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The draft opinion, published by Politico on Monday, indicates that at least five conservative justices are willing to cast aside long-standing precedent to achieve major objectives on the political right, these environmental lawyers said.
That does not bode well, they said, for the Supreme Court's forthcoming decision in West Virginia v. EPA, a challenge to the Environmental Protection Agency's authority to regulate carbon emissions from the power sector, the country's second-largest source of planet-warming pollution.
“The court's dismissive attitude toward precedent … is really just another signal of a conservative majority that's eager to roll up its sleeves and fix all the issues in the law that conservatives have complained about for years,” Dan Farber, a professor of law at the University of California at Berkeley, told The Climate 202.
“And climate regulation is seen by conservatives as a dramatic example of regulatory overreach because Congress hasn't passed any specific laws that tell EPA to go regulate [carbon emissions],” he added.
Nathan Richardson, a professor at the University of South Carolina School of Law and a university fellow at Resources for the Future, agreed with that assessment.
“This suggests the conservative justices realize they have power now and are willing to use it to achieve big goals, regardless of whether it makes the court look politicized,” Richardson told The Climate 202. “And reining in the power of administrative agencies is clearly a big part of the conservative agenda.”
Politico reported that the draft opinion was circulated by Justice Samuel A. Alito Jr. and that four of the other Republican-appointed justices — Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — had already voted to overturn Roe. Chief Justice John G. Roberts Jr. said in a statement Tuesday that the leaked draft opinion is authentic but not final, and that he is opening an investigation into how it became public.
West Virginia v. EPA was brought by coal mining companies and Republican attorneys general who say the Clean Air Act does not permit the EPA to make sweeping changes to the way the nation's power sector produces electricity. The case comes before a Supreme Court that's even more conservative than the one that stopped the Clean Power Plan, the Obama administration's strategy to drastically curb power plants' carbon emissions, in 2016.
No more ‘strange bedfellows’?
The leak represents an extraordinary breach of Supreme Court operations and undermines the court as an institution, said Sam Sankar, senior vice president for programs at Earthjustice, a law organization that works on environmental advocacy.
“It's distressing. It's not something I ever want to see,” said Sankar, a former clerk for Sandra Day O'Connor, who served as a Supreme Court justice from 1981 to 2006.
In controversial cases, justices often circulate multiple draft opinions and try to persuade their colleagues to alter their language or conclusions. Justices can change their votes throughout this process.
The leak threatens to erode trust among justices and staff, however, making it less likely that liberal and conservative justices will reach consensus on majority opinions that transcend ideological lines, said Max Rodriguez, an attorney at Pollock Cohen who helped 192 congressional Democrats file an amicus brief in West Virginia on behalf of the Biden administration.
“On the off chance that there was a possibility of getting to a victory for the respondents in West Virginia v. EPA, I think it would have required a strange bedfellows kind of majority, such as three liberals plus at least two conservatives,” Rodriguez said. “I do wonder whether in the short term, the leak is going to strain the opportunity for strange bedfellows alignments.”
Is Massachusetts v. EPA safe?
While the draft opinion suggests that the conservative justices could revisit long-standing precedent, none of the environmental lawyers interviewed for this report expected the Supreme Court to imminently overturn Massachusetts v. EPA, the landmark 2007 case that established the EPA's authority to regulate greenhouse gases under the Clean Air Act.
Indeed, the Republican-led states and coal mining companies in West Virginia did not ask the Supreme Court to reverse the 2007 case in their briefs or during oral arguments.
“Massachusetts is not likely to be under threat in West Virginia,” Richardson said. “But this leak does make me more pessimistic about Massachusetts long term.”
The justices heard oral arguments in West Virginia in February. A decision is expected before the end of the court's term in late June or possibly early July.
On the Hill
Exclusive: Conservative clean energy group endorses 9 new candidates ahead of midterms
Citizens for Responsible Energy Solutions, a conservative clean energy group, is making a second round of congressional endorsements before the midterm elections, throwing its support behind nine Republican lawmakers who have been vocal about climate and energy issues, according to details shared exclusively with The Climate 202.
