The Energy 202: An extra Trump Supreme Court justice may help cement his environmental rollbacks

Court challenges from blue states and green groups involving many issues — everything from whether Utah canyon land can be drilled, to whether oil companies can be held responsible for killing birds in spills, to  if the federal government can take aggressive action to curb climate change — could be impacted.

And even if Trump is defeated in November, the loss of the late liberal icon on the court may also give Joe Biden trouble in implementing a plan to combat climate change.

“A further tilt of the Court in the direction it is already going ― skeptical of regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind, certainly won’t help the cause of environmental protection,” said Jody Freeman, director of Harvard Law School’s environmental and energy law program.

The death of the 87-year-old justice Friday evening has already kickstarted a tense political fight in Washington as Trump vows to fill the vacancy with a conservative judge “without delay." Senate Democrats are accusing Republicans of hypocrisy for seeking to fill a Supreme Court opening in an election year after refusing to do so after Antonin Scalia's death in 2016.

Among the biggest cases the court could hear is a legal brawl over the Trump administration's repeal of the Clean Power Plan. 

That Barack Obama-era regulation sought to rein in greenhouse gas emissions from coal-fired power plants. But Scott Pruitt, at the time Oklahoma's attorney general, challenged the rule, and the Supreme Court stayed its implementation. 

In 2017, after Trump's election, the Environmental Protection Agency — headed by Pruitt — began work on replacing it with a much less stringent standard. After it was finalized, dozens of Democrat-led states and green groups sued to throw out the rule.

The case could very well end up in the Supreme Court. The U.S. Court of Appeals for the District of Columbia Circuit is set to hear arguments next month.

If the high court rules in favor of the Trump administration, it could hamstring a future president from using existing law to regulate climate-warming pollution from the power sector. 

Michael Gerrard, an environmental law professor at Columbia Law School, said the case could be a vehicle for conservative justices to undermine a landmark decision called Massachusetts v. the Environmental Protection Agency. 

That 2007 ruling compels the agency to regulate carbon dioxide and other pollution contributing to rising global temperatures, and gives states and environmental advocacy groups standing in court to sue over climate change. 

Today, Justice Stephen G. Breyer is the only remaining justice on the court who voted in the majority in that case.

"If Trump is able to name Ginsburg's replacement, that decision becomes a big target for those who want to shut down EPA regulation of greenhouse gases," Gerrard said.

The next Supreme Court justice very well may be a deciding vote in several other high-profile environmental cases.

Another major one involves the scope of the EPA’s authority to protect rivers, streams and other wetlands, which the Trump administration has sought to limit.

The Supreme Court is likely to take up the case because the lower courts have already reached different conclusions in legal challenges, according to Thomas McGarity, an environmental law professor at the University of Texas at Austin.

“The lower courts have played a powerful role in restraining the Trump administration,” McGarity said. “Nearly all of the Trump administration’s rollbacks of Obama administration environmental initiatives are still pending in the lower courts and will therefore be ripe for review in the Supreme Court.”

That’s not all. Other rules primed for Supreme Court review include the EPA’s relaxation of regulations protecting people from breaches of coal ash impoundments, the Interior Department’s reduction of two massive national monuments in Utah and the department's repeal of a rule meant to prevent offshore well blowouts similar to the one leading to the Deepwater Horizon spill.

“Obviously, not all of these cases will make their way to the Supreme Court,” McGarity said, “but several will.”

Even if Biden wins in November, Trump's appointment will still leave the Court with a strong conservative majority.  

The Democratic president nominee has made combatting climate change a major plank of his campaign, and has vowed to reverse much of the Trump administration's rollbacks should he win. But Ginsburg's absence on the high court will make that job more difficult.

“If the people elect a new president and put both houses of Congress in the control of the Democrats, the Supreme Court with six conservatives could provide a hurdle that the agencies under new leadership will have a hard time overcoming,” McGarity said.

A Biden administration, along with Democrats in Congress, will need to craft new environmental laws and regulations extra carefully so as not to run afoul of a more conservative Supreme Court, Freeman said.

“All of this underscores the need to use executive power smartly and strategically in a legally defensible way in tandem with passing new legislation on climate and energy policy," she said.

