As Donald Trump gets ready to return to the White House, the nation’s highest bench is eyeing high-profile environmental questions that — once the conservative-dominated Supreme Court answers them — may boost the president-elect’s policy agenda.
Over the next six months, the justices will have the opportunity to limit the environmental impacts federal regulators can consider when approving projects, order EPA to get more specific about water permitting requirements and inhibit the power of Congress to delegate power to executive agencies.
“The conservative Supreme Court supermajority has been cutting back on executive power,” said Holly Doremus, a law professor at the University of California, Berkeley, during a recent panel discussion hosted by the Environmental Law Institute.
While the justices in the majority have said they are working to foster a more muscular Congress, the branch of government most directly responsive to voters, Doremus said it’s the courts that may benefit most from the shift.
“It’s cutting back in favor of aggrandizing judicial power,” she said.
The transformation — cemented last year by a set of rulings that weakened the ability of agencies like EPA to defend and enforce their rules — is expected to be largely favorable for the Trump administration, which wants federal regulators to do less.
But cutbacks to executive power could also have some downsides for the Trump team’s efforts to do away with rules it doesn’t like.
Some of the biggest environmental battles the Supreme Court is expected to take up in the coming months and years are still making their way through the lower benches, including litigation over EPA’s latest attempt to curb carbon emissions from power plants and the White House’s authority to set National Environmental Policy Act rules.
Still others are pending petitions that the justices could add to their calendar in the very near future. While the Supreme Court on Monday rejected fossil fuel companies’ latest fight over whether local governments can sue in state courts to hold the oil industry financially accountable for climate impacts, the issue is expected to come before the justices again.
“The public needs to understand that these are not cases principally about climate change,” said Donald Kochan, a law professor at George Mason University. “They are about the separation of powers and the proper division of authority between the federal and state governments.”
Here are some of the key environmental issues on the Supreme Court’s docket between now and early summer:
Reining in NEPA
In the next six months, the justices will have the opportunity to limit the scope of environmental reviews for federally approved projects like pipelines and highways.
During oral arguments in a December case, most members of the court appeared unpersuaded by backers of a Utah oil railway that they could force regulators to exclude from their NEPA analyses impacts that are far removed from projects and that do not fall under the direct purview of the approving agency.
Depending on the outcome and breadth of the ruling, the court’s decision could inhibit the power of federal agencies to consider the cumulative climate impacts of projects they approve.
Changing the rules of rulemaking
In a series of cases that do not directly address environmental issues, the Supreme Court will have the chance to rewrite the rules for how federal agencies craft regulations.
The justices have granted a pair of cases that have the potential to revive the nondelegation doctrine, a legal theory the high court has not used since 1935 and which stops Congress from handing off too much power to executive agencies, such as EPA. The court, however, has given itself an off-ramp for deciding the cases without addressing the nondelegation issue.
In a case argued in December, the court appeared divided on an Administrative Procedure Act dispute over the Biden administration’s denial of flavored vaping products. Courts can use the APA to reverse environmental policy decisions made by federal agencies.
Permitting questions
The Supreme Court will soon provide answers on agencies’ power to set water permitting requirements and license temporary nuclear waste storage sites.
In a case argued in October, the justices will decide whether EPA needs to get more specific about how permit holders must comply with federal Clean Water Act standards. The challenge to the agency comes from ultra-liberal San Francisco, which has drawn support from some unexpected allies, including fossil fuel industry groups.
On March 5, the court will hear arguments on whether the Biden administration properly licensed a private company to store nuclear waste in Texas’ Permian Basin.
Who has the power to sue?
Industry groups and Republican-led states this term handed the Supreme Court the opportunity to weigh in on EPA’s long-standing approval for California to set stronger tailpipe emissions rules than the federal government.
The justices mostly passed on the chance — but said they would decide whether fossil fuel interests and other trade organizations have standing to sue over California’s Clean Air Act waiver. They have yet to schedule arguments in the case.
Standing — or who has the power to bring lawsuits — is a major issue in environmental litigation. If courts take a narrow view of standing, they can effectively shut down environmental lawsuits before they begin.
The Trump factor
Apart from possible emergency orders, the Supreme Court will likely spend the remainder of its current term focused on policy issues that pre-date the start of the incoming Trump administration.
But the president-elect’s arrival in the White House could affect at least one policy battle over whether regional circuit courts have a role in deciding certain Clean Air Act lawsuits. Red states and industry groups want to fight their air and biofuels battles against EPA in regional courts that may be more sympathetic to their claims.
The Biden administration has taken the opposing view, arguing that the cases belong in a federal appeals court in Washington that tends to defer to EPA. While the Supreme Court has granted the cases, it has not yet scheduled arguments, and it’s possible that the Trump administration could reverse some of the EPA decisions under dispute in the litigation.
Reporter Lesley Clark contributed.
