Scalia's Death May Have Saved the Planet

We may earn a commission from links on this page.

The United States’ commitment to combatting climate change will affect the entire world. Last week, the Supreme Court froze Obama’s plan to uphold that commitment, sparking fears that the Paris climate agreement would fall apart. But the death of justice Antonin Scalia over the weekend changes everything.

Scalia might have been surprisingly progressive on technology, but when it came to climate change, the justice was a staunch defender of the proud American tradition of doing nothing. In 2007, he wrote an alarming dissent to a landmark Supreme Court ruling that the EPA can regulate carbon dioxide as a pollutant, on the grounds that “it is not the Atmospheric Protection Agency.” In 2006, when the attorney general of Massachusetts gently reminded him which atmospheric layer was suffering the most from carbon emissions, Scalia replied:

Troposphere, whatever. I told you before I’m not a scientist. That’s why I don’t want to have to deal with global warming, to tell you the truth.


Scalia popularized this use of the “I’m not a scientist” line, always followed by some shady deductive reasoning that makes him therefore absolved of any responsibility to help save our planet.

And on February 9, along with four other Supreme Court justices, Scalia voted to put a stay on Obama’s Clean Power Plan, a signature set of environmental rules for combatting carbon pollution and transitioning the US to a clean energy economy. With his death, the odds of that plan surviving—along with the Paris climate agreement and, inevitably, humanity—just got a lot better.


The Paris agreement, in which 195 countries agreed to combat climate change by slashing their carbon pollution to stay within a 2-degree Celsius global warming target, was based largely on trust. (A binding emissions agreement was not reached, for fear of it being struck down by rabidly anti-science meat popsicles in the US House of Representatives.) The onus was on each individual country to come up with a suitable plan and to reduce its carbon emissions accordingly. For its initial pledge, the US—historically the largest carbon emitter, now the second largest after China—promised to reduce its emissions by 26 to 28 percent by 2025. The only credible way for the US to meet that goal was the Clean Power Plan, which mandates that each state reduce its power plant carbon emissions by a third by 2030.


It took years of glacially slow international negotiations to get everyone on board with universal participation in climate action. Developing countries, many of whom are already facing the catastrophic effects of climate change, have historically argued that it’s unfair for them to be forced to slow their economic growth, when it’s the US and other developed nations who got us all into this mess. (Fair point.) In fact, it was the inability of rich and poor nations to compromise that doomed the Copenhagen climate talks in 2009. In December, two decades after the first climate talks and more than fifty years after scientists began sounding the alarm, the world finally reached a consensus that all nations needs to get off fossil fuels.

If the United States jumped ship now, that would be nothing short of catastrophic for global climate action. Navroz K. Dubash, a senior fellow at the Center for Policy Research in New Delhi said the United States potentially backing out would be “the proverbial string which causes Paris to unravel.” That’s precisely the scenario that was beginning to look very likely last week.


Since Obama introduced the Clean Power Plan last summer, over two dozen states have sued the federal government, calling the plan a “power grab,” and “the most far-reaching and burdensome rule the EPA has ever forced onto the states.” Last week, Scalia and four other justices put a freeze on enforcement of the new rules until litigation moves forward—an unprecedented move that, as Harvard law professor Jody Freeman told the New York Times “indicates a high degree of initial judicial skepticism from five justices on the court.”

It’s expected that the Clean Power Plan will eventually make its way to the Supreme Court for a final verdict, where it probably would have faced a swift death. As fate would have it, Scalia died first. A court that was 5-4 against the Clean Power Plan is now split evenly. And it seems very unlikely that Obama, who has made saving the planet his presidential moonshot, would nominate an anti-environment justice to take Scalia’s place.


Of course, Senate Republicans are already swearing on their mothers’ graves to block any Supreme Court nomination the president puts forward in his last year. So at this point, it’s anyone’s guess whether we’ll have a climate-friendly court by the time the Clean Power Plan makes its way back. If approval of a new justice is delayed until the Cruz administration takes over, you can bet the Clean Power Plan—along with every other pro-environment idea the president has put forth these last few months—is going to be cast into the proverbial saralacc pit.

And if that’s the case, what for the Paris climate agreement? Well, we need only look to the 1997 Kyoto Protocol for a striking example of where climate treaties go without US leadership: nowhere.


In his death, Scalia has scored a win for the planet. But the battle for Earth is far from over.


Image: Getty

Follow the author @themadstone