By Horace Wang October 4, 2020 While most Americans concerned about anthropogenic climate change may choose to focus on pressuring the President, executive agencies, and Congress to take action, many Americans overlook the role of the Supreme Court in shaping responses to climate change. There are many points of origin for the Supreme Court’s modern-day involvement in climate change and […]
By Horace Wang
October 4, 2020
While most Americans concerned about anthropogenic climate change may choose to focus on pressuring the President, executive agencies, and Congress to take action, many Americans overlook the role of the Supreme Court in shaping responses to climate change.
There are many points of origin for the Supreme Court’s modern-day involvement in climate change and environmental issues, one of them being the Massachusetts v. Environmental Protection Agency (2007) decision. Narrowly decided in a 5 to 4 vote, the outcome empowered the federal government with the ability to regulate greenhouse gas emissions under the Clean Air Act. That included the power to curb pollutants from the two largest sources of emissions that cause climate change — power plants and vehicles, – it is no surprise that climate activist of the 350 movement Frederick Hewett wrote, “Massachusetts v. EPA is as critical to the climate movement as Roe v. Wade is to the pro-choice movement.”
Harvard Law School Professor Richard Lazarus echoes this sentiment, noting that “Massachusetts v. EPA is the most significant decision for environmental law because not only did the Supreme Court take the case and then rule in favor of the environmentalists, but also because the rule in itself had huge sweep and impact.”
Despite not being directly related to the environment, the Supreme Court’s Citizens United decision in 2010 is perceived by some as having contributed to the polarization surrounding the conversation on climate change.
Senator Sheldon Whitehouse (D-Rhode Island), a member of the Senate Environment and Public Works Committee, has argued that the increases in corporate political spending have significantly impacted the democratic process, especially when it comes to climate change legislation. Whitehouse notes that there used to be, “a constant steady heartbeat of Republican climate change activity in the Senate,” but after the Citizens United ruling, “no piece of carbon dioxide regulation legislation has managed to get a single Republican co-sponsor in the Senate.” Whitehouse partially attributes the polarization surrounding climate change to the fossil fuel industry’s increased influence over the political parties following the Citizens United decision.
Towards the end of the Obama presidency, the Supreme Court hindered aspects of the Obama administration’s efforts to regulate greenhouse gasses and combat climate change in 2016 by permitting a request made by 27 states and a number of companies and business groups to block the Obama administration’s Clean Power Plan. Mandating a shift to renewable energy from coal-powered electricity, the plan was intended to lower carbon emissions from American power plants by 2030 to 32 percent below 2005 levels and serve as the main mechanism for the U.S. to meet the emissions reduction targets under the Paris Agreement. Opponents of the Clean Power Plan cited the economic damage that reducing emissions would have on their respective economies and the belief that the Obama administration exceeded its authority under the Clean Air Act, whereas others, including a dozen other states and the National League of Cities, expressed support for the plan.
One of the similarities between the above cases is that Justice Ruth Bader Ginsburg was involved in all of them, and that she was often seen as a reliable vote for the environment in the cases that made it all the way to the Supreme Court. Which brings us to the present day. According to legal experts, Justice Ginsburg’s death will likely have a lasting impact on environmental cases heard by the Supreme Court. At the current moment, three of the current justices are more sympathetic to environmental interests, whereas the other five are generally more skeptical.
Although an empty seat on the court could limit the number of environmental cases that the Court takes up in the first place, that could change shortly if Supreme Court nominee Judge Amy Barrett is confirmed.
While Barrett possesses a relatively limited record on climate and environmental matters, she is expected to be a reliable vote for the Court’s conservative bloc on environmental issues.
This could lead to future environmental rollbacks or make it more difficult to increase emissions through broad interpretations of statutory authority. Some believe that Barrett’s approach to environmental issues will be similar to Justice Scalia’s in that she will be a textualist who is largely skeptical of “about big, novel regulatory programs under very old statutes,” as Adam White, the executive director of the C. Boyden Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School claims. On the other hand, other experts believe that a conservative Supreme Court is not a surefire guarantee that businesses will always win and environmentalists will always lose, suggesting instead that a more conservative Supreme Court will result in more close readings of environmental legislation as well as climate action being more dependent on straightforward interpretations of already-existing environmental statutes.
Nonetheless, there is little doubt among those who closely follow the court’s politics that a conservative Supreme Court could hinder future presidential administrations’ abilities to pursue ambitious climate change proposals. According to a Brookings Institution Nonresident Senior Fellow Barry Rabe, a significantly conservative Supreme Court “likely dials back ambition for any future president to try to achieve a major environmental policy reform through unilateral executive action.”
In that regard, the Supreme Court will likely play a major role in evaluating environmental regulation regardless if President Trump or former Vice President Joe Biden win this year’s presidential election. If Trump wins another term, legal experts expect conflict over the administration’s new rules governing implementation of the National Environmental Policy Act, carbon dioxide emissions from power plants and pollution in federally protected waters. If Biden wins, there will likely be a resurgence in federal agencies’ role in environmental regulation and opposition to Trump-era rollbacks, which could be met by a new round of litigation and potential blockades by a conservative court.
Amidst a contentious battle over filling the vacancy on the Supreme Court, there remains a number of environmental cases that the Supreme Court will rule on in the near-future.
Recently, the Supreme Court agreed to hear a case by energy companies, like BP, Chevron, and Exxon Mobil, that are contesting a lawsuit by the city of Baltimore in response to the city seeking damages for the impacts of climate change. The Supreme Court will determine whether or not the lawsuit must be heard in the state court or the federal court. The city prefers the former, companies favor the latter. The outcome of this ruling could have major ramifications for similar lawsuits from states, counties, and cities that are similarly trying to hold companies accountable for climate change.
By no means do the above cases and developments represent the entirety of the Supreme Court’s involvement in environmental politics and the issue of climate change; they are merely intended to provide a snapshot into the Supreme Court’s role in shaping and evaluating efforts to combat climate change. Nonetheless, analysis of past Supreme Court decisions regarding climate change tells us much about what may be in store for present and future rulings. Above all else, it highlights the often overlooked role and power that the Court possesses regarding efforts to combat climate change.