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Kavanaugh Confirmation Fight Has Consequences for Climate Law


If Senate Republicans plow ahead and confirm Brett Kavanaugh to the Supreme Court, the longtime jurist could have near-term impact on a slew of environmental cases.

Among the disputes the high court has agreed to hear this fall: a case that pits villagers from India against the World Bank in a fight over a coal plant. If the villagers prevail, it could have worldwide economic and political repercussions.

Several other climate-related issues have a decent shot, too, of getting a future date with the Supreme Court, including one closely watched fight—the “kids’ climate case”—that makes the far-reaching argument that the government must take action on global warming so as not to imperil future generations.

Kavanaugh—currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit—would replace Justice Anthony Kennedy, who retired in July after three decades of service and dozens of landmark decisions.

Kennedy was often a swing vote on the ideologically divided court, and he played a key role in several major environmental cases.

In 2007, for example, he sided with the court’s liberal wing in the case Massachusetts v. EPA, which granted EPA the authority to regulate greenhouse gases. A year later, he joined with the court’s conservatives to limit the financial damages against Exxon Mobil Corp. for its role in the Exxon Valdez spill of 1989, which coated miles of Alaska coastline with oil.

Kavanaugh, nominated to the high court by President Trump in July, likely would shift the court further to the right. But a rightward shift would occur regardless of whether Kavanaugh weathers the sexual assault allegations that multiple women have raised. If the Kavanaugh nomination is derailed, Trump would likely tap an equally conservative replacement.

There’s a lot at stake for domestic and international efforts to address climate change. Here are five brewing legal fights in which the future justice could play a role.

Kids want action on climate

When they filed their lawsuit in 2015, the plaintiffs behind what has become known as the “kids’ climate case” picked the biggest target available: the U.S. government.

Three years later, their case—Juliana v. United States—appears bound, tractor-beam-like, for the Supreme Court.

The 21 plaintiffs, all children and young adults, argue that the federal government has chipped away for years at their constitutional right to live in a safe environment.

From one administration to the next, the government allowed decades’ worth of planet-warming emissions to accumulate, even though top researchers at national laboratories and around Washington knew of man-made climate change and its perils, they say.

Through their case, the plaintiffs want a court to declare that their rights as U.S. citizens have been violated and to force the government to draft a plan to phase out fossil fuels.

No matter the outcome of the case, which is slated for trial beginning in late October in a federal Oregon court, it will likely wind its way back to the Supreme Court.

Justices in July rejected the Trump administration’s attempt to halt the trial, though they hinted at concerns at the case’s scope (E&E News PM, July 30).

Julia Olson, counsel for the plaintiffs, said then, “This decision should give young people courage and hope that their third branch of government, all the way up to the Supreme Court, has given them the green light to go to trial in this critical case about their unalienable rights.”

A Justice Department spokesperson called the case “deeply misguided” and noted that the Obama administration had opposed the suit, too.

Villagers take on the World Bank

In January, a group of villagers from western India petitioned the Supreme Court to hear their case against the World Bank, and at Oct. 31 oral arguments, the justices will listen.

At issue is the liability of the International Finance Corp., the lending arm of the World Bank, which financed a coal plant in Gujarat, on India’s western coast, home to the plaintiffs.

The plaintiffs sued the IFC in 2015, accusing it of violating its own environmental policies when it extended $450 million in loans for the project to Tata Power Ltd., an energy conglomerate in the country.

“Without the IFC’s funding, the Tata Mundra Project could not have gone forward,” they said (Climatewire, July 26, 2017).

The plant spews coal dust, ash and other toxic debris, according to the plaintiffs, who say its existence has killed and scared off fish, which they rely on for income. But the D.C. Circuit ruled against the plaintiffs, who want a court to declare that the IFC is not immune to lawsuits like theirs.

The IFC defends its actions, and in court papers, its lawyers argue that allowing this case to proceed would expose multinational entities such as the World Bank or the International Monetary Fund to a rash of similar suits from foreign nationals.

In a brief filed Sept. 10, Donald Verrilli Jr., former solicitor general under President Obama, who is representing the IFC, stuck to the slippery-slope stance.

