What a Changing Court Could Mean for Our Wildlife, Waters, and Climate

The nation’s highest court has passed down many landmark decisions over the last few decades regarding a wide array of environmental topics—from climate change to wetlands to tailpipe emissions. Here are just a few of the major issues the Supreme Court could take on in the coming months, with its new 6-3 conservative majority.

Confronting Climate Change

The Supreme Court has a lot to say about whether the clear science behind climate change should inform how we implement laws designed to protect us from the threats of increasing carbon pollution. One of these decisions is Massachusetts v. EPA, a 5-4 holding where Justice Ginsburg was a deciding vote for the liberal majority. The 2007 case held that the Environmental Protection Agency (EPA) can and must regulate greenhouse gases in its vehicle tailpipe emission standards under the Clean Air Act. The impacts of this decision are still being worked out and it may come back to the Supreme Court.

A 6-3 conservative majority also poses a risk of diminishing the power of the National Environmental Policy Act—the nation’s environmental reporting statute—in addressing climate change. This law requires that agencies take a “hard look” at environmental impacts before completing any major federal action. The Trump Administration has tried to eliminate the need for agencies to look at the climate change implications of their actions. The new conservative Court may uphold these rollbacks.

Additionally, one of the special features of the Clean Air Act allows California to set fuel efficiency standards—which are higher than the national standard—for its own residents. Higher fuel efficiency standards are key to reducing carbon pollution from the transportation sector, which is now the country’s largest source of emissions. Once California acts to set higher limits, other states may then choose to adopt those tougher limits. The Trump Administration is attempting to revoke California’s power to do so. If the Court upholds that action, the robust fuel standards of California, and the 13 states that have adopted the same standard, will be lost.

Impacts Beyond Climate Change

The potential impact goes well beyond climate change. For instance, in the early 2000s, the Court issued two key rulings that created confusion concerning the what waters are protected from pollution and destruction by the federal Clean Water Act.  This resulted in a far narrower interpretation of what waters are covered by the Clean Water Act than were historically protected, leaving important wetlands and streams unprotected.

In the 2006 Rapanos v. United States decision, the four-justice plurality (combined with a concurrence from lone Justice Kennedy) held that the definition of “waters of the United States” within the Clean Water Act should be based on a scientific understanding of how smaller waters like seasonal streams and wetlands impact larger, downstream waters. The Rapanos ruling paved the way for President Obama’s science-based Clean Water Rule, which clarified protections for small, upper reach streams and many important wetlands that support aquatic ecosystems. This year, the administration promulgated a new rule that revokes the Clean Water Rule and is based upon the very restrictive and non-scientific view of jurisdiction waters espoused by the minority in Rapanos. Should the court revisit the Rapanos decision, it could tie EPA’s hand from protecting half of America’s wetlands and most of its stream miles – waters that provide drinking water to millions of Americans and serve as critical fish and wildlife habitat.

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