Justice Kennedy’s retirement could reshape the environment


The retirement of Justice Anthony Kennedy, announced Wednesday in a letter hand-delivered to President Trump, could bring about sweeping changes to U.S. environmental law, endangering the federal government’s authority to fight climate change and care for the natural world.

With Kennedy gone, a more conservative Supreme Court could overhaul key aspects of the Clean Air Act, the Clean Water Act, and the Endangered Species Act, legal scholars say.

And any new justice selected by President Trump would likely seek to weaken the Environmental Protection Agency, curtail its ability to fight global warming, and weaken its protections over wetlands.

The reason has to do with simple math.

As on many other issues, Kennedy has functioned as the court’s swing vote on the environment, occasionally joining with the court’s four more liberal justices to preserve some aspect of green law.

“He’s been on the court just over 30 years, and he’s been in the majority in every single environmental case but one. You don’t win without Kennedy,” said Richard Lazarus, a law professor at Harvard who has argued 14 cases in front of the Supreme Court.

“I think more than the other more conservative justices, Kennedy seemed open to embracing the idea that tough national laws were necessary to address some types of problems,” he told me.

“He was concerned about private-property rights and the marketplace, but open to the necessity of tough environmental laws.”

Other legal scholars and environmental advocates agreed.

“The loss of Kennedy is not good news for environmental regulation,” said Ann Carlson, a law professor at UCLA and the co-director of the Emmett Institute on Climate Change and the Environment.

The nation’s highest court would now “almost certainly” be more hostile to environmental law than it has been since the founding of the EPA in 1970, said Jonathan Z. Cannon, a law professor at the University of Virginia.

“With the departure of Justice Kennedy, this is no time to mince words: We are in for the fight of our lives,” said Trip Van Noppen, the president of the environmental-legal-advocacy group Earthjustice, in a statement. Continue reading

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