By Chris White
If President Donald Trump replaces the deceased Justice Ruth Bader Ginsburg with a conservative stalwart, then attempts to pull back on the president’s environmental regulatory rollbacks through the courts could be thwarted, some academics and legal experts say.
Putting another conservative justice on the Supreme Court of the United States before Inauguration Day could also diminish former Vice President Joe Biden’s chances of implementing a wide-ranging climate change plan in the event he defeats Trump in November, according to Jody Freeman, director of Harvard Law School’s environmental and energy law program.
“A further tilt of the Court in the direction it is already going … certainly won’t help the cause of environmental protection,” Freedman told the Washington Post Monday. Freedman cited what he believed was the conservative-leaning court’s skeptical position on regulations as reason to believe that the “cause for environmental protection” is in jeopardy.
Ginsburg, an 87-year-old liberal icon on the SCOTUS, died Friday due to complications from metastatic pancreatic cancer. Trump initially told reportersSaturday that he plans to announce a nominee “next week” before pushing back his timeline Monday, citing memorial services for Ginsburg.
Senate Majority Leader Mitch McConnell said in a Sept. 18 statement that the Senate would vote on Trump’s nominee.
A legal decision from 2007 giving activists the opportunity to sue over climate change could be at risk under a more conservative court, according to one expert, which could endanger former President Barack Obama’s Clean Power Plan.
Obama signed the 2016 rule in an attempt to rein in greenhouse gas emissions from coal power plants. SCOTUS issued a stay on its implementation in 2016.
Conservative justices could use the Clean Power Plan as a Trojan horse to undermine the 2007 ruling in Massachusetts v. the Environmental Protection Agency, which required the agency to regulate carbon dioxide and allowed states and advocacy groups to sue over climate change issues, Michael Gerrard, an environmental law professor at Columbia Law School, told the Post.
“If Trump is able to name Ginsburg’s replacement, that decision becomes a big target for those who want to shut down EPA regulation of greenhouse gases,” Gerrard said, referring to the 2007 case.
The Environmental Protection Agency under the helm of former Oklahoma Attorney General Scott Pruitt introduced a replacement plan in 2018 called the Affordable Clean Energy (ACE) rule, which asks states to improve coal plant efficiency. The Clean Power Plan, on the other hand, mandated that such plants reduce gas emissions.
Some experts believe the Clean Power Plan would force plants to close.
Democrat-led states and environmental groups sued the government to toss out the ACE, leading to a potential showdown at the SCOTUS. The U.S. Court of Appeals for the District of Columbia Circuit is preparing to hear arguments regarding the ACE in October, according to The Washington Post. Trump’s regulatory rollbacks are pending in the lower courts, legal experts argue.
“The lower courts have played a powerful role in restraining the Trump administration,” Thomas McGarity, an environmental law professor at the University of Texas at Austin, told the Post. “Nearly all of the Trump administration’s rollbacks of Obama administration environmental initiatives are still pending in the lower courts and will therefore be ripe for review” in SCOTUS.
The president rolled back more than 90 environmental rules and regulations during his first three years in office, including many of the regulations imposed by his predecessor, The New York Times reported in December 2019. The Times relied on an analysis from Harvard Law School, Columbia Law School and other sources to keep tabs on Trump’s numbers during his time in office.
In addition, a SCOTUS containing six conservative justices would create a seemingly insurmountable barrier for a future Democratic president, McGarity added.
“If the people elect a new president and put both houses of Congress in the control of the Democrats, the Supreme Court with six conservatives could provide a hurdle that the agencies under new leadership will have a hard time overcoming,” he said.
Myron Ebell, an analyst at the Competitive Enterprise Institute, agreed that Trump’s nominee, if confirmed, will likely make the president’s moves to peel back Obama’s environmental rules a permanent fixture in government. Ebell worked on Trump’s EPA transition team and is a fervent critic of Obama’s policies.
“I think the Supreme Court before Justice Ginsburg’s death was quite likely to uphold most of the Trump administration’s environmental and energy deregulatory actions,” Ebell told the Daily Caller News Foundation. “The new court could be prepared to go much further in terms of striking down legislation and limiting deference to agencies.”
Chief Justice John Robert’s position as the court’s swing member, occasionally siding with the SCOTUS’ liberal justices, will be diminished, Robert Percival, professor and director of the environmental law program at the University of Maryland, told the Post.
“If a sixth conservative Justice is confirmed before Trump leaves office, Chief Justice Roberts no longer will be the swing vote and the other five conservatives would be free to embrace more extreme interpretations of the environmental laws,” Percival said. Roberts joined Ginsburg in April in ruling that a Hawaiian treatment plant could not exploit a loophole to avoid getting a Clean Water Act permit.
SCOTUS ruled 6 to 3 in April that the wastewater treatment plant could not avoid provisions of the rule prohibiting the release of pollutants into rivers, lakes and seas, by pumping the pollutants first into groundwater. The Trump administration determined that the Clean Water Act permitted the treatment plant to avoid a permit through the measurer, according to the Post.
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