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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.

Go deeper:

Go deeper

Biden will reverse Trump's attempt to lift COVID-related travel restrictions

Photo: Tasos Katopodis via Getty

The incoming Biden administration will reverse President Trump's last-minute order to lift COVID-19 related travel restrictions, Jen Psaki, the incoming White House press secretary, tweeted.

Why it matters: President Trump ordered entry bans lifted for travelers from the U.K., Ireland, Brazil and much of Europe to go into effect Jan. 26, but the Biden administration will "strengthen public health measures around international travel in order to further mitigate the spread of COVID-19," Jen Psaki said. Biden will be inaugurated on Wednesday, Jan. 20 and Trump will no longer be president by the time the order is set to go into effect.

Dominion sends cease and desist letter to My Pillow CEO Mike Lindell

Photo: Stephen Maturen/Getty Images

Dominion Voting Systems on Monday sent a cease and desist letter to My Pillow CEO Mike Lindell over his spread of misinformation related to the 2020 election.

Why it matters: Trump and several of his allies have pushed false conspiracy theories about the company, leading Dominion to take legal action. It's suing pro-Trump lawyer Sidney Powell for defamation and $1.3 billion in damages, and a Dominion employee has sued Trump himself, OANN and Newsmax.

Off the Rails

Episode 5: The secret CIA plan

Photo illustration: Aïda Amer, Sarah Grillo/Axios. Photo: Zach Gibson/Getty Images

Beginning on election night 2020 and continuing through his final days in office, Donald Trump unraveled and dragged America with him, to the point that his followers sacked the U.S. Capitol with two weeks left in his term. This Axios series takes you inside the collapse of a president.

Episode 5: Trump vs. Gina — The president becomes increasingly rash and devises a plan to tamper with the nation's intelligence command.

In his final weeks in office, after losing the election to Joe Biden, President Donald Trump embarked on a vengeful exit strategy that included a hasty and ill-thought-out plan to jam up CIA Director Gina Haspel by firing her top deputy and replacing him with a protege of Republican Congressman Devin Nunes.

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