As the Obama administration’s Clean Power Plan gets set to wind its way through the federal court system, the passing of former Supreme Court Justice Antonin Scalia in February has made the future of this rule murky. While the debate about the Clean Power Plan will continue for months regardless, the rule’s immediate fate could end up being decided in much less time.

That is, unless something changes in the Senate.

No. 9

The Supreme Court can conduct business without nine members, and in many cases, doing so hasn't had any impact on its rulings. But having only eight justices can, of course, have significant effect on a case by ending in a tie vote. A 4-4 decision would leave the ruling from the lower court intact, although unlike a Supreme Court decision reached with a majority vote, it would not create a binding legal precedent. That could leave the door open for future cases on the same issue.

We’ve already seen this happen: A Supreme Court case on union dues, widely expected to end in a 5-4 defeat for the unions before Scalia’s death, ended up receiving a 4-4 split decision which left in place a lower court ruling favorable to the unions.

In the case involving the Clean Power Plan, a challenge by 27 states and some industry groups on the Environmental Protection Agency’s authority in issuing the rule, this could be good or bad news. The plan's next stop is the D.C. Circuit Court of Appeals. Whichever way that court rules, the case almost certainly will be appealed, and we can expect the Supreme Court to take it up soon afterwards.

As it stands, though, the D.C. Circuit’s ruling could take on even more importance.

If the D.C. Circuit Appellate judges vote to overturn the rule, a tie at the Supreme Court would seal that fate, but without creating any binding national precedent that would make it harder to propose similar rules in the future.

If the Court of Appeals decides to uphold the rule’s legality, then a 4-4 decision by the Supreme Court could mean the law wins a reprieve it might not have had with Scalia on the bench. If the appellate judges vote to overturn the rule, a tie at the Supreme Court would seal that fate, but without creating any binding national precedent that would make it harder to propose similar rules in the future. 

Up in the air

The fate of the Clean Power Plan in the D.C. Circuit is unclear — while the court blocked a request to stay the rule or block it from being implemented while it continues through the courts, that does not necessarily mean the justices will vote to overturn it. (The Supreme Court ultimately voted, 5-4, to stay the rule, only four days before Scalia’s death.)

For their part, multiple business organizations, led by the American Sustainable Business Council (ASBC), submitted a "friend of the court" brief, which argued the rule will have a number of positive effects for the economy. ASBC is also collecting business signatures in support of the Clean Power Plan.

While a defeat in the D.C. Circuit would be bad news for the rule, there’s also a downside if they vote to uphold it yet the Supreme Court rules in a 4-4 tie: That would let the Clean Power Plan go forward, but it wouldn’t create the kind of national precedent in support of greenhouse gas regulations that we need.

Of course, Supreme Court decisions don’t have to end in a tie. That’s where the Senate comes in. 

Riding the bench

Earlier this year, President Barack Obama nominated Merrick Garland to fill the open spot on the Supreme Court. (Garland, in an interesting twist of fate, is chief justice on the D.C. Circuit Court — the same court that will hear the Clean Power Plan case next.)

Garland is widely viewed as a strong candidate, first coming to prominence when he helped investigate and prosecute the 1995 Oklahoma City bombings. While he has often deferred to federal agencies in his rulings, he also has found reason to go against them when it comes to environmental rules, although many observers believe he would side with the EPA on the Clean Power Plan.

However, his nomination has stalled in the Senate, with nearly all Republicans reportedly saying they are opposed to holding hearings or casting a vote with a presidential election only months away.

The prospect of a tie vote in the Supreme Court on issues of great national importance isn’t good for the economy.

The ASBC believes this is the wrong approach to take. The prospect of a tie vote in the Supreme Court on issues of great national importance isn’t good for the economy. Again, even if the Clean Power Plan is ultimately upheld, the fact that it wouldn’t create a binding precedent means more challenges to the rule could come once the Supreme Court vacancy is filled. Leaving the rule’s future up in the air isn’t a wise decision; the court’s role is to settle important decisions for good.

There has been some talk in Congress of confirming Garland following the election, in what’s known as the "lame duck" period before the new president takes over. Even that, however, is too long a wait, regardless whether you support or oppose the Clean Power Plan. This is something that needs to be decided as soon as possible, and it’s important for business people to let their senators know that they support hearings and a vote for Garland.

Longer term, business people can support campaign finance reform as a way to reduce the political power of special interests such as that of the fossil fuel industry.

As an early, landmark legal case, Marbury v. Madison, explained, "It is emphatically the province and duty of the judicial department to say what the law is." Without a full complement of nine justices, the Supreme Court cannot do that. It is bad news for the country when we have important issues such as climate change that need to be resolved now.