INSIDE EPA: Kennedy Retirement Increases Odds Of High Court Backing EPA Rollbacks

Justice Anthony Kennedy’s decision to retire from the Supreme Court gives President Donald Trump the chance to nominate a replacement who could secure a strong 5-4 conservative majority of justices, increasing the odds that the court will uphold Trump’s roll-back of Obama EPA regulations and new policies that weaken agency rules.

In particular, Kennedy’s retirement could have a major impact on expected litigation over EPA’s pending rule to replace the Obama-era Clean Water Act (CWA) jurisdiction policy, which was based on a test for jurisdiction Kennedy crafted in a 4-4-1 high court ruling from 2006. EPA Administrator Scott Pruitt has said he wants to repeal that rule and replace it, and is expected to rely on the late Justice Antonin Scalia’s narrower CWA test from the same ruling.

If Trump succeeds in replacing Kennedy with a replacement who gives the court a more reliable 5-4 conservative majority, it could also give the justices an opening to undo or pare back prior environmental rulings including its landmark opinion that EPA has authority under the Clean Air Act to regulate greenhouse gases, and potentially to craft new rulings that either limit groups’ legal standing to sue federal agencies or otherwise restrict environmental cases.

Inside EPA: Kennedy Retirement Increases Odds Of High Court Backing EPA Rollbacks