Justice Anthony M. Kennedy's announcement that he will soon step down from the Supreme Court sent shock waves through Washington on Wednesday.
Should President Trump and Senate Republicans succeed in replacing the swing-vote jurist with a stalwart conservative, the ideological shift could bring seismic changes to federal environmental policy. 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. His imminent departure immediately put some environmental groups on edge.
“If Trump succeeds in veering the Court in an even more extremist direction,” said Marcie Keever, legal director at Friends of the Earth, “it could open the door to runaway climate change.”
The most significant of those cases was the court's decision in Massachusetts v. the Environmental Protection Agency. The blue state led a lawsuit against the George W. Bush administration for failing to act on climate change. In 2007, the court ordered the agency to determine whether such climate-warming emissions endangered public health or the environment.
So at the end of 2009 the EPA, then under new management with Barack Obama as president, issued a scientific determination called an “endangerment finding." The agency found that, indeed, climate change poses a threat, laying the groundwork for the Obama-era Clean Power Plan that regulated pollution from coal-fired power plants.
But Massachusetts had won its case in a 5-to-4 vote, with Kennedy in with the majority. "Trump’s backers have had the goal of dismantling it ever since," said Keever. (His organization, Friends of the Earth, had joined Massachusetts as a petitioner in the case.)
“This is really cataclysmic because Kennedy was the decisive vote,” said Robert Percival, a law professor and director of the environmental law program at the University of Maryland.
The high court has a tradition, known by its Latin name stare decisis, of standing by its previous decisions. But the court has recently shown more of a willingness to break precedent. Just this week the court ruled it unconstitutional for public unions to force nonmembers to pay collective-bargaining fees. In her dissent, Justice Elena Kagan argued that decision undid a 1977 ruling.
Without the 2007 ruling, the EPA would have no statutory power to tell companies to stop putting greenhouse gases into the atmosphere.
Jody Freeman, an environmental law professor at Harvard, was less certain conservatives would target the landmark climate-change case. But she said a court with a second justice selected by Trump would likely rule less favorably toward environmentalists on environmental issues going forward.
“I am not sure whether they’d overturn. But I think at a minimum we can expect the Court without Justice Kennedy to look even more skeptically at EPA regulatory efforts,” Freeman said in an email. “Remember that Justice Kennedy himself was often skeptical of environmental regulation."
Indeed, in 2014, the conservative wing of the court, including Kennedy, chipped away ever so slightly at the Massachusetts v. EPA decision, ruling that the EPA can indeed still regulate greenhouse gases, but now with more limits. At the time, the Obama administration praised the decision.
But two of those conservative justices, Clarence Thomas and Samuel A. Alito Jr., have both called for Massachusetts v. EPA to be overruled, according to Percival. Neil M. Gorsuch, the court's newest member, was not on the bench at the time, but so far the Trump-picked justice has proven to be one of the court's most right-leaning members.
Finally there is Chief Justice John G. Roberts Jr. That judge "appeared to accept the Massachusetts decision," said Michael Gerrard, an environmental law professor at Columbia, "so he might provide a fifth vote to uphold it if necessary."
But Percival notes the chief justice wrote the original opposing opinion in the 2007 case. "It wouldn't be a very big switch to because he dissented,” he said.
Kennedy also penned a key concurrence opinion in another case — this one about the extent of federal water-pollution law — that underpinned how the Obama administration wrote its most significant and controversial rule on water pollution.
Shortly after the creation of the EPA in 1970, Congress passed the Clean Water Act to task the young agency with policing pollution into lakes, rivers and streams — or as it is written in the statute, the nation’s “navigable waters.”
The problem is that the law never defines precisely which waterways are included in the federal government’s jurisdiction — leaving the question about the scope of the law to bureaucrats and, ultimately, the courts.
In a 2006 case with the potential to finally settle on an answer, Kennedy refused to join either the court’s liberals, who wanted to keep intact broad federal authority intact, or his other conservatives, who wanted to scale it back.
So instead in an unusual 4-1-4 split, Kennedy wrote a long opinion outlining a new legal test. Kennedy said a body of water must have a “significant nexus” to navigable waters in order to fall under federal jurisdiction.
