Known swing voter Justice Anthony Kennedy is retiring, which means Donald Trump is all but certain to appoint another Supreme Court justice. And that could have huge ramifications for the environment.
In addition to holding sway on everything from uteruses to workers rights for generations, whoever gets the job will also almost certainly rule on cases about wetlands, endangered species, and the big kahuna, climate change. How rulings come down on these cases will reverberate around the world for generations since the U.S. is the second-largest carbon polluter on the planet and humanity has basically 12 years to get its act together.
“The replacement for Kennedy will cast deciding votes on every environmental issue winding its way up through the federal courts for decades to come,” Hillary Hoffmann, a professor at the Vermont Law School, told Earther. “With the Executive branch pulling out of the Paris Agreement, Congress ramping up legislative efforts to undermine environmental protections that have been in place for decades, and the Supreme Court in a 6-3 conservative majority, things are looking very bad for environmental protection and natural resource conservation in the United States.”
Conveniently for us, Trump already has a list of 25 potential nominees he’s said he’ll refer to. Here are some of ones that could pose the greatest risk to environmental regulations and the planet.
Senator Mike Lee
As a senator, Lee has voted to limit the Environmental Protection Agency’s (EPA) ability to regulate greenhouse gases as pollutants and denied that they cause climate change, calling the research behind that conclusion and Democrats’ desire to act a “cheap public-relations ploy masquerading as a monopoly on scientific knowledge.”
This is a major issue since the Supreme Court has previously ruled the EPA does, in fact, have the grounds to regulate greenhouse gases as pollutants under the Clean Air Act. Kennedy cast was the deciding vote on that case, known as Massachusetts vs. EPA. A Justice Lee could open the door to reversing that ruling.
In addition to denying climate change, in 2016 Lee sent a letter to then Attorney General Loretta Lynch about climate lawsuits being brought by state attorney generals against oil companies, as well as any potential federal actions. In the letter, he decried “government officials at all levels are threatening to wield the sword of law enforcement to silence debate on climate change.” Which just no, but also it’s pretty clear how Lee would rule should an #ExxonKnew case came before him.
Oh, and Lee also got into a fight with ace environmental reporter Emily Atkin on Twitter after she pointed out he said something extremely wrong about NASA, so I guess he and Trump can also bond about being Mad Online.
Currently serving on the DC Circuit, we already know what Kavanaugh thinks about certain environmental protections. Spoiler: he’s not a fan. He struck down an Environmental Protection Agency rule that allowed it to regulate pollution across state lines, dubbed the “good neighbor rule.”
That decision was appealed to the Supreme Court, which reversed the Tenth Circuit ruling in 2014. Kennedy voted with the 6-2 majority. Clearly, Kavanaugh wouldn’t have.
Pryor was Alabama’s attorney general from 1997-2004 before moving onto the bench of the Eleventh Circuit Court as a Bush appointee. Along the way, he’s issued amicus briefs—statements in support of defendants or plaintiffs in a particular case—for a number of cases. That includes a few that argued against the government regulating plowing practices as well as waste disposal on wetlands. The latter led Senator Patrick Leahy (D-Vermont) to argue against his appointment to the bench, noting the following (emphasis added):
“He argued that the Constitution’s Commerce Clause does not grant the federal government authority to prevent destruction of waters and wetlands that serve as a critical habitat for migratory birds. The Supreme Court did not adopt his narrow view of the Commerce Clause powers of Congress. While his advocacy in this case is a sign to most people of the extremism, he trumpets his involvement in this case. He is unabashedly proud of his repeated work to limit congressional authority to promote the health, safety and welfare of all Americans.”
He’s not a fan of the Clean Air Act and is a cooperative federalism acolyte like Scott Pruitt. Though he once ruled on a case around Hemingway House’s polydactyl cats and animal welfare, so there’s that at least.
