He’s spent less than two weeks in office but President Donald Trump is already making moves to dismantle environmental regulations that stand in the way of industry interests. With an open seat on the Supreme Court, aging Supreme Court justices, and 114 judicial vacancies, securing the appointment of conservative justices and federal judges during his term is an essential step in achieving his ambitions.
“I am looking to appoint judges very much in the mold of Justice [Antonin] Scalia,” President Trump said while on the campaign trail.
When Justice Scalia passed away last year, he left a wake of decisions that will affect environmental litigation for years to come. He penned majority opinions that limited the ability for environmental groups to bring lawsuits, protected property rights over public interests, restricted deference to environmental agencies for statutory interpretation, and most recently declared an EPA mercury regulation invalid because the agency failed to consider the regulation’s costs. It’s been nearly a year now since Justice Scalia passed on February 13, 2016. When then President Barack Obama nominated Merrick Garland to fill the vacancy, Republicans blocked a vote and hearings, leaving the door open for his successor to nominate a new Justice.
On Tuesday, in the White House East Room, the 45th president announced his nomination of Neil Gorsuch to fill the vacancy left by Scalia, a choice that would restore a conservative majority to the Court.
The Clean Power Plan may be the first environmental regulation to hit the president’s chopping block. The regulation requires power plants (which are the largest source of global warming emissions) to curb emissions by 32 percent by the year 2030. It has been touted by environmental groups as one of the most important regulations aimed at reducing carbon pollution.
In an unprecedented move last year, Justice Scalia joined a majority of the justices in a 5-4 decision to block the Clean Power Plan until it could be reviewed by the Court. A legal challenge to the rule is currently sitting with the United States Court of Appeals for the District of Columbia Circuit and could be decided any day now.
As the Clean Power Plan awaits further adjudication, it is imperiled by the Trump Administration. It is possible that the EPA – under new leadership – will choose not to defend the Clean Power Plan in court. (Remember, Scott Pruitt – who has been tapped to lead the agency – joined a coalition of state attorneys general in a lawsuit against the regulation.)
In a letter to President Trump, a number of states have vowed to take President Trump to court to defend the Clean Power Plan, with or without the EPA’s support.
“Be assured that we would vigorously oppose in court any attempt to remand the Clean Power Plan back to EPA so late in the litigation, and prior to a decision from the Court on the merits of the claims,” the letter said.
The process of undoing the Clean Power Plan by either executive action or new legislation will take time, so the issue may reach the Supreme Court before it is picked apart. If President Trump’s new Supreme Court nominee is confirmed before the regulation is reviewed, the Clean Power Plan could meet its demise.
At this point, we can only speculate as to how Gorsuch would rule on the Clean Power Plan if it came under his review. In 2015, he issued a ruling in the U.S. Court of Appeals for the Tenth Circuit that affirmed Colorado’s renewable energy law. The regulation required utility companies to obtain 30 percent of the power they sold to consumers from renewable resources. This decision provides some insight that climate change legislation would survive legal challenges, but the similarities to his predecessor on other issues are concerning for environmental advocates. For example, deference to administrative agencies under the Chevron doctrine is a 30-year-old legal tenet that will likely be attacked while Gorsuch serves on the Court. The doctrine has helped agencies such as the EPA successfully defend environmental regulations in court. Like Justice Scalia, Gorsuch has expressed concern over the validity of the doctrine.
“When the political branches disagree with a judicial interpretation of existing law, the Constitution prescribes the appropriate remedial process,” he wrote.
“I respect … the fact that in our legal order it is for Congress and not the courts to write new laws,” Gorsuch said in the White House East Room Tuesday.
“It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.”
The future of the Clean Power Plan and other environmental protections will be altered during Trump’s presidency in and out of court. But unlike a presidential term, a Supreme Court appointment is for life. Whoever is appointed to the Court will have the chance to change environmental litigation for an entire generation.
The shortest any Supreme Court Justice nomination has been left pending was 19 days, for Justice John Paul Stevens. So while President Trump’s nomination simply lays the groundwork for shaping the United States Supreme Court, the coming weeks and possibly months will determine a major plot point in America’s approach to environmental issues that reach the Supreme Court in the future.