A ruling against the IFC, the brief says, “would open U.S. courts to a flood of foreign-focused lawsuits that would require U.S. courts to second-guess international organizations’ core policy judgments, and that have only the most tenuous connection to the United States.”

Kavanaugh questions EPA’s reach

One big question before the high court is one that Kavanaugh already has dealt with—how far can EPA go to regulate hydrofluorocarbons, a class of potent greenhouse gases?

Under Obama, EPA in 2015 barred the use of HFCs in four major economic sectors: aerosols, air conditioning for new cars, retail food refrigeration and foam blowing.

Two foreign manufacturers sued in response to the rule with the claim that EPA had overstepped its authority under the Clean Air Act.

Kavanaugh agreed, and in a 2017 majority opinion for the D.C. Circuit, he asserted that EPA had “tried to jam a square peg … into a round hole.”

“The Supreme Court cases that have dealt with EPA’s efforts to address climate change have taught us two lessons that are worth repeating here,” he added.

“First, EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate,” Kavanaugh continued. And second, he wrote, “Congress’ failure to enact general climate change legislation does not authorize EPA to act.”

The issue is now on the radar of the high court, which soon could decide whether it wants to weigh in. Justices are scheduled to consider petitions challenging the ruling at their Oct. 5 conference.

If Kavanaugh is ultimately confirmed, his biggest impact likely could be his previous opinion, as it’s typical for justices to recuse themselves from cases in which they already have played a part.

What happens to Trump’s replacement of the Clean Power Plan?

Even if justices reject the HFC case, EPA’s authority to regulate greenhouse gases may still wind its way back up to the high court in the form of challenges to the Affordable Clean Energy rule, the Trump administration’s proposed replacement for the Clean Power Plan.

The ACE rule is aimed at cutting carbon dioxide emissions from power plants. If finalized, it’s certain to face strong legal challenges from opponents who say the rule does not do enough to cut CO2 or protect public health.

Because EPA is still developing the rule, it would likely take until 2020, barring any major delays along the way, before the case could even get in front of justices, according to Joanne Spalding, deputy director of the Sierra Club’s Environmental Law Program.

EPA would first have to finalize the rule, and initial challenges would have to go through the D.C. Circuit.

A faster way to the high court would be if the D.C. Circuit agreed with a recent request by states and environmental groups to decide on litigation on the Clean Power Plan. The case has been on hold as the agency has been drafting the ACE rule.

If the court does decide the case—and Spalding suggested the D.C. Circuit could respond when the latest extended stay of litigation expires—parties would then be open to appeal to the Supreme Court.

Clean cars fight raises ‘interesting’ legal issues

The high court in years ahead could also look at the Trump administration’s bid to roll back motor vehicle mileage and pollution rules.

EPA and the National Highway Traffic Safety Administration are examining whether to freeze the standard at 30 mpg from 2020 through 2026. The Obama administration wanted 36 mpg by 2026.

The Trump agencies also proposed peeling back California’s authority to set more stringent standards. That could kill the Golden State’s programs aimed at getting more clean cars on the road.

If a final rule revoked California’s waiver, the state would likely sue. But California and other states could also separately sue over a final rule that froze mileage and emissions at 2020 levels. That case potentially would question EPA’s ability to allow more tailpipe pollution, given the Supreme Court’s decision in Massachusetts v. EPA.

Ann Carlson, co-director of the Emmett Institute on Climate Change and the Environment at the University of California, Los Angeles, said the Supreme Court likely would be interested, especially in the California waiver question, because it’s “novel.”

“It would raise questions that the justices would find interesting,” she said. “They’ve never weighed in on the power of California under the waiver.”

In terms of a case looking at vehicle mileage and pollution levels, Carlson said, the court has “tended to take up these big, meaty environmental issues,” like regulations on mercury pollution and greenhouse gases.

“It just seems like they have shown interest in weighing in on EPA authority and interpreting the Clean Air Act in particular,” she said.

If he’s confirmed, Kavanaugh might urge his colleagues to look at a case dealing with EPA authority. “He’s interested in questions of agency power and statutory power that these cases raise,” Carlson said.

Reporters Benjamin Hulac, Niina Heikkinen and Anne C. Mulkern contributed.

Reprinted from Climatewire with permission from E&E News. E&E provides daily coverage of essential energy and environmental news at www.eenews.net.


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