Action to combat climate change could be set back for decades if the Senate confirms President Trump’s nominee to fill the seat held by Ruth Bader Ginsburg on the U.S. Supreme Court, multiple outlets report. A conservative justice could dramatically shift the Court’s balance on issues like overturning the foundation for the EPA’s “endangerment finding,” on which regulatory action to fight climate change is based. If Trump’s nominee is confirmed, he will have replaced two of the five justices who supported the Court’s 2007 decision in Massachusetts v. EPA, which found the EPA has the authority under the Clean Air Act to regulate greenhouse gas emissions, and would effectively make Brett Kavanaugh the Supreme Court’s swing vote on key climate and environmental issues. Kavanaugh, who promised political revenge on Senate Democrats during his 2018 confirmation hearings, called the Clean Air Act a “thin statute” that wasn’t designed to combat climate change in 2016 when he was a judge on the DC Circuit Court of Appeals.
A more conservative court would also likely apply a “skewed and imbalanced” approach to evaluating agency rulemaking, Georgetown Law professor William Buzbee told E&E, in which the Court would impose high standards to agencies’ justifications for taking action to act, and lax standards to weakening regulatory protections. (Axios, Endangerment finding: E&E News; Rollbacks and imbalanced agency review: E&E News, Washington Post $; Commentary: WBUR, Frederick Hewett op-ed)