Thursday, June 28, 2018

Kennedy's retirement could shift environmental law

Justice Anthony Kennedy's imminent retirement from the U.S. Supreme Court--and his all but certain replacement with a staunch conservative--predicts a substantial swing to the right for future federal court decisions and the policies and laws they inform. One of those areas is federal environmental policies. "As with so many other issues, Kennedy served as a swing vote in key cases on water pollution and climate change during his three-decade tenure," Dino Grandoni writes for The Washington Post.

The most significant of those cases was in Massachusetts v. the Environmental Protection Agency, in which Kennedy's swing vote paved the way for an EPA study affirming that coal-fired power plant emissions contributed to climate change. "Without the 2007 ruling, the EPA would have no statutory power to tell companies to stop putting greenhouse gases into the atmosphere," Grandoni writes.

Though the Supreme Court usually stands by its previous decisions, it has shown more willingness to overturn prior rulings as of late, as with its recent ruling that public unions may not force nonmembers to pay collective-bargaining fees; Justice Elena Kagan wrote in her dissent that the decision overturned a 1977 ruling. That willingness to tread on previous decisions could put the Mass. v. EPA decision on rocky ground.

But David Bookbinder, an environmental lawyer who was deeply involved in Mass. v. EPA told Ben Geman with Axios that he doubted the high court would revisit the decision: "Mass. v EPA was a pure statutory interpretation case limited to: Does the definition of 'pollutant' in the Clean Air Act include CO2? Once they decide something like that, they don't want to go back and change it, especially many years later."

But Harvard University's Jody Freeman told Geman that a "Supreme Court without Justice Kennedy will be even more likely to look skeptically at [greenhouse gas] regulation, and be more open to efforts to cabin it, if another administration ever returns to it." That matters, since EPA Administrator Scott Pruitt wants to replace Obama's Clean Power Plan with something much more limited.

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