Kennedy's retirement could bring a seismic shift to environmental law

Justice Anthony M. Kennedy's announcement that he will soon step down from the Supreme Court sent shock waves through Washington on Wednesday.

Should President Trump and Senate Republicans succeed in replacing the swing-vote jurist with a stalwart conservative, the ideological shift could bring seismic changes to federal environmental policy. As with so many other issues, Kennedy served as a swing vote in key cases on water pollution and climate change during his three-decade tenure. His imminent departure immediately put some environmental groups on edge.

“If Trump succeeds in veering the Court in an even more extremist direction,” said Marcie Keever, legal director at Friends of the Earth, “it could open the door to runaway climate change.”

The most significant of those cases was the court's decision in Massachusetts v. the Environmental Protection Agency. The blue state led a lawsuit against the George W. Bush administration for failing to act on climate change. In 2007, the court ordered the agency to determine whether such climate-warming emissions endangered public health or the environment.

So at the end of 2009 the EPA, then under new management with Barack Obama as president, issued a scientific determination called an “endangerment finding." The agency found that, indeed, climate change poses a threat, laying the groundwork for the Obama-era Clean Power Plan that regulated pollution from coal-fired power plants.

But Massachusetts had won its case in a 5-to-4 vote, with Kennedy in with the majority. "Trump’s backers have had the goal of dismantling it ever since," said Keever. (His organization, Friends of the Earth, had joined Massachusetts as a petitioner in the case.)

https://www.washingtonpost.com/news/powerpost/paloma/the-energy-202/2018/06/28/the-energy-202-kennedy-s-retirement-could-bring-a-seismic-shift-to-environmental-law/5b33e27930fb046c468e6f60/?utm_term=.3a1404a17bba