By Amanda Reilly, E&E News reporter Climatewire: Thursday, June 28, 2018
The fate of a landmark Supreme Court climate change decision became uncertain after Justice Anthony Kennedy announced his retirement yesterday.
Kennedy provided the crucial fifth vote in the 2007 decision, in which the court found EPA has the authority to regulate carbon dioxide emissions under the Clean Air Act. The case, Massachusetts v. EPA, set the stage for other Supreme Court decisions on greenhouse gas regulations and Obama-era efforts to address climate change.
A more conservative Supreme Court could curtail the ruling’s reach, or even eliminate it altogether. At least two of the court’s current conservative justices — Justices Samuel Alito and Clarence Thomas — have called for it to be overturned.
Some legal experts fear that a right-leaning court wouldn’t uphold any climate rules without Kennedy on the bench.
“Whomever Donald Trump appoints to succeed Kennedy, you would never get a decision like Massachusetts v. EPA,” said David Bookbinder, chief counsel at the libertarian Niskanen Center, which has pushed for a carbon tax.
“With Kennedy, there was always a chance of a good decision,” he said. “But with whomever comes next, there will be five votes against any climate measure whatsoever.”
In Massachusetts v. EPA, several states and cities sued the George W. Bush administration to force EPA to issue greenhouse gas standards for tailpipe emissions.
Former Justice John Paul Stevens wrote the opinion for the court, rejecting EPA’s argument that the Clean Air Act was not meant to cover carbon dioxide emissions. Stevens wrote that the Clean Air Act’s “sweeping” and “capacious” definition of air pollutants covered greenhouse gases.
Kennedy joined the court’s liberal wing, while conservative justices dissented.
“He joined the majority in the crucially important Massachusetts v. EPA opinion that said EPA had to follow the law and look at science in deciding whether to regulate greenhouse gas emissions from cars,” said William Buzbee, a professor at Georgetown Law.
John Cruden, who led the Justice Department’s Environment and Natural Resources Division during the Obama administration, said the case “shows how important he was.”
“Most of us think that there’s whole parts of the Stevens decision in Massachusetts v. EPA which were done solely for the purpose of making sure that Kennedy stayed on the majority,” Cruden said.
That includes the opinion’s finding that the states had legal standing to challenge EPA’s denial of their rulemaking petition because they occupied a “quasi-sovereign” role with interests in their citizens and the environment within their borders.
“During oral argument, he [Kennedy] let the standing issues become extraordinarily important,” Cruden said. “And of course that was a key issue in Massachusetts v. EPA.”
Kennedy also joined crucial opinions protecting citizen suit standing, Buzbee noted.
Kennedy “occasionally would use rhetoric that was aligned with the anti-regulatory wing of the court,” Buzbee said, “but more often he looked for accountability, a fair process, and resisted jettisoning of Court precedent.”
After the 2007 climate decision, the Supreme Court went on to rule unanimously in 2011 that the Clean Air Act pre-empted federal common law claims. With Massachusetts v. EPA, that decision placed the regulation of greenhouse gases squarely in EPA’s court.
Bookbinder, who was formerly chief climate counsel at the Sierra Club, said he worries that Kennedy will be replaced by somebody who “presumably doesn’t believe in climate change, or in fact science at all.”