U.S. court kicks climate back to Administration, for now

Euro-Disney, meet American law.

Germany’s most recent nuclear phaseout (see article) is a true head-shaker. Germany led the way in calling for countries to line up behind the Kyoto Protocol on greenhouse gas (GHG) emissions. The nuclear phase out will increase Germany’s dependence on:

1. French nuclear power (according to the European grid operator, Germany is importing French nuclear power right now), and
2. German lignite-fired (i.e., coal-fired) power.

Coal-fired power generation, in case anybody has forgotten, puts 900 to 1000 grams of carbon dioxide (CO₂) into the air for every kilowatt-hour it generates. And CO₂, in case anybody has also forgotten, is the principal GHG proscribed under Kyoto.

So, in phasing out domestic nuclear, Germany will just increase its use of foreign nuclear and domestic coal. The latter will increase GHGs.

Those whose heads are still shaking over Germany’s boneheaded move may experience a shift in head motion, from shaking to spinning, when they consider the prospects for GHG abatement in the U.S. after this past Monday. On that day, the U.S. power generation industry was spared a seismic upheaval when the Supreme Court shot down a lawsuit against coal-fired power generating utilities over the amount of CO₂ they put into the atmosphere.

Legal action against emitters is not new in the U.S., but the doctrinal basis of the action in Monday’s ruling, public nuisance, represents a new tack on the part of plaintiffs against emitters. This case has been brewing for the last few years, and I have been following it in this blog. If successful, it would have imposed legally enforceable caps on CO₂ emissions; this is what I mean by seismic upheaval.

But it was not successful. The justices told the plaintiffs—a number of state governments—that the more appropriate way to force the utilities to cut CO₂ is through regulation, not legislation:

“The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue.”—Justice Ginsburg, in delivering the opinion of the Court

The Environmental Protection Agency is part of the executive branch of the U.S. government. This means the climate ball has been punted back to the Obama administration. As long as the administration keeps possession, climate change will be an issue of pure politics.

So how will the issue play out? Obama made clear during his 2008 presidential campaign and in the first year of his presidency, that he wanted tough action on climate change. Climate change, where humans are concerned, is all about CO₂, and CO₂ is what you get, among other things, when you burn fossil fuels like coal and gas. Half of America’s electricity comes out of plants that burn coal. For excellent political and economic reasons, doing something about the two billion tons of CO₂ that comes every year out of U.S. coal-fired plants is much easier said than done (see article).

This is why meaningful CO₂-abatement action has been such a hard political sell in the U.S.

Will it be any easier now that the supreme court has punted the climate ball to Obama? Of course it won’t. The U.S. faces an enormous budget crisis, and climate action has been successfully portrayed as expensive. The only available energy source capable of cutting CO₂ emissions while delivering huge amounts of electricity 24 hours a day is nuclear energy. In the current climate of media hysteria over the Fukushima situation in Japan, in which nobody has died, nuclear energy is an exceptionally tough sell.

So I don’t envy Obama. But then again, this is why he wanted to be president. It’s all about leadership. Leadership, said Bob Dole when he was himself running for president in 1988, is when the give you the ball. “Sometimes you don’t even want the ball… .” I guess we will see how badly Obama wants it.

If Obama drops the ball, or punts it to his successor, or loses a political fight with a congress that appears hostile to any kind of action on CO₂, then the aforementioned plaintiffs might revisit the legal route to CO₂ reductions. Your head can spin at all the scenarios that could play out.

And heads must be spinning here in Canada. Canada’s entire climate policy strategy has since Bush II hung on what America decides. There are sixteen months between now and the time we find out if Obama serves another four years as president. The question is, how big of an issue will climate change become in those sixteen months?