How a more conservative Supreme Court could impact environmental laws

As Judge Amy Coney Barrett is set to become the sixth Republican-appointed judge to the nation’s highest court, environmental law experts see her influence tipping the balance when it comes to energy and climate rules .

President Trump tapped Barrett on Saturday, and Trump — with the help of a Republican-led Senate — intends to quickly fill the post left by the late Justice Ruth Bader Ginsburg, who was appointed in 1993. by President Clinton, a Democrat (green wireSeptember 26).

Barrett, who currently sits on the 7th U.S. Circuit Court of Appeals, has a relatively thin record on climate and environmental issues. But if upheld at the High Court, Barrett, 48, would likely lock up a Tory coalition there, legal experts have said. This block could pave the way for future environmental reductions or make it more difficult to expand emissions regulations through a broad reading of legislative authority.

“I see Barrett’s addition to the court taking it even further in the direction it was already going,” said Jody Freeman, founding director of the environmental and energy law program at Harvard. Law School.

The court was “already moving in the direction of [being] much more skeptical of efforts to regulate new issues, to interpret laws that may be older, to address new risks,” she added.

That boost could be a boon to Trump’s legacy of loosening environmental standards, as a conservative high court would likely be more sensitive to his views in legal challenges to those efforts. Trump has pushed to roll back emissions regulations for vehicles, power plants and industry.

“If you look at what Trump has done on NEPA, ACE, WOTUS regulations, they’re making regulations that don’t push the boundaries, [they are] narrow interpretations of the law that I think the court would actually favor,” said Brett Hartl, director of government affairs at the Center for Biological Diversity, referring to the National Environmental Policy Act, the EPA’s rule on affordable clean energy and “US waters”. ” to reign.

Even if former Vice President Joe Biden wins the White House, Brookings Institution nonresident senior fellow Barry Rabe says, the High Court’s new makeup would create a questionable future for the Biden administration’s aggressive environmental policies. .

“I think that probably undermines the ambition of any future president to try to achieve major environmental policy reform through unilateral executive action,” Rabe said.

Coalition formation

The addition of Trump’s third nominee to the Supreme Court may not have major implications for ongoing environmental cases.

But Barrett would give the right side of the bench more flexibility to form coalitions on certain environmental issues — even if some conservative justices don’t always agree on issues of status or statutory interpretation, said Joseph Goffman, executive director. from the Environmental & Energy Law Program.

“If you think of majorities as coalitions like in any other voting body, having like-minded people on the ground more generally will increase the opportunities for forming coalitions to achieve anti-regulatory outcomes,” he said. -he declares.

A more conservative Supreme Court also has the potential to “reduce” the standing for bringing cases to court, which could make appeals more difficult for environmental plaintiffs, said Kym Hunter, senior attorney at the Southern Environmental Law Center.

SELC represents conservation groups challenging the Trump administration’s recently finalized NEPA implementing regulations in U.S. District Court for the Western District of Virginia. The case is one of those in federal court that could end up before the judges.

Under Trump, Barrett quickly rose through the judicial ranks. The president first appointed her to the 7th U.S. Circuit Court of Appeals in 2017 (Daily O&M, October 6, 2017). Sen. Dianne Feinstein (D-California) questioned her lack of experience at the time, noting that she only attended one trial before becoming a professor at Notre Dame Law School.

Barrett later appeared on a short list of potential replacements for Justice Anthony Kennedy, whose seat was later filled by Justice Brett Kavanaugh. On Saturday, Trump announced his nomination to replace Ginsburg, who died just over a week ago of pancreatic cancer.

“I have watched and I have studied, and you are very eminently qualified for this job,” Trump told Barrett when announcing his appointment. “You are going to be fantastic.”

Court watchers have little to draw from Barrett’s limited 7th Circuit record to gauge how she can rule on environmental and energy issues, but she shares a propensity for textualism similar to that of the late Justice Antonin Scalia.

Trump underscored this fact when he said Barrett would “decide matters based on the text of the Constitution as written.”

The approach contrasts with that of judges reading the law and the Constitution in today’s context — a strategy Ginsburg was more inclined to embrace.

“As [Scalia]I suspect she will have second thoughts about large, innovative regulatory programs under very old statutes,” wrote Adam White, executive director of the C. Boyden Gray Center for the Study of the Administrative State at the law school. Antonin Scalia of George Mason University. an email.

That could come into play as judges see appeals over the Trump administration’s rule on affordable clean energy, controls on methane emissions from oil and gas, and implementation of NEPA regulations, among other things. .

That said, all of these challenges might not come easy for the Trump administration, especially in the face of a court less adept at granting sweeping agency powers.

Brookings’ Rabe said Trump’s overhaul of methane regulations for the oil and gas sector could be such a surprise if the courts don’t see the administration’s interpretations of supply chains and methane. as an air contaminant as sufficiently adhering to the law.

Goffman noted that judges could also review the “squirrel analysis” in the second part of Trump’s tailpipe rule, which is targeted by critics who say the new rule is based on evidence. mathematics and flimsy legal justifications.

But the administration has been careful to isolate its rules with legal interpretations that a new three-vote majority is likely to favor, Goffman added.

“If the heart of the contest is the interpretation of the laws, then I think there is a chance that the rules [getting] a much friendlier reception if the rules go to the Supreme Court,” he said. “And the agency designed the rules so that the central issue that would be contested would be questions of statutory interpretation.”

A Biden Strategy

Experts say there is a real risk that sweeping climate and environmental regulations under Biden, the Democratic presidential nominee, will be halted by a more conservative court, especially if a new administration interprets regulatory powers broadly.

“Overall, the Republican appointees on the court made it clear that they believe regulators should stay within the legal regime,” said Bracewell LLP partner Jeff Holmstead. “They’re not keen on giving agencies a lot of leeway when it comes to crafting whole new regulatory programs out of arcane legislative language.”

A Biden administration could do well to craft environmental regulations that are based on a simpler reading of existing environmental laws and that don’t seek to compromise on tough standards, said Hartl of the Center for Biological Diversity.

This could mean, for example, developing climate regulations under Section 115 of the Clean Air Act, which deals with international emissions. Or the new administration could also use national ambient air quality standards to tackle greenhouse gas emissions.

“You don’t want to do convoluted language with a 6-3 majority court; you want simple, easier-to-understand language,” Hartl said.

If the Supreme Court ends up deferring to the Trump administration’s authority to change its policy, it could prove beneficial to a Biden administration, which could get similar deference for its choices, SELC’s Hunter said. .

But Holmstead also noted that a more conservative tribunal should not be construed as a total loss for environmentalists. “I don’t think it’s fair to say that means, you know, corporations are going to win more often or environmentalists are going to lose in court, but I think we’ll see much more constrained readings of these laws. . ,” he said.

Greater agency skepticism could also cause the court to dig deeper into an agency’s reasoning in its rulemaking, which may reveal weak justification for regulatory change.

“Sometimes you have to be careful what you wish for,” Hartl said.

Reprinted from Climatewire with permission from E&E News. E&E offers daily coverage of top energy and environmental news at www.eenews.net.