New SCOTUS Appointment Could Mean More EPA Deregulation

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Jason Hopkins Immigration and politics reporter
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Justice Anthony Kennedy’s announced departure from the Supreme Court, and a more conservative judge potentially succeeding him, could further environmental deregulation efforts.

In his three decades of service on the nation’s highest court, Kennedy has served as a pivotal swing vote on a number of cases. When it comes to environmental issues, Kennedy has sided with the majority opinion a vast majority of the time. President Donald Trump’s chosen successor will mark an ideological shift in SCOTUS decisions overall, but Kennedy’s retirement may have a more stark impact on environmental 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,” said Richard Lazarus, a law professor at Harvard, in a statement to The Atlantic. “You don’t win without Kennedy.”

Some legal experts believe the addition of a conservative justice could mean the reversal of Massachusetts v EPA, a 2007 Supreme Court decision that enabled the EPA to regulate carbon dioxide and other greenhouse gas emissions. Kennedy joined the liberals in the tight 5-4 vote, with the results greatly empowering the government to regulate air pollution. (RELATED: Here Are The Early Favorites For Justice Kennedy’s Replacement)

“I think the Supreme Court without Justice Kennedy will be even more likely to look skeptically at [greenhouse gas] regulation, and be more open to efforts to cabin it, if another administration ever returns to it,” Jody Freeman, a former Obama administration employee, said in a statement to Axios. “And a new, more conservative Justice in the mold of a Justice Gorsuch might be more deferential to the anti-regulatory impulses of the current administration.”

Major federal laws that could be rolled back include, Clean Water Act, Clean Air Act and Endangered Species Act, among others.

Since entering office, Trump and EPA Administrator Scott Pruitt have led a monumental deregulation effort of environmental rules enacted during the Obama era. A more conservative SCOTUS would likely help prevent this agenda from being curtailed at the judicial level.

Speaking at the White House after news of Kennedy’s retirement broke, Trump confirmed that he would be drawing from a short list of possible Supreme Court nominees assembled during the 2016 campaign. Five more candidates were added to this list of conservative judges in November 2017.

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