The landmark 2007 decision, called Massachusetts vs. Environmental Protection Agency, gave the federal government the power to regulate greenhouse gas emissions.
Now with President Trump poised to add a sixth conservative justice, some conservatives are itching for the high court to take some of that power away. The question is whether the Supreme Court will take up future cases tackling climate change — and how far a more conservative bench will go to chip away at its past decision.
“I can’t see a Trump appointee upholding Massachusetts v. EPA,” said Steve Milloy, a former member of Trump’s transition team who serves as a board member of the Heartland Institute, a libertarian think tank dismissive of the scientific consensus on climate change.
Noting the increasingly right-leaning tilt of the high court, Milloy added: “If you force them to vote on it, we win.”
Most remember Ginsburg’s legacy on gender equality. But she was also a crucial vote in climate change cases.
Toward the beginning of the George W. Bush administration, Massachusetts led 11 other states in petitioning the EPA to do more to stop global warming. When the agency refused, the states sued to compel it to regulate carbon dioxide and other greenhouse gas emissions under the Clean Air Act.
In a 5-to-4 decision, the high court sided with the states and said greenhouse gases ought to be considered air pollutants if agency scientists determine they are a threat to human health. President Barack Obama’s EPA went on to make that so-called “endangerment finding” in 2009.
The court also said states have standing to sue over the changing climate.
Until last week, Ginsburg was one of only two justices still on the court who were part of the majority. The other is Stephen G. Breyer.
There are a number of ways the crucial climate ruling could be eroded.
Lisa Heinzerling, a professor of environmental and administrative law at Georgetown University, said a more conservative Supreme Court may grind down the ruling by undoing just a part of the sprawling decision.
“If you take them apart, it becomes really easy to see how parts of those could go, with a six-justice majority,” Heinzerling said.
If the high court withdrew the ability of state or environmental groups to sue over climate change, for example, there would be little to stop an administration that rejects climate science from completely ignoring the problem, she said.
The court could take other steps, such as reining in the EPA’s jurisdiction or requiring additional cost-benefit analysis from the agency to justify its climate rules, according to Jody Freeman, a scholar of administrative law and environmental law at Harvard.
The court, she said, has already “signaled it is open to doing” that.
David Doniger, senior strategic director of the Natural Resources Defense Council’s climate and clean energy program, agreed Massachusetts will be a “target” of a more conservative court. But he doubted it would throw the whole ruling away.
“It’s precedent. It’s the right reading of the law,” he said. “I don’t think you’d see an outright reversal.”
Some opponents of climate rules worry the court won’t make their concerns a priority.
“Although there might be enough Justices to overturn Mass. v EPA, it’s not clear whether a case challenging it could get to the Supreme Court,” Myron Ebell, an executive at the right-wing Competitive Enterprise Institute, wrote by email.
Ebell, a climate skeptic who oversaw Trump’s EPA transition team, instead hopes Trump wins another term and eventually retracts the agency’s endangerment finding. Doing so would effectively kneecap the EPA from issuing climate rules — without overruling Supreme Court precedent.
The Heartland Institute’s Milloy agreed the court could punt on the issue. “If they want to avoid it for whatever reason, they will.”
The Supreme Court has already hemmed in the EPA’s authority on climate change before.
After the blockbuster 2007 decision, the Obama-era EPA moved to curb their emission from a host of sources, including cars, power plants and oil wells.
But in 2014, the court found the Obama administration had overstepped in interpreting its power under the Clean Air Act. The agency had to exempt electronics manufacturers, beverage producers and a handful of other smaller sources from greenhouse gas regulations.
While the decision mostly validated the EPA’s authority on greenhouse gases, the Federalist Society, the influential conservative think tank, heralded the decision as a “foreshadowing” of what the court may do in the future.
Already some see another opening.
The EPA scrapped the Obama-era regulation on power plant emissions after President Trump’s election, and replaced it with a much less stringent standard.
