Who would have imagined a year ago that one day we would be hoping for a court decision on the Clean Power Plan and for our president to weaken the newly-signed Paris Agreement? With the GOP disorganized and Trump in the White House, the Judicial Branch appears to be the last bastion of competent, sane governance.
It’s in the courts, then, that the resistance will rise. Yesterday Politico Pro rolled out story after story- “Greens sue for Pruitt’s schedule, emails” at 11:40am, “Greens sue over EPA stay of coal plant discharge rule” at 12:13pm, Greens “sue to block Trump’s offshore drilling order” at 1:18pm.
But court cases aren’t always as cut and dry as we might hope. Case in point is the recent decision on the Clean Power Plan. Well...non-decision, really. It’s all a bit murky, but in our not-at-all-a-lawyer opinion, it looks like a loss for those of us who don’t like kids dying of asthma, but not as much of a win as Pruitt and the Polluters had hoped. The court told both sides of the suit to take 60 days to present a written argument on whether it should remand the CPP, or put it into an indefinite abeyance. In simple English, the court asked if it should decide to issue a ruling that would close the court case and formally kick it back to the EPA to review and revise, or to hold off on ruling, and just put the lawsuit on ice for as long as the EPA needs to figure out what it wants to do with the CPP.
Key detail: for as long as the court case is ongoing, the CPP remains stayed--in other words, not in effect. If the court decides to remand it, that ends the case and puts the CPP back into effect while the EPA undertakes the years-long process of reviewing, revising, and replacing. Whereas if the court decides to accept Pruitt’s request to pause the case while he figures out what to do, this would essentially allow the EPA to keep the CPP from coming back into effect for as long as he can stretch out the revision process.
Although it may seem like a loss for Americans, the closest we are going to get to a win is if the court makes a decision so that the stay will be lifted. If the decision upholds the CPP, it will just make Pruitt’s job a little harder in justifying revisions. If the decision sides with the challengers and rejects the law back to the EPA, at least it will enter back into force while the EPA reviews.
Confused yet? No? Well hold on, because it gets even crazier!
Because, of course, Paris. As Trump decides whether to stay in and weaken our emissions targets or walk away entirely, greens are in the unusual position of trying to convince him that A) he should just lower our commitment because B) they wouldn’t win a lawsuit to prevent that reduction and C) other countries wouldn’t be able to sue the US for this retreat.
This decision to press the president to do less on climate, and the decision to leak a document showing they would lose in court, is a result of an unexpected move in last week’s Administration meeting, where Bannon and Pruitt brought legal analysis of the Paris agreement that was...well… we’ll call it “novel.”
The deniers (bullshitters) claim that the agreement only allows for countries to strengthen targets, and that staying in Paris opens Trump up to lawsuits. The negotiators who were actually there (namely Todd Stern) are calling their bluff. And in fact, in the wake of Fukushima, Japan already weakened its commitment so clearly it is not against the rules.
Let’s be clear: Trump is not going to be swayed by legal analysis. Trump’s international diplomacy thus far has been to stake out a controversial isolationist position like exiting NAFTA, then doing an about-face when he talks to his…”peers” running other nations or corporations.
So if any of you readers happen to be a CEO of a Fortune 500, please tell Trump pulling out of Paris would be bad for American business. Or if any world leaders happen to be reading, please give Trump the 10 to 15 minute crash course on Paris and why it’s not at all at odds with his “America First” rhetoric.
As for us, we’ll just be over here hoping for a loss in the CPP court case and a weakened commitment to climate action, apparently.
Never before has the phrase “can’t win for losing” rang so true.
Top Climate and Clean Energy Stories: