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Professor Powers’ Thoughts on Kennedy’s Retirement

June 28, 2018

  • US Supreme Court Associate Justice Anthony M. Kennedy (R) and Associate Justice Ruth Bader Ginsburg (L) sit for an official photo with other members of the US Supreme Court in the Supreme Court in Washington, DC, June 1, 2017. / SAUL LOEB/AFP/Getty Images

Kennedy’s retirement is ‘terrible news’ for the environment, legal experts say

All 25 of Trump’s potential nominees are “more conservative” than Kennedy.


Supreme Court Justice Anthony Kennedy’s retirement, announced Wednesday afternoon, sent shock waves across the capital, with experts and pundits rushing to analyze the potential repercussions. For the future of environmental protection and climate action, the news means “nothing good,” according to legal experts.

During Kennedy’s time on the bench over the past three decades, he has served as the deciding vote in many cases, including some landmark environmental rulings. Most notably, Kennedy was the critical fifth vote in Massachusetts v. EPA in 2007. This case established two major precedents: that states can sue the federal government for failing to regulate greenhouse gas emissions and that greenhouse gas emissions are pollutants under the Clean Air Act and the EPA must decide whether and how to regulate them.

Kennedy’s retirement is “terrible news for environmental law and the protection of public health and the environment,” Patrick Parenteau, law professor and senior counsel in the Environmental and Natural Resources Law Clinic at Vermont Law School, told ThinkProgress.

As most experts agree, Kennedy will almost certainly be replaced with a more conservative judge, tipping the balance further to the right and leaving key environmental protection rulings vulnerable.

According to statistics compiled by, Kennedy has voted in the majority 91 percent of the time this term; last term he was 97 percent with the majority. In almost every environmental case, Kennedy has voted with the majority, which means he has a mixed record on environmental issues. For example, in a 2001 case, he sided with the conservative majority to rule that the Clean Water Act doesn’t authorize the federal government to regulate dredging and filing of isolated wetlands.

However, experts describe Kennedy as willing to consider nuance and complexity when it comes to environmental issues.

“In Justice Kennedy we did not have an environmental champion but we had a pragmatic conservative who in critical instances recognized that conservative ideology was out of step with the values of most people in the United States,” Abigail Dillen, vice president of litigation for climate and energy at Earthjustice, told ThinkProgress. “He softened the hardest line, and the hope was that his pragmatism would help the Court productively grapple with the existential issue of climate change.”

Kennedy’s nuanced approach was apparent in a 2006 case, Rapanos v. United States, regarding efforts to develop a property that was designated as a wetland. In his concurring opinion, Kennedy said waters must have a “significant nexus” to navigable rivers and seas — this includes biological or chemical connections which aren’t necessarily physically visible the way streams and rivers are.

Kennedy in this case appeared to understand the underlying science about hydrology and hydrography, said Michael Burger, executive director of Columbia University’s Sabin Center for Climate Change Law. The other judges, however, took a more limited view believing the only connections between bodies of water is “something you can see, like a river or a lake,” Burger said. “The environmental sensitivity of the next judge will matter.”

For instance, the EPA is currently in the process of developing a new rule defining waters of the United States, and determining the reach of the federal government over these bodies of water. The EPA’s new rule will likely be challenged, said Burger, so with Kennedy gone, this issue is also “potentially at stake.”

Where Kennedy perhaps had a more cross-cutting impact is on the issue of what’s known as “standing,” experts explain. This is the ability of a party bringing or defending a case — a person or organization for instance — to demonstrate that they have sufficient connection to the issue. Basically, do they have a real stake in the fight?

In the Mass. v. EPA case, Kennedy recognized standing. “I wouldn’t say he had a liberal understanding of standing, he had a nuanced understanding,” said Burger, whereas other judges have a “much more close minded view,” he said.

This matters for environmental cases because recognizing standing — or rather, having a more limited view of who can stand in a case — will impact the ability of citizens and nonprofit organizations to challenge the courts on environmental issues.

The late Justice Antonin Scalia, for example, “was a leading proponent of raising the bar for environmental litigants to prove standing,” Melissa Powers, director of the Green Energy Institute at Lewis & Clark Law School in Oregon, told ThinkProgress.


Scalia’s ruling in a 1992 case (Defenders of Wildlife v. Lujan), for example, has been used to rule against environmental plaintiffs, Powers explained. So if the next judge is more likely to rule like Scalia did, standing will become more difficult to prove.

“I think standing is going to get harder to prove,” said Powers. “But I think scientific advancements may help with showing the burden.”