Environmentalists sued, and the case has made its way to the U.S. Court of Appeals for the District of Columbia Circuit. Arguments start on Oct. 8.
Michael Gerrard, an environmental law professor at Columbia Law School, said the Supreme Court could use that case to whittle away Massachusetts should it land on its docket.
“If Trump is able to name Ginsburg’s replacement,” he said, “that decision becomes a big target for those who want to shut down EPA regulation of greenhouse gases.”
Power plays
Climate change is missing from the list of topics to be discussed in the first presidential debate.
Instead, the topics of the Sept. 29 debate in Cleveland moderated by Fox News anchor Chris Wallace will be the Supreme Court, the coronavirus pandemic, the economy, race relations, the integrity of the election and their respective records, the Commission on Presidential Debates announced Tuesday.
The omission of climate change as a debate topic sparked backlash among many advocates who see uncontrolled greenhouse gas emissions as an existential threat, made even more pressing this year after wildfires on the West Coast.
Earlier this month, 70 members of Congress and nearly four dozen environmental groups urged the commission to make climate change central to the debates.
“At a time when wildfires are burning down an entire coast, it’s absolutely unconscionable for the media to dismiss climate change as a topic in the first presidential debate,” Sunrise Movement co-founder Varshini Prakash said in a statement.
Former CBS News anchor Dan Rather tweeted:
Major companies are making ambitious environmental commitments, even as global diplomacy to combat climate change frays.
Even as the coronavirus pandemic commandeers the nation’s attention, “some of the world’s biggest companies say they have not lost sight of the urgency of climate change and have announced new plans to combat it,” our colleagues Steven Mufson and Brady Dennis report. “Morgan Stanley, AT&T and Walmart made fresh commitments and adopted more aggressive timetables for reducing greenhouse gas emissions. At the same time, General Electric announced that it will no longer build new coal-fired power plants.”
Morgan Stanley became the first major U.S. bank to declare a goal of net-zero emissions from the projects and clients it finances by 2050, an aim that may require the bank to reduce lending to the oil and gas industry. Meanwhile, Walmart announced plans to be carbon neutral in its global operations by 2040, and AT&T set an even earlier deadline of 2035 for going carbon neutral its operations.
But global action on climate change is fraying, with the United States set to leave the Paris accord in just six weeks. An important U.N. climate conference scheduled for November in Scotland was pushed back until 2021 due to the pandemic.
“The world remains far off target when it comes to meeting the aims of the Paris accord, when leaders from nearly 200 nations agreed to work together to limit the world’s warming to “well below” 2 degrees C (3.6 degrees F),” Mufson and Dennis write. “It remains unclear whether the world can muster the collective political will to shift away from fossil fuels in transportation, industry and agriculture that scientists say is necessary to limit global warming.”
House Democrats tee up climate amendments to energy package.
House Democrats set up votes on a number of climate amendments to a large energy bill, even as backers admitted the bill is unlikely to become law in its current form, E&E News reports.
The House Rules Committee on Monday approved 98 amendments for floor debate, setting up a process for final passage of the bill by Thursday. The amendments, from both Democrats and Republicans, include a proposal to codify Obama-era methane rules, a plan to increase money for weatherization assistance and an amendment to establish a climate justice grants program for environmental nonprofits.
“Part of my reason for rushing here is an effort to try to get this over to the Senate so that we can do a consensus bill, which will probably be different from the House bill,” House Energy and Commerce Committee Chairman Frank Pallone (D-N.J.) said. “This is a real effort to get something passed in this Congress on a bipartisan basis, and bicameral as well.”
The Senate is considering a similar legislative package backed by Energy and Natural Resources Committee Chairwoman Lisa Murkowski (R-Alaska) and ranking Democrat Joe Manchin (W.Va.). That bill overcame a major sticking point when Senate Democrats and Republicans agreed on a plan to limit the use of hydrofluorocarbons, a powerful greenhouse gas used for refrigeration.
The White House, however, threatened earlier this week to veto House Democrats’ energy bill over its price tag.