Trump bumped Willet from the Texas Supreme Court up to the federal Fifth Circuit Court last year. In doing so, Willet may or may not have been told to stop tweeting. Too bad, because his tweets are instructive!
From them, we can glean he doubts climate change could’ve played a role in causing the Syrian civil war despite science indicating otherwise, he’s interested in the role of states in limiting local fracking bans, and he has a passing interest in endangered species, including one that Susan Combs, another Trump nominee, tried to keep off the endangered list because it got in the way of oil and gas development. Oh, and he also frequently drove his Expedition (17 city/24 highway mpg) down near empty and has an affection for this Shiner Bock ad about Texas weather.
Beyond the tweets, there’s also his record as a Texas Supreme Court justice. He was appointed by then-Governor Rick Perry and subsequently re-elected twice. He took $535,475 from individuals in the oil and gas industry for those elections, making them his second biggest donor after lawyers and lobbyists.
While on the court, he concurred on a 2008 case about about landowners’ rights to sue energy companies. The case centered around a fracking operation on one side of the property line that hoovered up gas from the other. The court found property owners couldn’t sue, but what’s most interesting is Willet’s concurrence, which is pretty policy-heavy. Some portions, emphasis ours:
At a time of insatiable appetite for energy and harder-to-reach deposits–iron truths that contribute to $ 145 a barrel crude and $ 4 a gallon gasoline–Texas common law should not give traction to an action rooted in abstraction. Our fast-growing State confronts fast-growing energy needs, and Texas can ill afford its finite resources, or its law, to remain stuck in the ground...Amid soaring demand and sagging supply, Texas common law must accommodate cutting-edge technologies able to extract untold reserves from unconventional fields.
On the plus, he did acknowledge the world’s energy mix has to change while adding the caveat that “fossil fuels will still meet as much as 80% of global energy demand through 2030.”
It’s hard to look at all that and not wonder how he would rule on energy issues before the court, particularly those around fossil fuels.
We got a Scott Pruitt pal! Wyrick served as Oklahoma’s solicitor general while Pruitt was the state’s attorney general and later as a Supreme Court justice for the state.
While solicitor general, Wyrick was caught up in the Devon Energy scandal wherein Scott Pruitt took talking points from the fossil fuel company’s lobbyist, slapped them on state letterhead, and sent them to the EPA. Wyrick was cc’d on a ton of those emails including one where he was among the people to get a belly rub from Devon’s lobbyist after they sent the letter.
Like your boy Scott, he’s also shit all over the EPA, submitting amicus briefs and being party to cases asking the agency to take it easy on the industries it’s supposed to regulate (that includes the “good neighbor rule” case mentioned earlier). He also issued an amicus brief in a case against the Federal Energy Regulatory Commission (FERC) on whether the agency can rule about what’s known as demand response, which essentially requires utilities to pay big consumers to reduce their energy use at peak demand times. Energy producers weren’t happy with the rule because that meant they would sell less energy at the highest price (it also means lower blackout risk and fewer carbon emissions).
Wyrick supported the producers in his amicus brief under the guise of states rights. The Supreme Court disagreed with him and the trade group that filed the case, ruling in FERC’s favor. Kennedy voted with majority. I imagine Wyrick would not have.
He’s only 37 years old (what am I doing with my life?) so he would be around for a while.
This is just a smattering of the flotsam and jetsam on the list. And it doesn’t even begin to get into all the other ways these people could screw over Americans on the regular (if you’d like to know more about that, please read Splinter). But regardless of who Trump chooses, there’s doesn’t appear to be much good that will come out of it for the environment and the climate.
“Also, scanning the list, many members of the Federalist Society, many former clerks for Scalia, Alito, Thomas,” Hoffmann said. “We know what that means for the environment, especially given Scalia’s record.”
Paola A. Rosa-Aquino contributed reporting for this story.
This post has been updated to reflect that Brett Kavanaugh serves on the DC Circuit and not the Tenth Circuit as previously stated.