Kennedy’s Retirement Could Clear Path for Trump’s Environmental Rollbacks
In his 30 years on the court, Justice Kennedy was frequently a crucial swing vote on major environmental questions. While he tended to be skeptical of expansive federal regulations that intruded on private property rights, he was also willing to break with the court’s conservative wing in favor of more aggressive government action to limit air and water pollution.
“One can comfortably say that he was the single most influential justice for environmental law over the past 30 years,” said Richard J. Lazarus, a law professor at Harvard. “Many of those cases were sharply divided, but the one constant was that Kennedy was in the majority in every single case but one. He was the justice that advocates always tried to persuade, because he was persuadable.”
President Trump is widely expected to nominate a more conservative justice to fill the vacancy. If that nominee is confirmed by the Senate, he or she would give the court a five-seat conservative majority that is likely to take a dimmer view of federal environmental regulation.
“What’s more likely is that we could see a new court take a more narrow reading of how the Clean Air Act can be used to regulate greenhouse gas emissions,” said Ann E. Carlson, a professor of environmental law at the University of California, Los Angeles.
For example, Scott Pruitt, the E.P.A. administrator, announced in October that he would repeal the Clean Power Plan and replace it with less extensive carbon regulations on power plants. Environmental groups and states like New York planned to challenge Mr. Pruitt’s actions in federal court, arguing that the Obama-era rules were more appropriate. That argument may now find a less receptive audience if the case reaches the Supreme Court.
By the same token, a future president who wanted to direct the E.P.A. to cut emissions more aggressively in order to tackle climate change could face tougher scrutiny from the court.
The Trump administration is also crafting a proposal to weaken Obama-era emissions standards for cars and light trucks that, in one draft version, would rescind California’s authority to set its own stricter vehicle standards. California has threatened to challenge this move in court, but the state’s chances of prevailing now look somewhat murkier.