So Obama’s regulators at the EPA and U.S. Army Corps of Engineers went about crafting a new wetlands regulation — called the Waters of the United States rule — designed to satisfy Kennedy’s interpretation.
But with a new ideological makeup, "a Supreme Court decision applying a narrower definition could constrain the ability of a future administration to broaden the definition," Gerrard said.
That rule enraged some farmers and homebuilders by making it harder to drain wetlands and small streams for development, just as the Clean Power Plan upset coal companies with its more stringent emissions standards.
But even if Pruitt successfully rescinds the Clean Power Plan, the EPA is obligated to try to curb greenhouse gas emissions because of the agency’s old endangerment finding. Getting rid of that scientific determination itself would prove difficult since the vast majority of the world's scientists studying climate change agree it is being caused by the burning of fossil fuels and other human activity.
The alternative: Voiding the underlying Supreme Court decision that compelled the EPA to come up with an endangerment finding in the first place.
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— In other Supreme Court news: The high court on Wednesday sent a case back to a court-appointed special master in the ongoing battle over whether more water should flow into Florida from Georgia. “The states have been fighting for three decades over the waters in the Apalachicola-Chattahoochee-Flint basin, which covers more than 19,600 square miles in three states. The current Supreme Court battle alone has eaten up a combined $100 million in legal fees,” The Post’s Robert Barnes reports. “The amount of extra water that reaches the Apalachicola may significantly redress the economic and ecological harm that Florida has suffered,” Justice Stephen G. Breyer wrote in the majority ruling. “Further findings, however, are needed.”
— Pruitt watch: The EPA chief may have been involved with an effort to debate the mainstream consensus on climate science separate from his proposed “red team, blue team” exercise. According to newly released emails reported by E&E News, a Tulsa-based oil executive suggested the EPA conduct an academic study to assess the accuracy of climate models. The project was eventually put on pause "because of the media attention of the climate science debate that Pruitt was planning."
— "I didn’t want to be the administrator:" The EPA's No. 2 official, Andrew Wheeler, told The Hill he is not looking to take the lead at the agency should Pruitt need to be replaced. “I’m the deputy administrator, that’s the position I signed up for, that’s the position I wanted. I didn’t want to be the administrator, still don’t want to be the administrator,” Wheeler said from the EPA’s headquarters. “I’m here to help Administrator Pruitt with his agenda and President Trump’s agenda for the agency. That’s what my job is.”
Now on to policy...
— In a move that would weaken the EPA’s ability to handle mining developments, Pruitt outlined in an agency memo a proposal to limit whether it can block the Army Corps of Engineer’s approval of waste dumping, The Post's Juliet Eilperin and Brady Dennis report. The memo targets such authority the EPA used to block construction of the gold and copper mine near Alaska’s Bristol Bay four years ago. “The new approach would bar the EPA from invoking its power under the Clean Water Act before a permit application has been filed with the U.S. Army Corps of Engineers or a state, as well as after the corps or state authorities have issued a permit,” Eilperin and Dennis write.
—Rep. Raúl M. Grijalva (Ariz.) and other Democratic lawmakers sent a letter to Pruitt on Wednesday calling on the agency to reinstate an official information request to oil and gas companies about methane following new research in the journal Science showing emissions of the potent greenhouse gas from the sector are higher than past EPA estimates. “With new science showing that emissions are likely considerably higher than previously thought," they wrote, "there is no excuse for delaying or rescinding methane emissions controls, or failing to collect data from methane emitters.”
— Zinke touts “clean coal”: Trump has frequently pushed his hope for more “clean coal” in the United States, and this week Interior Secretary Ryan Zinke reiterated that call. Zinke called nuclear and coal energy “the most reliable fuels,” during an interview on the radio program Voices of Montana. According to ThinkProgress, he also advocated for more energy to be produced in the United States, saying it is “better to produce energy here under [reasonable] regulation” and “better to ship American clean coal” to other countries. Zinke said it’s “better if you’re an environmentalist to burn clean coal.”
