Conservative justices’ willingness to kneecap established precedent threatens major climate and environment policies

  • 05/04/2022 1:30 pm ET
Supreme Court Justice Brett Kavanaugh tests positive for COVID

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The draft Supreme Court opinion striking down decades of established precedent protecting the right to privacy and right to obtain an abortion could have substantial implications for environmental law and climate policy. At issue is not necessarily any specific legal doctrine present in Dobbs v. Jackson Women’s Health Organization, but rather whether any established legal precedent is safe.

“Precedent is no obstacle to the Trump justices, despite what they said in the confirmation hearings,” Vermont Law School Pat Parenteau told E&E News. The draft opinion — which heavily cites 17th century writings from English jurist Sir Matthew Hale’s Pleas of the Crown, in which Hale argued a husband can never be guilty of marital rape because a wife “cannot retract” her “matrimonial consent” — could shed light on the Court’s willingness to undermine established federal authority in West Virginia v. EPA when it releases that decision later this year.

The Court’s ruling upholding EPA’s determination it had authority to regulate greenhouse gasses under the Clean Air Act (often called the “endangerment finding”) in Massachusetts v. EPA and findings in support of broad standing to bring climate cases, also in that case, could also be on the chopping block.

“I wouldn’t be surprised if the court gets rid of all climate litigation by saying there’s no standing,” Robert Percival, director of the environmental law program at UMD, told E&E News. “That’s something this energized conservative wing could do in the future.”

Republished from Nexus Media News, an editorially independent, nonprofit news service covering stories about climate change. It exists to improve public understanding of the climate crisis, shed light on the steps humans can take in response, and highlight the potential opportunities created by a just energy transition.

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