The loss of Ginsburg will also limit Chief Justice John G. Roberts Jr.’s influence as the court’s swing member.

By occasionally siding with the liberals, the George W. Bush-chosen judge has acted as a leavening influence in the court.

In April, for example, the court ruled that a wastewater treatment plant in Hawaii could not avoid getting a Clean Water Act permit by first pumping pollution into groundwater. With its decision in County of Maui v. Hawaii Wildlife Fund, it rejected the Trump administration’s reading of the law as creating an “obvious loophole." 

Roberts joined Ginsburg and the court's three other liberals in reaching that decision, with Justice Brett M. Kavanaugh writing a concurring opinion.

“If a sixth conservative Justice is confirmed before Trump leaves office, Chief Justice Roberts no longer will be the swing vote and the other five conservatives would be free to embrace more extreme interpretations of the environmental laws," said Robert Percival, professor and director of the environmental law program at the University of Maryland. 

With Ginsburg’s death, the Supreme Court loses a reliable vote in favor of stronger environmental protections.

Ginsburg had a history of seeking to give the government wider sweep to rein in pollution during her 27 years on the bench. 

One of best-known majority opinions was a 2000 decision that makes it easier for people to sue companies for pollution.

“She was clearly the justice who was most sympathetic to environmental concerns of any of the justices on the court,” Percival said. 

That said, expect abortion rights and Roe vs. Wade to dominate the debate over Trump's eventual nominee. 

“Environmental issues may not be a big line of questioning in the process,” said Carl Tobias, a University of Richmond law professor who follows judicial nominations. “However, certain issues like climate change and federal government use of and reliance on scientific data could be.”

Wildfire watch

Coronavirus cases spiked in Oregon as people stayed inside to avoid the fires.

The Federal Emergency Management Agency is warning that "the wildfires that have been raging in California, Oregon and Washington have been ‘complicating the response’ to covid-19, the disease caused by the novel coronavirus,” our colleagues Cleve R. Wootson Jr. and Karin Brulliard report. “As a result, the agency said, the rate of positive coronavirus tests in Oregon rose sharply to 5.6 percent last week, the highest since July and the first upward movement after six weeks of declines.”

The smoke from the fires has kept many people indoors, where they may be more likely to come into close contact with other people and where poor ventilation often makes it easier for the virus to spread. At the same time, the recommendations to stay indoors, evacuation orders, and the closure of outdoor testing sites due to hazardous air have slowed testing in many communities. 

Other factors, such as the possibility of increased transmission during Labor Day festivities, may also have contributed to the spike in cases.

“Still, a dozen days avoiding atmospheric contaminants may provide a prelude for a nation still unclear about what will happen when winter forces most people inside,” Wootson and Brulliard write.

Firefighters are aided by cooler weather in the Northwest even as windy conditions drive at least one California blaze.

“Firefighters in the Pacific Northwest got a helping hand from cooler, damp weather in their battle against an array of deadly wildfires on Saturday, even as uncooperative winds in Southern California spread another landscape-scorching blaze,” Reuters reports.

Intermittent heavy showers on Friday and damp weather helped firefighters battle 29 blazes across Washington and Oregon. More rain is expected over the next week, although a deep layer of vegetation in western forests allows fires to keep feeding even with rainy conditions.

To the south, 19,000 firefighters deployed in California also have made progress in containing 27 major blazes that they have been battling since August, but high winds caused the Bobcat Fire in the San Gabriel Mountains northeast of Los Angeles to spread rapidly. With low humidity, windy weather, and no rain in the forecast, California is likely to continue to face elevated fire danger.

Forests meant to offset greenhouse gas emissions are burning.

“Claudia Herbert, a PhD student at the University of California, Berkeley, who is studying risks to forest carbon offsets, noticed that the Lionshead Fire — which tore through 190,000 acres of forest in Central Oregon and forced a terrifying evacuation of the nearby town of Detroit — appeared to have almost completely engulfed the largest forest dedicated to sequestering carbon dioxide in the state,” Grist reports.

California has a cap-and-trade law ― which limits emissions from major polluters ― lets companies offset some extra emissions by buying carbon credits, often in the form of paying for forest protection and management.

