The United States is celebrating its 241st birthday today. But it may be honoring its 114th U.S. Supreme Court justice in a few months.
Donald Trump will present on Monday someone to fill the seat of retiring Justice Anthony Kennedy, who had often been the deciding vote in environmental cases brought before the court. Given the president’s philosophical leanings, however, his nominee will probably side more with industry's positions.
Federal regulations that are legally challenged make their way to the U.S. Supreme Court by way of the U.S. Court of Appeals for the District of Columbia, which has progressive tendencies and which often rules in favor of environmental concerns. The High Court has over the last decade or so preserved those decisions.
But key cases are now up for grabs that include the 2007 ruling to allow CO2 to be considered a pollutant regulated under the Clean Air Act — one that was narrowly upheld twice by the U.S. Supreme Court. And then there’s the CO2-cutting Clean Power Plan that a bare majority of the justices sent back to the D.C. Court of Appeals for it to reconsider.
The broader questions now for both the current justices as well as Kennedy’s replacement are whether the court would uphold “established precedent” — referring to those cases that have been thoroughly hashed out by previous courts and whether they will honor the so-called Chevron Doctrine. That defers to the expertise of the regulating agencies.
“Without Kennedy on the court, the outcome is more likely to strike the balance in favor of industry rather than protection of the environment,” James Van Nostrand, energy and environmental law professor at West Virginia University told this writer. “Kennedy was pretty strong on the environment and a Trump appointee most certainly will see a weaker role for the federal government with respect to environmental protection.”
The professor agrees that regulating greenhouse gases under the Clean Air Act — Massachusetts versus the Environmental Protection Agency — is ripe for a few appeals, saying that any replacement may have a “narrower interpretation” of the law. Ditto for the Clean Power Plan, he adds, noting that a more restricted understanding of the law does not mean an outright reversal of the precedent.
Flexing Muscles
At the same time, the High Court could generally rule that environmental concerns are best decided by the individual states and not at the federal level. Such federalism is exactly what EPA Administrator Scott Pruitt has been pushing for. Critics of such thinking not only say that environmental laws need to be uniform — pollution knows no boundaries — but that the states are controlled economically by the industries domiciled there.
A lot is at stake. Consider the Chevron Doctrine and whether the reading of that would allow the EPA to regulate CO2 as a harmful emission: In 2007, the Supreme Court ruled that CO2 is a pollutant that could be regulated under the Clean Air Act. EPA made it official in 2009, saying that CO2 was a danger to public health and welfare. And in 2014, the high court upheld that so-called endangerment finding.
The endangerment finding is also the foundation behind President Obama's Clean Power Plan. That proposed regulation is now in a lower federal court and it would require 32% cuts in CO2 by 2030 from a 2005 baseline. Already, the nation is 18% of the way there because of the coal-to-natural gas transition, says the Energy Information Administration.
How would a U.S. Supreme Court nominee feel about the Chevron Doctrine? And as far as the Clean Power Plan goes, would a court ruling either tossing it or limiting it really be able to repel market powers?
Kenneth Reich, an environmental and energy lawyer in Boston, says that the Chevron Doctrine is vital for statutes that require a precise expertise—knowledge that the judges cannot possibly have. However, “Before the announcement that Justice Kennedy was stepping down, there was already speculation about the potential demise of the Chevron Doctrine, the Supreme Court rule that an agency’s interpretation of its organic statutes is entitled to deference.
"Justices Gorsuch, Thomas, Roberts and Alito are already on record as critical of this rule," he told this reporter. "And in his last opinion on the bench, Justice Kennedy also criticized the rule. Because the Chevron Doctrine is a hot button issue for the Trump Administration and the Republican majority in Congress, the next appointee to the Supreme Court is very likely to have views similar to those of Justice Kennedy on the rule, which would give the Court a majority to overturn the Chevron Doctrine in the right case.”
The answer to the latter question is that carbon emissions in this country have dropped from 6.13 billion metric tons in 2007 to 5.35 billion metric tons in the last year or so because natural gas is replacing coal-fired generation; it is abundant, inexpensive and pollutes a lot less — and the Sierra Club is reporting 250 coal plants have retired or will do so. At the same time, renewable energy prices are falling and it is gaining increasing share of the electricity market as a result.
Indelible Footprint
Industry is leading the way and it has more market powers than do U.S. Supreme Court justices: Alcoa, American Express, Apple, AT&T, Bank of America, Berkshire Hathaway Energy, Best Buy, BioGen, Cargill, CA Technologies and Coca Cola have all signed pledges to reduce their carbon footprints. Meanwhile, cities and states are helping to accelerate the trend by implementing such things as building efficiency codes and renewable portfolio standards.
The lack of federal leadership, however, could allow some heavy polluters to drag their feet or to provide cover for other businesses that don’t think investments in modern pollution controls will have quick payback.
“The courts are meant to level the playing field where a local community group can stand up to a powerful oil company that poisons its waterways, where individuals can defend their right to free speech, where women can battle to protect their access to reproductive health services, and where people can band together against corporate wrongdoing,” Earthjustice President Trip Van Noppen said. “Trump intends to fill this Supreme Court vacancy with someone who will put corporations, the wealthy, and the powerful above the rest of us.”
Justice Kennedy’s replacement will assuredly be a more conservative arbiter than he has been at least as it relates to environmental issues. But that does not mean that either the new judge or the balance of the court would be willing to upend existing laws or ignore the Chevron Doctrine. Choosing that legal path, though, would leave an indelible footprint on environmental law.