Trump will extend an offshore drilling ban to North Carolina.
Sen. Thom Tillis (R-N.C.) announced his state will be included in President Trump’s 10-year moratorium on offshore oil drilling. The ban, announced at the beginning of the month, originally extended only to Florida, Georgia and South Carolina.
Tillis, who is in a tough reelection race against Democratic challenger Cal Cunningham, took credit for the addition of North Carolina, saying he spoke with the president on Monday. “Our coastal communities and our tourism are vital to our state’s economy, and I’m thankful to President Trump,” Tillis said.
While Tillis has supported offshore drilling in the past, he has expressed concerns more recently about drilling, which is unpopular with many coastal communities and some local Republican leaders in the state.
Trump Cabinet members doubt link between climate change and extreme weather.
In an interview with the video news network Cheddar, EPA chief Andrew Wheeler questioned the extent to which extreme weather patterns are tied to climate change.
While Wheeler reaffirmed his belief in human-caused climate change, he downplayed any connection between global warming and this year’s record-breaking spate of wildfires in Western states, blaming the blazes instead on “forest management.”
Wheeler also skirted the role of climate change in driving more-intense tropical storms. The EPA head said the number of large hurricanes has decreased over the past half-century even while the intensity has increased.
“We need to take a closer look,” he said, “That’s not really within EPA’s purview.”
Similarly, Energy Secretary Dan Brouillette questioned the mainstream scientific consensus on human-caused climate change during a tour through Western Pennsylvania on Monday, NPR’s StateImpact Pennsylvania reports.
“We have a lot to learn about what causes changes in the climate, and we’re not there yet,” Brouillette said in response to a question about how the Trump administration would combat climate change.
When asked whether he believed that human-caused climate change is fueling hotter temperatures, the nation’s top energy officials responded, “No one knows that.”
“Scientists say a lot of things,” Brouillette said after a reporter pointed out the scientific consensus on climate change. “Look, the bottom line is we live here, so we must have some impact. The question is, what is the exact impact that we’re having? And that’s the question that has not been resolved.”
Regulatory rollbacks
The EPA expressed skepticism over link between a common pesticide and brain damage in children.
The agency “diminished studies linking a widely-used pesticide associated with brain damage in children, a move that could enable years of continued use of controversial chlorpyrifos,” the Hill reports.
The EPA argued in a risk assessment “despite several years of study, the science addressing neurodevelopmental effects remains unresolved.”
“Critics see it as the agency laying the groundwork to deny a petition filed by environmental groups years ago to ban the substance in the wake of a reversal under the Trump administration,” the Hill writes.
Household use of chlorpyrifos was mostly banned in 2000, but it is still widely used in agriculture. Under the Obama administration, EPA scientists proposed a ban on the substance, citing studies linking exposure to reduced IQ in children and lower birth weight. Before that ban could go into effect, however, the Trump administration backtracked and said it would reassess the science.
More on climate change
China committed to going carbon neutral by 2060.
“Chinese President Xi Jinping says his country will aim to stop adding to the global warming problem by 2060,” the Associated Press reports. “Xi’s announcement during a speech Tuesday to the U.N. General Assembly is a significant step for the world’s biggest emitter of greenhouse gases.”
“We aim to have CO2 emissions peak before 2030 and achieve carbon neutrality before 2060,” Xi said. “Humankind can no longer afford to ignore the repeated warnings of nature.”
Xi cited the 2015 Paris climate agreement that he helped forge with Obama and said China would institute “vigorous policies and measures” to control greenhouse gas emissions.
“The goal will be a challenge for China, which relies heavily for its electricity on coal, one of the most carbon-intensive fossil fuels,” the AP writes.
China released almost twice as much carbon into the atmosphere as the United States in 2018, although it released less greenhouse gases per capita, according to the Global Carbon Project.
While the European Union aims to be carbon neutral by 2050, the United States has not set any similar deadline and instead is in the process of pulling out of the Paris accord.
