An extra Trump Supreme Court justice may help cement his environmental rollbacks

Source: By Dino Grandoni, Washiongton Post • Posted: Monday, September 21, 2020

A more conservative Supreme Court gives the Trump administration a greater chance of making its rollbacks of environmental rules last long after the president leaves office.

Court challenges from blue states and green groups involving many issues — everything from whether Utah canyon land can be drilled, to whether oil companies can be held responsible for killing birds in spills, to  if the federal government can take aggressive action to curb climate change — could be impacted.

And even if Trump is defeated in November, the loss of the late liberal icon on the court may also give Joe Biden trouble in implementing a plan to combat climate change.

“A further tilt of the Court in the direction it is already going ― skeptical of regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind, certainly won’t help the cause of environmental protection,” said Jody Freeman, director of Harvard Law School’s environmental and energy law program.

The death of the 87-year-old justice Friday evening has already kickstarted a tense political fight in Washington as Trump vows to fill the vacancy with a conservative judge “without delay.” Senate Democrats are accusing Republicans of hypocrisy for seeking to fill a Supreme Court opening in an election year after refusing to do so after Antonin Scalia’s death in 2016.

Among the biggest cases the court could hear is a legal brawl over the Trump administration’s repeal of the Clean Power Plan.

That Barack Obama-era regulation sought to rein in greenhouse gas emissions from coal-fired power plants. But Scott Pruitt, at the time Oklahoma’s attorney general, challenged the rule, and the Supreme Court stayed its implementation.

In 2017, after Trump’s election, the Environmental Protection Agency — headed by Pruitt — began work on replacing it with a much less stringent standard. After it was finalized, dozens of Democrat-led states and green groups sued to throw out the rule.

The case could very well end up in the Supreme Court. The U.S. Court of Appeals for the District of Columbia Circuit is set to hear arguments next month.

If the high court rules in favor of the Trump administration, it could hamstring a future president from using existing law to regulate climate-warming pollution from the power sector.

Michael Gerrard, an environmental law professor at Columbia Law School, said the case could be a vehicle for conservative justices to undermine a landmark decision called Massachusetts v. the Environmental Protection Agency.

That 2007 ruling compels the agency to regulate carbon dioxide and other pollution contributing to rising global temperatures, and gives states and environmental advocacy groups standing in court to sue over climate change.

Today, Justice Stephen G. Breyer is the only remaining justice on the court who voted in the majority in that case.

“If Trump is able to name Ginsburg’s replacement, that decision becomes a big target for those who want to shut down EPA regulation of greenhouse gases,” Gerrard said.

The next Supreme Court justice very well may be a deciding vote in several other high-profile environmental cases.

Another major one involves the scope of the EPA’s authority to protect rivers, streams and other wetlands, which the Trump administration has sought to limit.

The Supreme Court is likely to take up the case because the lower courts have already reached different conclusions in legal challenges, according to Thomas McGarity, an environmental law professor at the University of Texas at Austin.

“The lower courts have played a powerful role in restraining the Trump administration,” McGarity said. “Nearly all of the Trump administration’s rollbacks of Obama administration environmental initiatives are still pending in the lower courts and will therefore be ripe for review in the Supreme Court.”

That’s not all. Other rules primed for Supreme Court review include the EPA’s relaxation of regulations protecting people from breaches of coal ash impoundments, the Interior Department’s reduction of two massive national monuments in Utah and the department’s repeal of a rule meant to prevent offshore well blowouts similar to the one leading to the Deepwater Horizon spill.

“Obviously, not all of these cases will make their way to the Supreme Court,” McGarity said, “but several will.”

Even if Biden wins in November, Trump’s appointment will still leave the Court with a strong conservative majority.

The Democratic president nominee has made combatting climate change a major plank of his campaign, and has vowed to reverse much of the Trump administration’s rollbacks should he win. But Ginsburg’s absence on the high court will make that job more difficult.

“If the people elect a new president and put both houses of Congress in the control of the Democrats, the Supreme Court with six conservatives could provide a hurdle that the agencies under new leadership will have a hard time overcoming,” McGarity said.

A Biden administration, along with Democrats in Congress, will need to craft new environmental laws and regulations extra carefully so as not to run afoul of a more conservative Supreme Court, Freeman said.

“All of this underscores the need to use executive power smartly and strategically in a legally defensible way in tandem with passing new legislation on climate and energy policy,” she said.

The loss of Ginsburg will also limit Chief Justice John G. Roberts Jr.’s influence as the court’s swing member.

By occasionally siding with the liberals, the George W. Bush-chosen judge has acted as a leavening influence in the court.

In April, for example, the court ruled that a wastewater treatment plant in Hawaii could not avoid getting a Clean Water Act permit by first pumping pollution into groundwater. With its decision in County of Maui v. Hawaii Wildlife Fund, it rejected the Trump administration’s reading of the law as creating an “obvious loophole.”

Roberts joined Ginsburg and the court’s three other liberals in reaching that verdict, with Justice Brett M. Kavanaugh writing a concurring opinion.

“If a sixth conservative Justice is confirmed before Trump leaves office, Chief Justice Roberts no longer will be the swing vote and the other five conservatives would be free to embrace more extreme interpretations of the environmental laws,” said Robert Percival, professor and director of the environmental law program at the University of Maryland.

With Ginsburg’s death, the Supreme Court loses a reliable vote in favor of stronger environmental protections.

Ginsburg had a history of seeking to give the government wider sweep to rein in pollution during her 27 years on the bench.

One of best-known majority opinions was a 2000 decision that makes it easier for people to sue companies for pollution.

“She was clearly the justice who was most sympathetic to environmental concerns of any of the justices on the court,” Percival said.

That said, expect abortion rights and Roe vs. Wade to dominate the debate over Trump’s eventual nominee.

“Environmental issues may not be a big line of questioning in the process,” said Carl Tobias, a University of Richmond law professor who follows judicial nominations. “However, certain issues like climate change and federal government use of and reliance on scientific data could be.”