Jun 28, 2018 - Energy & Environment

Go deeper: The climate stakes of Kennedy’s exit

The retirement of Supreme Court Justice Anthony Kennedy — and a replacement that will most likely move the court further to the right — could help weaken federal regulation of greenhouse gas (GHG) emissions.

The big question: Whether there's an opening for revisiting 2007's Massachusetts v. EPA, the 5-4 decision where Kennedy joined the majority to clearly enable regulation of CO2 emissions.

What we're hearing: Several lawyers I touched base with called it highly unlikely that the re-shaped court would crack open that decision and outright remove federal authority.

"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."
— David Bookbinder, environmental attorney who was deeply involved in the case

Yes, but: That view is not unanimous. “It’s easy to think about the loss of Kennedy leading to either the repeal of Mass. v. EPA or a serious restriction to the Clean Air Act’s ability to regulate greenhouse gases,” UCLA law professor Ann Carlson told The Atlantic.

Be smart: A court sympathetic to weakening or thwarting federal rules without reversing the bedrock power to regulate looks more likely, lawyers said. Harvard University's Jody Freeman, who worked in former President Obama's first-term White House, told Axios in an email exchange...

"I think the 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.""And a new, more conservative Justice in the mold of a Justice Gorsuch might be more deferential to the anti-regulatory impulses of the current administration."

Why it matters now: EPA Administrator Scott Pruitt is seeking to kill the Obama-era Clean Power Plan and replace it with something far more limited. He hasn't launched an effort to upend EPA's "endangerment finding," but hasn't ruled it out.

  • The endangerment finding is the Obama-era conclusion that GHGs jeopardize humans. It forms the underpinning for regulations enabled by the high court's 2007 ruling.
  • Plus, other Trump administration decisions also face courtroom fights, such as looming plans to weaken auto emissions rules.

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