As climate science continues to advance, and the impacts of climate change become ever more apparent, it will be harder for justices to reject environmentalists’ arguments for standing, Powers said. But, she warned, “plaintiffs need to be very deliberative and careful as they proceed.”


“They need to always submit declarations from scientists to support their standing arguments and prepare standing arguments expecting to make it up to the Supreme Court,” she said. “Not all environmental groups are doing this, and I am concerned that a cavalierly litigated case could be the one to make it up to the Supreme Court. That could be terrible for climate litigation.”

In the Mass v. EPA case, the plaintiffs did a “really good job” of submitting scientific declarations to support their right to stand, Powers explained. Despite the final verdict, however, Chief Justice Roberts rejected the scientists’ conclusions regarding the impacts of climate change in his dissent — dismissing things like the damaging impact of sea level rise on coastal property. He also got the science wrong, according to Powers.

“I am concerned,” she said, “that a future justice may follow his lead and misconstrue climate science to support restrictive standing decisions.”

President Trump has said that he will pick one of the 25 contenders on his listcompiled last year. All of these nominees are “more conservative than Kennedy. All have been vetted by the Federalist Society,” Parenteau said of the right wing think tank’s approval of Trump’s list.

And while Kennedy’s retirement means “nothing good,” said Burger, “it all depends on how this plays out” and who is nominated to replace him. “There’s a lot of this that’s uncertain.” 

According to Robert Percival, director of the environmental law program at the University of Maryland, many of the candidates on Trump’s list “are harsh critics of EPA.” This includes Brett Kavanaugh of the D.C. Circuit Court of Appeals, who in a 2013 case, took a position that “would have gutted the transboundary pollution provisions of the Clean Air Act.” (The case was ultimately rejected by the Supreme Court.)

Meanwhile, Amul Thapar of the Sixth Circuit Court of Appeals, “railed against EPA’s mercury regulations while introducing a panel I was on at the National Federalist Society Convention last November,” Percival told ThinkProgress.

There’s also Sen. Mike Lee (R-UT) who made headlines for blocking federal aid to Flint, Michigan in the wake of a devastating lead contamination crisis. Lee has also praised the president for reducing the size of two national monuments in his state.

And then there’s Patrick Wyrick, who served as Oklahoma’s solicitor general until last year and is “quite close” to EPA Administrator Scott Pruitt, said Percival. 

It’s unclear what risk there is to the landmark Mass. v. EPA ruling, which opened the door for states to sue the federal government over climate change. A more conservative court could perhaps curtail its reach — the groundwork for which was already laid by Scalia.

“I don’t see any immediate threat,” said Parenteau. “Unless Pruitt decides to simply repeal and not replace the Clean Power Plan. That would set up a lawsuit that could reach the Court and result in overruling or modifying Mass.”

David Doniger, senior strategic director for the Natural Resources Defense Council’s climate and clean energy program, also noted that there have been two key decisions since 2007 that have followed the Mass. v. EPA ruling.

The first came in 2011, when the Court ruled 8-0 that the Clean Air Act authorizes the EPA to regulate emissions from power plants (the Mass. ruling addressed emissions from vehicles). Then in 2014, the Court declined to hear challenges to the EPA’s endangerment finding — that emissions can endanger the health and welfare of the public and future generations — and held that the agency has the authority to set emissions limits from new sources of pollutants subject to the Act’s permitting requirements. (However, it’s under this decision that the Court held the EPA had overreached its authority in regulating smaller sources of pollution that had previously been unregulated.)

But, as Burger pointed out, the four conservative justices on the Supreme Court have “shown they’re okay with upsetting precedent.”

There is one twist, however, that could bring some good news, according to Powers. It’s related to federalism. Some states have recently enacted climate policies that other fossil fuel-producing states view as a threat to their local economy; take, for instance, the current battle between Wyoming and Washington State. Under the dormant Commerce Clause doctrine, states are prohibited from passing laws that are designed to discriminate against out-of-state commerce, Powers explained.


With more conservative judges who value federalism, there could be a scenario in which they do not accept the dormant Commerce Clause because they are more in favor of allowing states to make their own decisions. Justice Clarence Thomas, for instance, has called the clause into question. All of this means that should judges come down against it, it could create an opportunity for states to push more progressive local climate policies. View the article on ThinkProgress here.




I Asked Experts to Predict the Supreme Court’s Unpredictable Future

Get ready for a court that’s even more partisan.

Eoin Higgins – VICE News

Jul 2 2018, 10:21am

Protesters outside the Supreme Court on June 26. Photo by AP Photo/Carolyn Kaster

For liberals, the natural impulse when Justice Anthony Kennedy announced he was retiring from the Supreme Court last week was to worry.

