The Obama administration, increasingly frustrated by Congressional hostility to any efforts to contain greenhouse gases, has turned to the EPA as a tool for reining in carbon emissions. The agency is developing regulatory standards under the Clean Air Act to reduce carbon pollution on a number of fronts. It is coordinating with the National Highway Traffic Safety Administration to promote new technologies with the goal of reducing carbon dioxide emissions from motor vehicles by 3,100 million metric tons by the year 2025. It is implementing rules requiring minimum amount of renewables in transportation fuel, setting national limits on carbon emissions by power plants, and implementing rules which are expected to bring about a 95% reduction of volatile organic compound emissions from fracking gas wells. Where Congress has refused to act, the Agency has embarked on an aggressive and far-reaching effort to fill the void.
But the agency’s efforts to curb America’s copious carbon discharge may encounter a fatal snag in an unexpected place: the Court of Appeals for the District of Columbia Circuit. It is this court, arguably the second most important in the country, which reviews decisions and rule-making by many federal agencies,including the EPA, and has jurisdiction over regulations enacted under the Clean Air Act, the very act upon which the EPA is basing its regulations. The D.C. Circuit Court has a conservative reputation and environmentalists have been growing increasing concerned about the likelihood of it de-clawing the EPA’s efforts. As Steven Pearlstein has written in the Washington Post, the D.C. Circuit represents a “ new breed of activist judges …waging a determined and largely successful war on federal regulatory agencies.”
Without question, the court is well positioned to block the administration’s efforts to regulate greenhouse gas emissions via agency action. The administration, however, is determined to counter-balance the political composition of the court. The court currently has three empty spots on the bench. The administration has put forth candidates to fill the vacant seats, a move which has some Republican politicians reaching for Orwellian political analogies. Senators Mitch McConnell and Charles E. Grassley accused Obama of “court-packing”, as though simply filling long-vacant seats on the court were the equivalent of President Roosevelt’s efforts to expand the size of the Supreme Court, a plan that would have resulted in a total of six new justices at the time. The senators know perfectly well that the D.C. court, like many others across the nation, is under staffed – it’s just in their interests to keep it that way. A dysfunctional, chronically short-staffed, and conservative court is exactly what is called for to keep the EPA’s hands off the climate control switch. The New York Times has called Republican intransigence on filling the court’s vacancies “something not far from a crisis in our constitutional system.”
Readers of this blog are well aware of the necessity of tackling global climate change. Faced with a stone wall of willful denialism and industry resistance, the administration had little choice but to turn to the EPA. The political battle over greenhouse gas emissions has now shifted inexorably to the courts: The Republican’s bone-deep hostility to regulation has assured it. Filling the D.C. court’s empty seats is likely to provoke more than a skirmish. It could turn into a major battle in the country’s – and the globe’s – efforts to keep from cooking itself to death.