U.S. Supreme Court Justice Anthony Kennedy was a conservative justice, yet he occasionally voted with the four more mainstream justices on environmental issues. Presumably, his successor (if confirmed by this Republican-majority senate) will be more conservative. If that’s the case, here are three issue areas where a new Supreme Court could directly affect climate and energy progress:
- Federal Clean Power Plan: Kennedy was the crucial fifth vote on Massachusetts v. EPA, which held that the federal Clean Air Act required U.S. EPA to regulate greenhouse gas emissions as a pollutant. As a result of that ruling, the Obama Administration eventually proposed the Clean Power Plan, which would have compelled states to reduce carbon emissions from their power sectors. The regulation is tied up in litigation and likely to come before the U.S. Supreme Court. A new court could potentially overrule Massachusetts v EPA entirely or narrow EPA’s authority so much that it’s essentially meaningless. Notably, I believe the latter possibility would have been likely even with Kennedy on the bench.
- California’s waiver authority to regulate emissions beyond federal standards: the federal Clean Air Act allows California to set more aggressive standards than federal ones, provided EPA approves a waiver for the state to do so. Waivers were historically issued almost automatically, until George W. Bush came along and delayed approving one for California’s tailpipe emission standards. Now the Trump Administration is mulling going a step further: revoking previously granted waivers, such as the one to allow California to set tailpipe standards (which were harmonized with strong federal fuel economy standards under Obama, but since reneged on by Trump’s team). The U.S. Supreme Court will likely have to rule on EPA’s authority to revoke existing waivers, if Trump’s EPA chooses that course. The implications would be huge for California’s efforts to boost zero-emission vehicles.
- Regional grid management to promote clean technologies: the federal government has jurisdiction over wholesale power markets that cross state lines. So grid operators that seek to promote clean technologies, like renewable energy, energy storage, or demand response, often need federal agency approval. And the U.S. Supreme Court will occasionally hear cases on appeal. While the scope of these decisions is often narrow, they can affect regional efforts to reduce emissions from the power sector. A new court could potentially seek to undermine these efforts (although as E&E News describes [paywalled], these cases so far have been wonky and not subject to close partisan rulings by the justices).
Other cases could also affect climate policies, such as those involving federal agency regulation of methane emissions from oil-and-gas operations, as well as regulation involving other short-lived climate pollutants (described in E&E news [also paywalled]). But these three loom large for me.
Overall, Kennedy’s retirement is not good news for those who care about environmental protection, as I told the San Francisco Chronicle. But on the flip side, most of the action on climate right now is at the state and local level. Any federal progress will have to come from Congress, not from the courts. And that dynamic is now even more true now with Kennedy’s departure.