— But here's something Zinke doesn't want to talk about: The Government Accountability Office said Wednesday it would end its probe into whether Zinke broke the law when he called Sen. Lisa Murkowski (R-Alaska) over her vote against the Republican plan to repeal Obamacare.
The reason? The government chief office said it was unable to issue an opinion because the department did not give it enough information. Interior's inspector general "made no factual findings in this matter, and Interior did not provide us with any information on the substance of the telephone calls," Thomas Armstrong, GAO's general counsel wrote in a letter to Democratic Reps. Grijalva and Frank Pallone Jr. (N.J.). "In light of this, we lack the requisite facts on which to base a legal opinion.”
— Gas tax on the California ballot: The California secretary of state said this week a proposition that would repeal the state’s gas tax has received enough signatures to make it into the Nov. 6. ballot, according the Los Angeles Times. Gov. Jerry Brown (D) criticized the initiative on Monday. “This flawed and dangerous measure pushed by Trump’s Washington allies jeopardizes the safety of millions of Californians by stopping local communities from fixing their crumbling roads and bridges," Brown said. "Just say no." Meanwhile, Republican candidate for governor John Cox praised the news. “This is a message to the millions of forgotten Californians ignored by the Sacramento political elite, help is on the way."
— “Above the fray”: NASA head Jim Bridenstine said he has not experienced any retaliation from conservatives following his public support of mainstream scientific consensus that humans are the main driver behind climate change. “The administration has been very supportive of my position", Bridenstine said in an interview with Axios. "Nobody's given me a hard time about it at all."
— Bottling resources: The U.S. Forest Service announced it will give Nestle a three-year permit to continue to use water from the Strawberry Creek watershed in a national forest in Southern California. But the permit also included certain conditions, such as limiting water extraction in drought conditions in order to protect natural resources, according to the Associated Press.
— A “Green New Deal”: Alexandria Ocasio-Cortez, the 28-year-old first-time candidate who came away Tuesday with a stunning primary victory over Democratic Rep. Joe Crowley (N.Y.) has outlined specific plans to address climate change, including transitioning the country to 100 percent renewable energy by 2035. Her proposals “could prove among the most influential at a time when the Democrats have failed to rally around any policy that could feasibly reduce greenhouse gas emissions dramatically enough to make a difference,” HuffPost reports, noting her renewable energy plan is “hailed by environmentalists as the last best hope of staving off the most catastrophic effects of human-caused planetary warming.”
— Interior plans to let people kill endangered red wolves: The department is proposing a plan that would end a 30-year effort to repopulate critically endangered red wolves in North Carolina. The plan announced Wednesday would allow private landowners to kill wolves that wander onto their property, The Post’s Darryl Fears reports. “U.S. Fish and Wildlife officials who presented the proposal in a news conference said the Alligator River National Wildlife Refuge, which supports about a dozen of the 35 red wolves that roam a five-county area in eastern North Carolina, would be the only place where they would be safe,” Fears writes. The refuge said it will now work to manage the small population of 10-15 wolves at the refuge to “preserve their genetic value and wild behaviors in the hopes that officials can find a location more friendly and suitable than eastern North Carolina.”
— Oil watch: Sparked by continued fears about the fate of global oil supplies, crude prices surged to a three-year high Wednesday. “West Texas Intermediate futures rose 3.2% to $72.76 a barrel on the New York Mercantile Exchange, the highest close since November 2014. Brent crude, the global benchmark, rose 1.7% to $77.62,” the Wall Street Journal reports.
— Pipeline plans: After a panel of judges asked for an update last week, Bayou Bridge Pipeline LLC said it expects its 163-mile pipeline to be completed by October barring a federal appeals court order to stop construction. The three-judge panel of the 5th U.S. Circuit Court of Appeals is weighing the impact on the environmentally vulnerable Atchafalaya Basin swamp, the Associated Press reports. In a Wednesday court filing, the pipeline company said construction was almost 76 percent complete.
- The 27th World Gas Conference continues
- The Wilson Center's China Environment Forum holds an event on "Streamlining China’s Environmental Governance" on July 12.
— It's Lightning Awareness Week: The below map shows the likeliest areas experiencing lightening strikes, per The Post's Angela Fritz: