UCLA law school profressor Ann Carlson suggests that the departure of Anthony Kennedy from the Supreme Court should profoundly trouble climate hawks in particular:
Justice Kennedy provided pivotal votes in several cases that were environmentally protective. Most importantly, he was the crucial fifth vote in Massachusetts v. EPA, the landmark climate change case. In Mass v. EPA, the Court held 1) that states had standing to sue the federal government for failure to regulate greenhouse gases and 2) that greenhouse gases are pollutants under the Clean Air Act and EPA has a statutory duty to determine whether and how to regulate them. The justices in the majority in Mass v. EPA also embraced the science of climate change.
A more conservative court could overturn Mass v. EPA or, perhaps more likely, significantly curtail its reach. Justice Scalia had already begun to lay the ground work for curtailing EPA’s power to regulate greenhouse gases in a subsequent case, Utility Air Regulatory Group v. EPA. Even though the Court largely upheld greenhouse gas emissions regulations for so-called “new sources” of greenhouse gases, the UARG Court also held that EPA had overreached its authority in regulating smaller sources that had not previously been regulated. 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. If a Democrat were elected President in 2020 and attempted to reinstate something like the Clean Power Plan, for example, we could well see the Supreme Court strike such a rule down. Even more alarming, it’s worth noting that in the UARG case, two current Justices, Alito and Thomas, would have overturned Mass v. EPA. Add Justice Gorsuch and the new Justice, persuade Justice Roberts to join in, and Mass v. EPA is overturned.
Yes, Kennedy‘s vote in Massachusetts v. EPA was important, but it was overshadowed by two horrible votes that came before and after: Bush v. Gore in 2000 and Citizens United v. FEC in 2010, two decisions that all but destroyed any chance for a livable future for our children.
Future generations will damn Kennedy’s name for his treachery in December 2000, when he joined Clarence Thomas, Sandra Day O’Connor, Antonin Scalia and William Rehnquist in stealing the White House from Al Gore and installing George W. Bush as the 43rd President. Had Gore not been robbed of the Presidency, he would have led this country and this world on a bold and revolutionary effort to combat human-caused climate change, using the White House as a bully pulpit to generate public demand for legislative action to curb carbon pollution. Perhaps Gore’s White House leadership would have been the key to passing the McCain-Lieberman climate bill in the early-2000s. In addition, it’s impossible to envision a post-9/11 Gore being nudged by neocons to invade Iraq in a war for oil.
Kennedy abused Mother Earth a second time a decade later, joining Thomas, Scalia, Samuel Alito and Chief Justice John Roberts in prostituting our democracy via the Citizens United ruling. As Rhode Island Sen. Sheldon Whitehouse has observed, prior to Kennedy’s vicious vote, a number of Republicans were willing to come to the table on climate; after Citizens United came down, the newly empowered fossil fuel industry killed off climate consciousness among Republicans, and denialism quickly became official GOP orthodoxy. (If the proposed climate legislation from former Senators Trent Lott and John Breaux fails to become reality, Lott and Breaux should blame Kennedy and his right-wing SCOTUS colleagues for empowering the interests opposed to such legislation.)
This is not to argue that Kennedy embodied the sort of malevolence that Scalia was known for regarding the existential threat of carbon pollution. However, history will show that when our climate needed a champion, Kennedy largely failed to answer the call—and for that failure, future generations will judge him unfavorably.