Supreme Court Justice Anthony Kennedy is Retiring. The Environment, Already in Danger, is Further in Peril

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This week Supreme Court Justice Anthony Kennedy announced his retirement from the Supreme Court.  Justice Kennedy, a conservative, was appointed by President Ronald Reagan in 1987.  Although conservative, Kennedy’s upbringing in California is credited for his strong libertarian streak, often causing consternation to his court colleagues and petitioners alike. Kennedy often acted as the swing vote on substantial cases, and his legacy will be debated for years.  Others will no doubt write on the effect that his retirement, and the effect Trump’s appointment will have on major issues such as the right to abortion and same sex marriage. This blog is concerned with the possible effect of his retirement on environmental regulations and the role of the Supreme Court in interpreting them.

As a moderate on an increasingly divided court Kennedy was often in the majority on environmental cases.  He was often called the justice to whom “advocates must tailor their cases or risk losing their appeals.” In April of 2018 The New York Times called Kennedy the “equal opportunity disappointer.”  Kennedy aligned himself at times with the EPA and conservatives on the court as in Utility Air Regulatory Group v. EPA where he joined Justice Scalia’s majority opinion limiting the EPA’s regulation carbon dioxide emissions to large stationary pollution sources like power plants and exempting smaller polluters, like apartment buildings, small businesses and schools.  

Utility Air followed the landmark decision in Massachusetts v. EPA, a 2007 global warming case in which Kennedy was the crucial swing vote.  In that case, the state of Massachusetts had challenged EPA’s refusal to regulate greenhouse gases despite overwhelming science and evidence that these gases were harmful to human health and the environment.  Here, although he did not write the opinion, Kennedy joined the four liberal justices in requiring the EPA to regulate greenhouse gases like any other pollutant, unless the Bush-era EPA could come up with a “scientific basis” for its position. (It could not.)

Trump’s appointee for Justice Kennedy’s seat on the Supreme Court has yet to be revealed, and a contentious confirmation process is likely.  What can be known from examining Trump’s short list of possible appointees is that each of them is more conservative and more likely to find in favor of industry interests in loosening regulations and weakening the power of the EPA to regulate pollutants.

Kennedy’s retirement and the looming Trump appointment, for which he called for someone to be “there for 40 years, 45 years” in order to stamp the court with his mark for decades is a critical example of why elections are important.  I have written elsewhere on this blog about the Trump Administration’s repeated assaults on the environment, its absolute disregard of climate change and other science, and its unceasing attempts to defund, defang and weaken the EPA’s ability and jurisdiction to regulate polluters and safeguard the environment and the public health to the point of making the  agency irrelevant. Trump has also failed to fill hundreds of critical positions in his government—many involved with science and the environment.

Why is this important?  Elections determine not only who sits in the Chief Executive’s chair or who sits in Congress, but also what type of persons fill the unnumbered positions in federal agencies.  These individuals, appointed by those elected, direct the day-to-day functions of our government. Those individuals are where the rubber meets the road. The myriad decisions they make every day effect how our government is run and the way our government is run.

So: here is just one more reason why elections and your participation in the political process is vital. The following are excerpts from the decision rendered also this week by the United States District Court for the Northern District of California (Judge William Alsup) dismissing the climate change lawsuit brought against major producers of fossil fuels by the city of Oakland and the State of California for damages related to sea level rise attributed to global warming caused by the burning of fossil fuel:

“This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive and at least the Senate…

In sum, this order accepts the science behind global warming. So do both sides. The dangers raised in the [lawsuits] are very real. But those dangers are worldwide. Their causes are worldwide. The benefits of fossil fuels are worldwide. The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury…

While it remains true that our federal courts [and this court] have authority to fashion common law remedies for claims based on global warming, courts must also respect and defer to the other co-equal branches of government when the problem at hand clearly deserves a solution best addressed by those branches. The Court will stay its hand in favor of solutions by the legislative and executive branches. For the reasons stated, defendants’ motion to dismiss [the lawsuits] is GRANTED.”

The Court, despite admitting that it had the power to decide the case decided not to: out of deference to “the expertise of our environmental agencies, our diplomats, our Executive and at least the Senate…”  

Deference paid to climate change deniers, science deniers, a climate change denying Executive, and federal environmental agencies stripped of their budgets and powers to regulate so that industry can profit.

This is why elections are important.

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