Kennedy’s retirement could bring a seismic shift to environmental law

Source: By Dino Grandoni, Washington Post • Posted: Friday, June 29, 2018

Supreme Court Associate Justice Anthony Kennedy speaks during a swearing in ceremony for Judge Neil Gorsuch as an associate justice in the Rose Garden of the White House in 2017. (Reuters/Carlos Barria)

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.

The EPA under Administrator Scott Pruitt has gone about trying to repeal both rules in order to satisfy those industry interests — both being key parts of Trump’s voting base.

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.