The retirement of Justice Anthony Kennedy this past July is arguably a pivotal point for U.S. Supreme Court decisions on environmental law. Justice Kennedy was a crucial swing vote on a variety of environmental issues still relevant today, particularly cases involving regulation of greenhouse gas emissions and the reach of the Clean Water Act. His vote in the 5-4 decision in Massachusetts v. EPA upheld EPA’s power to limit greenhouse gas emissions. In Rapanos v. United States, Justice Kennedy’s controlling opinion held that a wetland falls within the scope of the Clean Water Act’s jurisdiction if it bears a “significant nexus” to a traditional navigable waterway.
The Court began its new session on October 1, with an oral argument focused on the reach of the Endangered Species Act and potential habitat for the dusky gopher frog on privately owned land in Louisiana. The Court’s decision in this case is highly anticipated, and will have important implications on protection of endangered species. New Justice Brett Kavanaugh did not participate, raising interesting questions about whether and how the eight-member Court might proceed.
On July 18, ELI held an expert panel discussing the impact of Justice Kennedy’s retirement, which is the featured Dialogue in the October issue of ELR’s News and Analysis. The panel included John C. Cruden, former Assistant Attorney General for the Environment and Natural Resources Division; John Elwood, Appellate Partner at Vinson & Elkins LLP; and Richard Lazarus, the Howard and Katherine Aibel Professor of Law at Harvard University Law School. The panel held a forward-looking discussion on Justice Kennedy’s influence on environmental law, the impacts of his departure on environmental cases, and what then-nominee Kavanaugh’s confirmation to the Supreme Court could mean for future decisions.
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