Ginsburg’s death could lead to Supreme Court opposition to expansive reading of Clean Air Act. Also reawaken Massachusetts v EPA Supreme Court decision forcing EPA to regulate greenhouse gases.

October 2, 2020

If President Trump is able to confirm a nominee to replace the late Justice Ruth Bader Ginsburg on the nation’s highest bench, he may stymie climate action for generations to come according to a September 22, 2020 E&E News Rreport.

In either case, court watchers say, the outcome doesn’t bode well for the future of climate regulation.

Legal experts say that the addition of a sixth conservative justice to the court could lock in opposition to expansive readings of the Clean Air Act that encompass greenhouse gas emissions. It could also trigger a reexamination of the landmark 2007 climate case, Massachusetts v. EPA, in which a 5-4 Supreme Court ruling forced EPA to regulate carbon dioxide and other greenhouse gases including methane, nitrous oxide and ozone.

“Climate change is a crisis, and we really need all the tools we can get, and some of them are probably not going to be there,” said Dan Farber, a law professor at the University of California, Berkeley.

A conservative Supreme Court majority that favors curbing agency powers could limit oversight of emissions without even touching Massachusetts v. EPA, said Hana Vizcarra, staff attorney at Harvard Law School’s Environmental & Energy Law Program. “EPA has been reconsidering their own interpretations of the law in order to limit their own authority,” she said.

“That’s something that this more conservative court may be more inclined to agree with them about, for example, the scope of the Clean Air Act as a much more limited scope that would not allow for the latitude to really take aggressive action against climate change.”

Georgetown Law Center professor William Buzbee noted that Ginsburg had a more pragmatic approach to reading statutes, deferring to agencies when they have demonstrated ample work and review of scientific expertise.

But right-leaning justices tend to give agencies less leeway, which could hurt legal challenges of Trump rollbacks before a court with six Republican-appointed jurists.

If Democratic nominee Joe Biden wins the election and chooses to roll out stronger climate policies, the administration’s reach could be hemmed in under a 6-3 conservative Supreme Court.

What this means to you
Legal experts say the addition of a sixth conservative justice to the Supreme Court doesn’t bode well for the future of climate regulation and could lock in opposition to expansive readings of the Clean Air Act that encompass regulating greenhouse gas emissions.

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