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E&E News: How a Trump Appointment Could Shape Energy Policy

Posted by Niina H. Farah and Lesley Clark on Sep 21, 2020

E&E News covered the impact of Trump's Supreme Court appointment on energy law given the recent passing of Ruth Bader Ginsburg, quoting AEE's Jeff Dennis. Read excerpts below and the entire E&E News piece here (sub. req.). 

A new Supreme Court appointment at the twilight of President Trump's first term could shift how justices respond to regulatory challenges and dull Chief Justice John Roberts' swing vote in cases with important energy and environmental consequences. And if Trump loses in November, it could complicate Biden administration efforts to address climate change and make it tougher to roll back Trump's deregulatory agenda.

Court watchers expect Trump's nominee to replace Justice Ruth Bader Ginsburg, who died Friday at age 87, to fall ideologically to Roberts' right. That could alter how the court handles administrative law, which governs federal agency actions and can be a key component of regulatory cases...

For energy and environmental cases, decisions based in administrative law can translate into how federal agencies can interpret their own authority under federal statute to set pollution controls. The shift in a court could make it more likely that Trump's deregulatory actions — which have been sweeping across several agencies — would be upheld.

Trump is likely to name a replacement for Ginsburg as soon as this week. He and Senate Majority Leader Mitch McConnell (R-Ky.) have pledged to push the confirmation as fast as possible, in the event Republicans lose the White House or their majority in the Senate...

One of the rollbacks potentially affected by a change in the court is environmental groups' efforts to undo the Affordable Clean Energy rule — the Trump administration's replacement for the Obama-era Clean Power Plan — which takes a much narrower view of EPA's authority to regulate greenhouse gas emissions under the Clean Air Act. The case will be heard before the U.S. Court of Appeals for the District of Columbia Circuit on Oct. 8 and could be appealed to the high court.

Jeff Dennis, general counsel and managing director at Advanced Energy Economy, said another Trump-appointed justice could uphold EPA's "extremely narrow" reading of its own authority to regulate emissions, compared with a more liberal pick.

"Justice Ginsburg was instrumental in the Court's decisions finding that the Clean Air Act obligates EPA to regulate such emissions, and Justice Ginsburg or another justice in her mold would be likely to be very skeptical of EPA's current attempts to narrow the statute's reach for future administrations, and to eviscerate the role Congress carved out for states like California to set higher emissions standards," Dennis said in an email...

Read the entire E&E News piece here (sub. req.). 

Topics: AEE In The News