Donald Trump getting another seat on the court will mean a solid majority of conservative justices—Kennedy, a Reagan appointee, nonetheless sometimes sided with the more liberal wing of the court—which could lead to Roe v. Wade getting struck down and some red states resurrecting abortion bans.

Beyond Roe, however, there are other concerns. The court is unpredictable and it’s hard to say with anything approaching certainty what kind of cases future justices will hear and decide. But it’s possible to make broad predictions, which is what I asked four court-watchers to do.

Anil Kalhan, a law school professor at Drexel University, sees the court becoming more partisan. That doesn’t mean a more conservative court—though, he added, that’s sure to be the case with another Trump nominee—but one where decisions continue to be “aggressive.” When the court makes 5–4 decisions that rely on a single swing vote, as was the case with Kennedy, the majority is less likely to look to find middle ground with the other side because it doesn’t need their votes. That trend, Kalhan said, will continue.

Of course, that’s just part of the court becoming more political. Kalhan specifically pointed to the court’s right-wing leanings and justices’ ties to the political conservative movement as indicative of a negative trend in the behavior of some justices. “The GOP and the conservative movement have treated the court much more as a political institution than the Democrats,” Kalhan explained.

To Kalhan, the issue is about more than the court ruling in favor of the Republican Party and the conservative movement on cases involving voting rights. Clarence Thomas’s wife, Virginia, is a lobbyist and Tea Party activist; justices openly speak at gatherings of the right-wing legal group the Federalist Society, which is playing an outsized role in selecting Kennedy’s replacementafter its success in presenting the president with Justice Neil Gorsuch.

“I see the idea of the court as an honest broker has been diminishing and what I would predict—given the list of people Trump will nominate—is that that will be exacerbated,” said Kalhan.

But the court may not move too aggressively to remake American society. Peter Irons, an emeritus political science professor at UC San Diego, said that he has faith that Chief Justice John Roberts’s sense of his legacy will mean he won’t want bring too much controversy to the court. That’s why Irons doesn’t see a Roberts court, even one with a hard-right majority, overturning “bedrock decisions” for gay marriage and abortion.

“I think Roberts has no desire to change that,” said Irons, adding that decisions like those could result in “political civil war.”

Kalhan agreed. “This is at odds with what I think the public image is that Roberts wants,” he said. “He’s an institutionalist, he cares about the court’s reputation.”

Concerns over social issues like gay rights and abortion may well be overblown, Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School, told me. That’s not to say the concerns aren’t real, Somin said, but the future of the court is unsure and there may be some parts of a prospective justice’s belief system that even intense Federalist Society vetting won’t catch.

As for how that could play out? Well, first of all, Somin said that he thinks even a court with a hard-right majority may be open to upholding Roe. And the 2015 ruling on gay marriage seems unlikely to be overruled, though Somin did warn that there could be some restrictions that stop short of an outright ban.


Melissa Powers, a law professor at Oregon’s Lewis and Clark University, envisions many questions about civil rights becoming state, rather than federal, issues. If Roe is overturned, for example, that may open the door to opportunities for blue states to enact far-reaching social legislation even as GOP-led states are emboldened to restrict rights. The upside, Powers said, is that left-leaning legislation at the state level could be given the same leeway. “A lot of the potential candidates [for the court] will be sympathetic to states’ rights,” said Powers.


Kalhan cautioned against reading too deeply into the court’s changes, at least in the short term—historically the court has never been very predictable. “It’s a 5-4 court, things could still change,” said Kalhan, adding that in five or ten years, “We could be having a different conversation.”

But there are policy issues that the planet can’t afford to wait on.

It’s unlikely the federal government will do much to address climate change under Trump, for instance, and Kennedy’s replacement is likely to be more hostile toward environmental regulations, according to Powers. Kennedy was a swing vote on a couple of cases where he joined the liberal justices in ruling in favor of climate hawks, she added. Whoever Trump nominates to replace Kennedy will assuredly be much more hostile to the environment.


“If you have a justice who is very eager to not allow for environmental regulation, they could go in and look to restrict the federal regulations,” said Powers.

The only thing that’s for sure, said Somin, is that we have no way to predict the new justice’s effect on the court and the country. We likely won’t for many years to come.

“There are a lot of issues that could come up that we cannot foresee,” Somin said. “These justices may serve for 20, 30 years and things come up that weren’t anticipated when they were vetted—it’s hard to predict.”

Read the article on VICE news here

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