battles, would have accelerated adverse impacts on ecosystems, water and health not only in USA but other countries as well. The developing countries on path of ABC would be affected most. Air pollution as per WHO takes toll of nearly 7 million deaths annually, mainly in the developing countries.

This opens up the debate on justice not only for the states and business groups in USA but more importantly for the climate- justice for the developing countries. END 17th Feb 2016

by Rajendra Shende, Chairman TERRE Policy Centre, IIT alumnus and former Director, UNEP.

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