The Energy 202: Landmark Supreme Court climate ruling more vulnerable than ever with Ginsburg’s death

Source: By Dino Grandoni, Washington Post • Posted: Wednesday, September 23, 2020

The death of Ruth Bader Ginsburg may eventually result in a reassessment — or at least, a narrower reading — of the Supreme Court’s first and most important ruling on rising global temperatures. 

The landmark 2007 decision, called Massachusetts vs. Environmental Protection Agency, gave the federal government the power to regulate greenhouse gas emissions.

Now with President Trump poised to add a sixth conservative justice, some conservatives are itching for the high court to take some of that power away.The question is whether the Supreme Court will take up future cases tackling climate change — and how far a more conservative bench will go to chip away at its past decision.

“I can’t see a Trump appointee upholding Massachusetts v. EPA,” said Steve Milloy, a former member of Trump’s transition team who serves as a board member of the Heartland Institute, a libertarian think tank dismissive of the scientific consensus on climate change.

Noting the increasingly right-leaning tilt of the high court, Milloy added: “If you force them to vote on it, we win.”

Most remember Ginsburg’s legacy on gender equality. But she was also a crucial vote in climate change cases.

Toward the beginning of the George W. Bush administration, Massachusetts led 11 other states in petitioning the EPA to do more to stop global warming. When the agency refused, the states sued to compel it to regulate carbon dioxide and other greenhouse gas emissions under the Clean Air Act.

In a 5-to-4 decision, the high court sided with the states and said greenhouse gases ought to be considered air pollutants if agency scientists determine they are a threat to human health. President Barack Obama’s EPA went on to make that so-called “endangerment finding” in 2009. 

The court also said states have standing to sue over the changing climate. 

Until last week, Ginsburg was one of only two justices still on the court who were part of the majority. The other is Stephen G. Breyer.

There are a number of ways the crucial climate ruling could be eroded.

Lisa Heinzerling, a professor of environmental and administrative law at Georgetown University, said a more conservative Supreme Court may grind down the ruling by undoing just a part of the sprawling decision.

“If you take them apart, it becomes really easy to see how parts of those could go, with a six-justice majority,” Heinzerling said.

If the high court withdrew the ability of state or environmental groups to sue over climate change, for example, there would be little to stop an administration that rejects climate science from completely ignoring the problem, she said.

The court could take other steps, such as reining in the EPA’s jurisdiction or requiring additional cost-benefit analysis from the agency to justify its climate rules, according to Jody Freeman, a scholar of administrative law and environmental law at Harvard.

The court, she said, has already “signaled it is open to doing” that.

David Doniger, senior strategic director of the Natural Resources Defense Council’s climate and clean energy program, agreed Massachusetts will be a “target” of a more conservative court. But he doubted it would throw the whole ruling away.

“It’s precedent. It’s the right reading of the law,” he said. “I don’t think you’d see an outright reversal.”

Some opponents of climate rules worry the court won’t make their concerns a priority.

“Although there might be enough Justices to overturn Mass. v EPA, it’s not clear whether a case challenging it could get to the Supreme Court,” Myron Ebell, an executive at the right-wing Competitive Enterprise Institute, wrote by email.

Ebell, a climate skeptic who oversaw Trump’s EPA transition team, instead hopes Trump wins another term and eventually retracts the agency’s endangerment finding. Doing so would effectively kneecap the EPA from issuing climate rules — without overruling Supreme Court precedent.

The Heartland Institute’s Milloy agreed the court could punt on the issue. “If they want to avoid it for whatever reason, they will.”

The Supreme Court has already hemmed in the EPA’s authority on climate change before.

After the blockbuster 2007 decision, the Obama-era EPA moved to curb their emission from a host of sources, including cars, power plants and oil wells. 

But in 2014, the court found the Obama administration had overstepped in interpreting its power under the Clean Air Act. The agency had to exempt electronics manufacturers, beverage producers and a handful of other smaller sources from greenhouse gas regulations. 

While the decision mostly validated the EPA’s authority on greenhouse gases, the Federalist Society, the influential conservative think tank, heralded the decision as a “foreshadowing” of what the court may do in the future.

Already some see another opening.

The EPA scrapped the Obama-era regulation on power plant emissions after President Trump’s election, and replaced it with a much less stringent standard. 

Environmentalists sued, and the case has made its way to the U.S. Court of Appeals for the District of Columbia Circuit. Arguments start on Oct. 8. 

Michael Gerrard, an environmental law professor at Columbia Law School, said the Supreme Court could use that case to whittle away Massachusetts should it land on its docket.

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