According to the group, all of the endorsed candidates have demonstrated support for boosting the nation's renewable energy industry, reducing carbon emissions, and enacting free-market policies that spur greater research, development and deployment of clean energy technologies.
“Now more than ever, it is evident that our country needs leaders committed to boosting domestic energy independence and addressing climate change,” CRES President Heather Reams said in a statement to The Climate 202. “Each of the candidates endorsed by CRES have demonstrated just that — spearheading legislative efforts that protect both our wallets and our environment.”
Among the endorsed candidates is Rep. Garret Graves (La.), the top Republican on the House Select Committee on the Climate Crisis, who has consistently called for increased U.S. natural gas production and exports amid the energy crisis spurred by the war in Ukraine.
The other endorsed candidates include:
- Rep. Debbie Lesko (Ariz.)
- Rep. Frank D. Lucas (Okla.)
- Rep. Nicole Malliotakis (N.Y.)
- Rep. Peter Meijer (Mich.)
- Rep. Dan Newhouse (Wash.)
- Rep. Cathy McMorris Rodgers (Wash.)
- Rep. Pete Stauber (Minn.)
- Rep. Elise Stefanik (N.Y.)
CRES announced its first round of endorsements for the 2022 cycle last week, backing five senators and 12 members who have primaries in the next few weeks. The second round of endorsements focused on lawmakers who are uncontested or have primaries later this summer.
Senate Energy Committee pushes forward with historic outdoor recreation bill
The Senate Energy and Natural Resources Committee on Tuesday unanimously advanced the America’s Outdoor Recreation Act of 2022, a package of bills aimed at strengthening the nation's outdoor recreation economy.
The bipartisan legislation, spearheaded by committee chair Joe Manchin III (D-W.Va.) and ranking member Joe Barrasso (R-Wyo.), is the first recreation package of its kind since 1963.
The package promises to “improve our recreation infrastructure, make it easier for businesses to thrive in rural areas across West Virginia and the country, and ensure our treasured public lands are accessible for generations to come,” Manchin said in a statement.
The committee on Tuesday also split along party lines over whether to advance President Biden's nomination of Maria Robinson to serve as the Energy Department's assistant secretary in the Office of Electricity, with all 10 Democrats voting in favor and all 10 Republicans voting no.
Senate Majority Leader Charles E. Schumer (D-N.Y.) could still move to discharge Robinson's nomination from the Energy panel and bring it up for a full Senate confirmation vote.
E.U. proposes ban on Russian oil imports by end of year
European officials on Wednesday unveiled a plan to phase out Russian oil imports, the bloc's strongest move yet to reduce its dependence on Russian energy amid the war in Ukraine, Emily Rauhala and Quentin Ariès report for The Post.
The phaseout, which must be approved by all member states, is more gradual than the immediate embargo that some nations had pushed. It would ban oil imports after six months and refined petroleum products by the end of the year.
Still, it represents a seismic shift for the European Union, which in March informed the United States that it could not join a Russian energy embargo.
Bureau of Reclamation curbs water releases from drought-stricken Lake Powell
The Interior Department’s Bureau of Reclamation on Tuesday unveiled unprecedented steps to protect Lake Powell, which is facing extremely low water levels amid a historic drought in the West, CNN’s René Marsh and Rachel Ramirez report.
The emergency actions are meant to buy the federal government and surrounding communities 12 months as they consider longer-term options to combat the possibility that the reservoir — the country’s second largest — will dry up as climate change exacerbates drought conditions.
The agency said the measures will boost Lake Powell by nearly 1 million acre-feet of water. On Tuesday, Lake Powell’s water surface elevation neared 3,522 feet, its lowest level since originally being filled in the 1960s.
The lowest point at which the Glen Canyon Dam can operate is 3,490 feet, according to the bureau. The dam produces hydropower for as many as 5.8 million homes and businesses across seven states.
In the atmosphere
- Seven safety tips to prepare for hurricane season — Kerrin Jeromin for The Washington Post
- Where lawns are outlawed (and dug up, and carted away) — Henry Fountain for the New York Times
- Climate change turned up India’s heat. But by how much? — Eric Roston for Bloomberg News
- BP expands buybacks after ‘exceptional’ trading performance — Laura Hurst for Bloomberg News
Thanks for reading!