A new bench could rule on big climate cases

Source: Niina Heikkinen, E&E News reporter • Posted: Monday, July 2, 2018

Lawyers are already gaming out how a reshaped Supreme Court might handle future climate change cases.

A replacement for Justice Anthony Kennedy picked by President Trump is almost certain to steer the court to the right on a host of issues, and climate is no exception. The shift could lead critics of EPA climate rules to take aim at the 2007 Supreme Court ruling in the case Massachusetts v. EPA, a landmark decision finding that the agency has the authority to regulate greenhouse gases under the Clean Air Act. Legal fights over the Trump administration’s climate policies could give the high court a chance to take another look at the issue.

The first climate-related test case to make it before the Supreme Court after Kennedy’s retirement could be one involving an Obama administration rule to phase out hydrofluorocarbons, or HFCs.

The Natural Resources Defense Council, Honeywell International Inc. and Chemours Co. are asking the high court to resurrect the Obama-era regulation. On Monday, the NRDC petitioned the court to review a decision to toss the rule issued by the U.S. Court of Appeals for the District of Columbia Circuit last year (Greenwire, June 26).

David Doniger, director of the climate and clean energy program at NRDC, said the arguments in the case are not just about the need to control HFCs, which are potent greenhouse gases. There is also a concern for the financial interest of chemical manufacturers like Honeywell and Chemours that had invested heavily in alternatives to HFCs in anticipation that they would be phased out, along with makers of air conditioning and refrigeration that had also gotten on board.

Given the broader economic and environmental questions involved in the case, beyond limiting greenhouse gases, Doniger said they hoped the issues would be of interest to Chief Justice John Roberts and the rest of the court.

Myron Ebell, director of the Center for Energy and Environment at the Competitive Enterprise Institute, sees the HFC case as the quickest way the high court could revisit the Massachusetts v. EPA decision, because it could involve an examination of the dangers of greenhouse gases. Ebell said that a direct attack against the 2007 ruling is unlikely.

If the justices do agree to hear that case, it might come up too early to be a test of the new justice’s views on climate regulations. The court will pick and be briefed on its next batch of cases in the fall and will hold hearings in the winter.

Republicans want to confirm a new justice before the midterm elections this fall, but Senate Democrats won’t allow a Trump nominee to be confirmed expeditiously.

Other climate cases that could come before the Supreme Court are challenges to the Trump EPA’s next moves on repealing and replacing Obama’s Clean Power Plan, along with EPA’s methane regulations for oil and gas.

Much of what happens with these challenges still depends on what actions EPA Administrator Scott Pruitt decides to take in the coming months. EPA has yet to state definitively whether it will eliminate the Clean Power Plan outright or replace it with a less stringent version. Any moves by Pruitt to relax climate rules are certain to be challenged by the left, but it’s uncertain whether those cases will be heard by the Supreme Court, which hears a tiny fraction of the appeals before it.

But the Supreme Court has already shown an interest in the Clean Power Plan, agreeing to freeze that rule while President Obama was still in the White House.

“I would say that my No. 1 concern is going to be the lawsuit involving the Clean Power Plan and what I think will be Trump’s replacement for the Clean Power Plan. That case would almost certainly work its way up to the Supreme Court,” said Jessica Wentz, staff attorney and associate research scholar at Columbia Law School’s Sabin Center for Climate Change Law.

“With Kennedy on the court, it wasn’t entirely clear what would happen with this,” Wentz said. “Recently, he’s been siding with conservative justices. For environmental cases, he might go either way. Whomever Trump nominates, we can assume he will share Trump’s deregulatory agenda.”

Ebell doesn’t expect litigation over a Clean Power Plan replacement to impact the Massachusetts v. EPA decision. He sees another path to torpedoing that ruling.

Critics of EPA climate rules have already petitioned the agency to revisit its endangerment finding that triggers regulations.

“If they decided not to replace the Clean Power Plan and they decided to consider our petition through an advanced notice of proposed rulemaking to look at the endangerment finding again, then that potentially over a period of time could be a way to get back to court with Massachusetts v. EPA,” Ebell said.

Some environmental lawyers are skeptical that an effort to undo the landmark Supreme Court case would be successful.

Doniger pointed out that since 2007, the Supreme Court has upheld EPA’s authority to regulate greenhouse gases in two big climate cases: an 8-0 decision in a case titled American Electric Power Co. v. Connecticut in 2011 and Utility Air Regulatory Group v. EPA in 2014. The justices’ differing opinions in the UARG case focused on permitting and not on controlling greenhouse gas emissions, Doniger said.

He added that in that case, even the late conservative Justice Antonin Scalia, who delivered the court’s decision in the UARG case, had not questioned the ruling in Massachusetts v. EPA. “EPA is getting almost everything it wanted in this case,” Scalia said from the bench when he announced the ruling (Greenwire, June 24, 2014).

The scientific support for human-driven climate change has also strengthened over the past decade, and more of the public is aware of the imminent risks rising global temperatures pose.

“In 2007, it might have appeared that climate change was in the future and somewhat uncertain,” Doniger said. “Apart from the right-wing nuts who are still pursuing climate denial, most everyone realizes that the impacts are happening now and they are already evident and the problems are much more urgent and real than in 2007.”

He added, “The die-hard deniers will never go away, but I find it hard to believe even the conservatives on the Supreme Court would get sucked into that view.”

Others aren’t as confident that the Massachusetts v. EPA ruling will survive.

“Some of the other conservative justices aren’t all that deferential to past conservative precedent,” said Wentz of Columbia Law School. “They are still intelligent enough I don’t think they want to be the justice to say greenhouse gases aren’t pollutants under the Clean Air Act.”

Reporter Scott Waldman contributed.