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The Environmental Consequences of Justice Kennedy’s Retirement

Anthony Kennedy swears in Trump Supreme Court pick Neil Gorsuch. Shealah Craighead / The White House

When Supreme Court Justice Anthony Kennedy announced his retirement Wednesday, the court lost a key swing vote on environmental issues, The Atlantic reported.

Whoever President Donald Trump nominates to replace the 81-year-old Reagan-appointee, who The New York Times called "an equal opportunity disappointer," according to Grist, is likely to be more conservative and could determine the fate of U.S. climate policy, the Endangered Species Act and Environmental Protection Agency (EPA) head Scott Pruitt's attempts to roll back Obama-era clean water regulations, legal experts told The Atlantic.


"He's been on the court just over 30 years, and he's been in the majority in every single environmental case but one. You don't win without Kennedy," Harvard law professor Richard Lazarus, who has argued 14 Supreme Court cases, told The Atlantic.

"I think more than the other more conservative justices, Kennedy seemed open to embracing the idea that tough national laws were necessary to address some types of problems," he said.

In one key case, Kennedy broke a tie and gave the EPA authority to fight climate change. In Massachusetts v. EPA, he sided with the majority in a 5-4 ruling that the EPA could regulate greenhouse gases under the Clean Air Act, even though the act does not name them specifically, if its scientists determined they posed a public health risk, according to Time.

The decision provided the legal groundwork for many of former President Barack Obama's climate policies, but now experts are concerned a conservative court could reverse that ruling and leave the federal government without the legal means to limit greenhouse gas emissions.

"We're not going to get another Kennedy who's going to play that moderating role," Stanford University environmental law professor Deborah Sivas told Time. "Since it's a matter of statutory interpretation instead of bedrock constitutional principles I could see folks try to set up a new challenge."

Lazarus told The Atlantic that he did not think Massachusetts v. EPA was in danger, but he was concerned a conservative court would rule against plaintiffs seeking to challenge the federal government over a lack of climate action. In Juliana v. United States, for example, 21 young people are suing the government for creating an energy system that depends on climate-altering fossil fuels.

Kennedy's retirement also poses an immediate threat to the future of the Endangered Species Act. In October, the court will hear Weyerhaeuser Company v. United States, in which plaintiffs argue it is unconstitutional for the federal government to force private landowners to protect the habitat of endangered species on their property.

"That is a hotly contentious issue in the Supreme Court, and it's a case that one would expect going in would have a good chance of coming out 5-4," Lazarus told The Atlantic. "So replacing Kennedy with anybody else makes a big difference."

Finally, his replacement might mean Pruitt will ultimately be successful in his bid to suspend Obama's Waters of the United States (WOTUS), which determined which waters could be protected under the Clean Water Act.

WOTUS was largely based on Kennedy's ruling in 2006, in which the Supreme Court set out to determine if wetlands qualified for protections under the Clean Water Act that protects rivers, streams and the nebulously defined "waters of the United States." The four liberal judges ruled in favor of existing protections, while four of the conservatives ruled to strip them entirely. Kennedy wrote his own opinion saying wetlands could be protected if they shared a "significant nexus" with streams and rivers.

"The Obama administration's approach to regulating wetlands basically came straight out of Kennedy's reasoning in that case," University of California Los Angeles law professor Ann Carlson told The Atlantic.

That was a smart legal move when Kennedy would have been the deciding vote on any challenges. But if the case brought by states and environmental groups challenging Pruitt's suspension of Obama's WOTUS rule does come before the Supreme Court, Kennedy will no longer be among the judges deciding it.

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A second U.S. jury has ruled that Roundup causes cancer.

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Judge Vince Chhabria has split Hardeman's trial into two phases. The first, decided Tuesday, focused exclusively on whether or not Roundup use caused the plaintiff's cancer. The second, to begin Wednesday, will assess if Bayer is liable for damages.

"We are disappointed with the jury's initial decision, but we continue to believe firmly that the science confirms glyphosate-based herbicides do not cause cancer," Bayer spokesman Dan Childs said in a statement reported by The Guardian. "We are confident the evidence in phase two will show that Monsanto's conduct has been appropriate and the company should not be liable for Mr. Hardeman's cancer."

Some legal experts said that Chhabria's decision to split the trial was beneficial to Bayer, Reuters reported. The company had complained that the jury in Johnson's case had been distracted by the lawyers' claims that Monsanto had sought to mislead scientists and the public about Roundup's safety.

However, a remark made by Chhabria during the trial and reported by The Guardian was blatantly critical of the company.

"Although the evidence that Roundup causes cancer is quite equivocal, there is strong evidence from which a jury could conclude that Monsanto does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue," he said.

Many regulatory bodies, including the U.S. Environmental Protection Agency, have ruled that glyphosate is safe for humans, but the World Health Organization's International Agency for Research on Cancer found it was "probably carcinogenic to humans" in 2015. A university study earlier this year found that glyphosate use increased cancer risk by as much as 41 percent.

Hardeman's lawyers Jennifer Moore and Aimee Wagstaff said they would now reveal Monsanto's efforts to mislead the public about the safety of its product.

"Now we can focus on the evidence that Monsanto has not taken a responsible, objective approach to the safety of Roundup," they wrote in a statement reported by The Guardian.

Hardeman's case is considered a "bellwether" trial for the more than 760 glyphosate cases Chhabria is hearing. In total, there are around 11,200 such lawsuits pending in the U.S., according to Reuters.

University of Richmond law professor Carl Tobias told Reuters that Tuesday's decision showed that the verdict in Johnson's case was not "an aberration," and could possibly predict how future juries in the thousands of pending cases would respond.


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