Washington Watch: Kennedy Retirement Scrambles Court
The U.S. Supreme Court has just lost its key swing vote on federal law and the environment in Associate Justice Anthony Kennedy.
When Kennedy announced his retirement last week, it put clean air, clean water, and public health into immediate jeopardy. While Kennedy reliably sided with the conservative business perspective on most matters, he served as the moderately pro-environment swing vote in some of the biggest cases of the past decade.
These included the 2007 determination that the Environmental Protection Agency (EPA) has authority under the Clean Air Act to regulate carbon dioxide and other greenhouse gas emissions. He continued in that role in the more recent decision to uphold the Obama Administration’s Clean Power Plan. Similarly, Kennedy’s opinion was necessary in 2006 to protect the Clean Water Act’s jurisdiction over environmentally critical small streams and wetlands. Without that vote, the Trump Administration’s plan to slash clean water protections is likelier to be upheld by the court.
Kennedy’s retirement clearly raises the stakes for this fall’s elections in two ways. First, on the national level, it underscores the importance of the U.S. Senate’s membership as a potential check on Donald Trump’s nomination of philosophically extremist judges. More broadly, it highlights the critical need to elect environment-friendly leaders to state legislatures as well as Congress. If the highest court becomes a reliable forum for striking down federal environmental protections, the necessity for strong environmental laws at the state level comes into even clearer focus.