But “if a forest burns down, you didn’t keep carbon out of the atmosphere,” Danny Cullenward, an energy economist at Stanford University, told Grist. “So if you let a refinery pollute more because they bought an offset premised on those trees, you have a problem.”

While California has built some of this uncertainty into its program by creating a buffer pool of extra carbon credits, some scientists worry that insurance may not be enough as climate change makes fires worse.

In the states

Gulf Coast mayors say that hurricane season has gotten worse, but disagree on the reason.

The Gulf Coast has been battered by storm after storm this year, even as Tropical Storm Beta makes its way toward the Texas coastline.

“In the towns that have been slammed, there is an acknowledgment from civic leaders that something has changed for the worse,” Ashley Cusick and Maria Sacchetti report for The Post. “They just don’t agree on what that change is. Is it an anomaly? Is it a shifting climate? Are humans responsible?”

Orange Beach Mayor Tony Kennon (R) called Hurricane Sally, which made landfall near his city last week, a “freak” event and described it as a “a storm that didn’t go the way it was supposed to go.”

In Pensacola, Fla., also hit hard by Hurricane Sally, Mayor Grover Robinson (R) told The Washington Post that he thought warming waters could play a role in an increased number and intensity of storms, but he questioned whether it was human-caused or natural.

Other mayors are vocal about the link between changing storms and global warming. Houston Mayor Sylvester Turner (D), whose city has been repeatedly threatened by storms, chairs a bipartisan group of 500 mayors across the country concerned about climate change.

"Scientists are clear that human-induced climate change is a culprit, with warming waters fueling the storms, giving them more of a chance to rapidly intensify and dump epic amounts of rainfall. Human-caused climate change may also be contributing to a trend toward slower-moving storms at landfall, which worsens inland flooding,” Cusick and Sacchetti write.

New York will start enforcing its plastic bag ban.

The state "will start enforcing its ban on single-use plastic bags starting Oct. 19, following a court ruling on the issue, the state Department of Environmental Conservation announced Friday,” Bloomberg Law reports.

The ban took effect March 1 but was not enforced because of a legal challenge from an association of New York City bodegas, a plastic bag manufacturer and a Bronx grocer.

New Jersey passed legislation aimed at decreasing pollution in minority and low-income communities.

“Gov. Phil Murphy signed into law Friday a measure giving state regulators power to deny development permits to businesses whose operations pollute predominantly Black and other minority communities,” the Associated Press reports.

Murphy, a Democrat, said the bill would put New Jersey at the forefront of the environmental justice movement. He signed it into law alongside state lawmakers and Sen. Cory Booker (D-N.J.), who has introduced similar legislation in Congress.

“The new law in New Jersey — which is the frequent butt of jokes for its factories and pollution and leads the country in the number of Superfund sites — aims to address years of businesses putting incinerators, refineries and other businesses that foul the air and water in cities and towns with mostly Black residents,” the Associated Press writes.

The law will increase scrutiny over ― and give the Department of Environmental Protection the authority to deny ― permits to build power plants, incinerators, treatment sewage plants and other polluting facilities in neighborhoods where more than 35 percent of the population is low income or where 40 percent of the population is minority or has limited English proficiency. 

With the pandemic, natural disasters and tightening budgets, state parks are feeling the squeeze.

Closures in 34 of California’s 340 state parks due to wildfires have brought additional pressure on “public spaces already straining under a surge of pandemic crowds,” National Geographic reports. “In California, and across the country, the combination of natural disaster, pandemic, and economic retrenchment against the threat of recession spell trouble for the future of state parks.”

In many parts of the country, state parks are experiencing record traffic as the pandemic limits indoor activities, but the increase in visitors can also strain resources and hasten the need for maintenance and repairs.

Most of the country’s 10,234 state parks are funded out of state budgets, which are strapped for cash because of the economic crisis linked to the coronavirus pandemic. States can't run a budget deficit and park spending often gets cut in times of austerity, advocates told National Geographic.

The Great American Outdoors Act, a major law to improve public lands passed earlier this year, gives national parks $10 billion over five years, but none of the money is earmarked for state parks. State parks may be able to tap some money from the law’s Land and Waters Conservation Fund, National Geographic writes.