One piece of insight to keep in mind always about the Clean Power Plan and the current Supreme Court stay is that the Supreme Court ruled in 2007 that the executive branch must act, using the authority of the Clean Air Act, to regulate excess greenhouse gas emissions.

Another key insight to keep in mind is that the 1992 Climate Convention mandates avoiding dangerous anthropogenic interference with the climate system. Under Article VI of the Constitution of the United States, this ratified treaty is “the supreme Law of the Land”, essentially part of our Constitutional order.

Taking these two key insights into account, we must also recognize that the Supreme Court has already upheld EPA authority to regulate power plant emissions under the Clean Air Act. The stay rests on questionable legal grounds (which raises alarm), but we must keep things in perspective here:

The question the Court could ultimately decide is not truly one of “legality” but of design. The EPA regs may need to be designed differently in a worst-case scenario. The design may be upheld, or a new design driven by a new ruling may end up stronger.

For opponents of regulations, that should be a concern here. A temporary stay on full enforcement of the Clean Power Plan does not mean there will be no regulations. Those who want something more market-friendly or enterprise driven should urge Congress to put an economic or fiscal approach in place sooner rather than later.

In the end, Congress needs to take action, and the best available option is a revenue neutral carbon fee and dividend plan for the US. In that case, the EPA regs as such would be a backstop and a way of monitoring progress on emissions reductions over time.