With Anthony Kennedy retiring from the Supreme Court, environmental activists fear a more conservative replacementJustice Anthony Kennedy's retirement from the Supreme Court calls into question future rulings on climate and environmental issues. Photo credit: Chip Somodevilla/Getty Images

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By Dana Drugmand

While the immediate reaction to the retirement of Supreme Court Justice Anthony Kennedy among environmental activists this week fell somewhere between panic and alarm, the implications of what is certain to be a more conservative Supreme Court on the climate liability movement fall into a grayer area.

Without Kennedy, the instant fear is that a right-leaning court may overturn Massachusetts v. EPA, the landmark 207 ruling that greenhouse gases are a pollutant that the Environmental Protection Agency is obliged to regulate. Kennedy, the swing justice in countless 5-4 rulings in his 31 years on the Supreme Court, was the deciding vote in that case as well.

“With the departure of Justice Kennedy, this is no time to mince words: We are in for the fight of our lives,” Earthjustice president Trip Van Noppen said in a statement. “Trump intends to fill this Supreme Court vacancy with someone who will put corporations, the wealthy, and the powerful above the rest of us. We must do everything in our power to resist this.”

Legal experts, however, point out that a repeal of Mass. v. EPA could give activists a stronger avenue to pursue liability cases against the fossil fuel industry. That’s because once the EPA was responsible for regulating greenhouse gases, federal courts said it displaced common law claims that oil companies were creating a public nuisance.

“If the Clean Air Act is no longer deemed to regulate GHG pollutants, then you have to expect federal liability tort claims to come back into play,” said Abigail Dillen, vice president of litigation for climate and energy at Earthjustice.

Currently there are nearly a dozen climate liability lawsuits filed by local governments against fossil fuel companies demanding compensatory damages for climate impacts. The companies want these cases in federal court, where they can argue that the Clean Air Act displaces federal common law claims regarding global warming, as the Supreme Court ruled in the 2011 case, AEP v. Connecticut.

“If Mass v. EPA is overruled, that would arguably open up power plants and the companies that own them to claims under federal public nuisance,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University.

“I have no doubt that if the court rules that carbon pollution is not subject to regulation under the Clean Air Act, there will be attempts to revive federal common law,” said Pat Parenteau, environmental law professor at Vermont Law School. “But then you have to ask the question, how will those attempts fare when they finally get to the new Supreme Court?”

There is also a question as to how a more conservative Supreme Court may treat the landmark youth climate lawsuit Juliana v. United States. In that case, currently set for trial in U.S. District Court in Eugene, Ore., on Oct. 29, 21 youth plaintiffs are suing the federal government for violating their Constitutional rights to life, liberty and property by promoting an energy policy that threatens a livable climate.

“The Juliana case is, at its heart, a conservative case,” said Julia Olson, executive director of the nonprofit Our Children’s Trust and the lead counsel for the young plaintiffs. “It is a fundamental rights case about protecting liberties that goes back to the very roots of our founding documents and our nation, and justices across the spectrum will understand and see the importance of this case.”

Olson said while she had envisioned Justice Kennedy would be the one writing the opinion, she remains optimistic. “I think there are very few justices on that bench currently who would rule against this case,” she said

Parenteau said he is more skeptical that the Supreme Court would rule favorably for holding the government accountable for the future climate.

“Nevertheless it’s an important case, an important trial,” he said. “A lot of good information is going to be made public. The trial is going to happen on the eve of the midterm elections. I hope that registers.”

The Fate of Mass. v. EPA

Experts are not all convinced a new court will overturn the ruling making the EPA responsible for regulating greenhouse gases.

Ann Carlson, law professor and co-director of the Emmett Institute on Climate Change and the Environment at UCLA School of Law, wrote in a recent blog post. that she believes either it will be overturned or severely restricted.

“Justice Scalia had already begun to lay the groundwork for curtailing EPA’s power to regulate greenhouse gases in a subsequent case, Utility Air Regulatory Group v. EPA,” she wrote. “With a new Justice on the Court who opposes Mass v. EPA, it isn’t hard to imagine the Court imposing significant limitations on EPA’s ability to regulate greenhouse gases…Even more alarming, it’s worth noting that in the UARG case, two current Justices, Alito and Thomas, would have overturned Mass v. EPA.”   

Others, however, disagreed.

“It is not clear to me that Massachusetts is at risk,” Burger said.

“In Utility Air Regulatory Group v. EPA, Justice Scalia wrote an opinion, joined by Justice Roberts, that plainly accepted that Mass v. EPA was binding, and that the Clean Air Act covers GHG emissions from at least some sources,” Burger said. “Justice Alito wrote a concurrence stating that Mass v. EPA was wrongly decided. Roberts did not join that concurrence. So it may well be that Roberts is not inclined to overrule precedent less than a decade old, particularly on an issue of statutory interpretation.”

For now, however, with the ruling still in place, climate liability plaintiffs are working to keep most of their claims in state court, avoiding the debate over federal common law altogether.