Justice Kennedy’s Mixed Environmental Legacy Turns Tragic

Nicholas Stump 25th September 2018

Supreme Court Justice Anthony Kennedy, a 1988 Reagan appointee, will leave behind a mixed environmental law legacy. Best known to the public as a crucial swing vote on issues regarding same-sex marriage and abortion rights, Kennedy’s influence on environmental law was no less impactful, as he sided both for and against ecological and public health interests in numerous significant decisions and was almost always in the majority. But on the whole, Kennedy’s retirement will negatively impact the Supreme Court’s environmental jurisprudence; this is because a Trump-nominated successor—whether Brett Kavanaugh or otherwise—will create a five-seat conservative majority hostile to issues of environmental protection and climate action.

 Justice Kennedy cast the determinative vote on several landmark environmental decisions during his three decades on the Court. Most important was the 5-4 Massachusetts v. EPA decision handed down in 2007, where several U.S. states and cities brought an action against the Environmental Protection Agency (EPA) to force it to regulate greenhouse gas emissions (e.g., carbon dioxide) as a pollutant under the Clean Air Act (CAA). Kennedy joined the liberal majority in establishing two important precedents—one that such emissions constitute CAA pollutants subject to EPA regulation and the second that states can sue the EPA for corresponding regulatory failures. Significantly, the Obama administration relied upon Massachusetts v. EPA in formulating its core climate policies.

Kennedy also wrote an important concurring opinion in the 2006 decision Rapanos v. United States involving a Clean Water Act (CWA) issue. Rapanos presented the question whether CWA pollution limitations applied not just to large bodies of water, but also to more marginal wetlands and streams. The other four conservative justices argued for a limited CWA scope that did not encompass marginal waters while the four liberal justices argued for a broad CWA scope. Kennedy, however, adopted a middle road approach; specifically he proffered an intricate test for determining implicated CWA waters focusing upon those of a “significant nexus” of navigable rivers and seas. Kennedy’s concurrence proved influential—and the Obama administration relied upon it extensively in its seminal Waters of the United States rule in 2015.

Kennedy cast determinative votes with the other conservative justices as well. For instance, in the 2014 decision Utility Air Regulatory Group v. EPA, Kennedy joined the conservative majority in holding that, under the CAA, the EPA can limit greenhouse gas emissions from large stationary sources of pollution (e.g., power plants), but not from smaller stationary sources such as schools or businesses.

Kennedy’s environmental record was thus, at best, an uneven one. He was receptive to arguments requiring some governmental limitations on environmental harms, which he likely understood was in keeping with broad U.S. public opinion. But Kennedy also mistrusted a more expansive conception of federal regulatory authority that would infringe upon private property rights. Kennedy was, after all, a conservative justice, a fact that (over-emphasized) characterizations of Kennedy as a measured swing vote often belied. Kennedy was a centrist only in the relative terms of contemporary U.S. jurisprudence: It has been succinctly observed that “Anthony Kennedy was no moderate.”

Kennedy’s most lasting environmental legacy will not emanate from his jurisprudence per se—but rather from his decision to retire under the extraordinary circumstances of the Trump administration. Kennedy’s environmental record, while hardly progressive, will nevertheless be upended by any Trump nominee, because an all-but-certain deeply conservative addition to the Court will create a firm five-seat majority. In fact, Brett Kavanaugh, Trump’s current nominee, has “made a name for himself as an influential conservative critic of sweeping environmental regulations” at the D.C. Circuit.

This conservative majority will facilitate Trump’s historic roll back of environmental law. For instance, as noted above, the Obama administration relied upon Massachusetts v. EPA in enacting its core climate policies, including the Clean Power Plan (CPP), which was designed to reduce coal power plant emissions—and which was the prime regulatory mechanism through which the United States was to comply with the Paris Agreement. However, Trump withdrew the United States from the Paris Agreement and has moved to dismantle the CPP. States and environmental organizations intended to challenge any watered-down replacement of the CPP in federal court—but a five-seat conservative majority would be wholly unreceptive to such arguments. Also as noted above, the Obama administration relied upon Kennedy’s Rapanos guidance in issuing its Waters of the United States rule, but Trump has directed the EPA to promulgate a replacement rule narrowing CWA pollutant limitations. The five-seat majority would similarly favor this rollback.

Justice Kennedy’s environmental legacy, therefore, will be that of facilitating Supreme Court recalcitrance on environmental issues—at the very time in which the global ecological crisis has intensified as a genuine “civilizational issue.” That Kennedy has embraced such a dire legacy—given his partial receptiveness to environmental concerns while on the Court—is indeed a tragedy that will imperil us all.

This post is part of a series on Justice Kennedy’s human rights legacy. You can see the introductory page here. Posts in this series will appear over the next couple of weeks.

Author profile

Nicholas F. Stump is a Faculty Member with the George R. Farmer Jr. Library at the WVU College of Law. He is an Associate with the Oxford Human Rights Hub. His current work is informed by critical environmental law, Appalachian studies, and law and social movements studies. He teaches in the legal research curriculum with an emphasis on administrative law and energy and environmental law.

Citations

Nicholas F. Stump, ‘Justice Kennedy’s Mixed Environmental Legacy Turns Tragic’ (OxHRH Blog, 25 September 2018) <http://ohrh.law.ox.ac.uk/justice-kennedys-mixed-environmental-legacy-turns-tragic> [date of access].

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