Even more likely than these changes to climate law, experts said, is that Kennedy’s successor will curtail the Clean Water Act. Specifically, he or she would make it much easier to—and this is not a joke—drain the swamps.
The Clean Water Act, passed over President Nixon’s veto in 1972, allows the government to regulate the conservation and protection of rivers, streams, and any other “waters of the United States.” It also prevents companies from draining wetlands or dumping pollutants in those waters without a permit.
The only problem: The phrase “the waters of the United States” has never been completely defined. This means that it isn’t totally clear which bodies of water—and especially which wetlands, which tend to touch many different rivers and streams—are subject to EPA conservation and pollution control.
When the Supreme Court last examined that problem, in 2006, the justices ruled in an unusual way: 4-1-4. The four liberal justices wanted to preserve broad protections for wetlands; four conservative justices wanted to overrule it.
Kennedy wound up in the middle. He wrote his own opinion, recommending that wetlands be subject to federal regulation only if they had a “significant nexus” with navigable waters. This argument would have preserved much of the federal government’s ability to regulate wetlands.
A few years later, when the Obama administration tried to define “waters of the United States” once and for all, EPA lawyers looked to Kennedy’s opinion. “The Obama administration’s approach to regulating wetlands basically came straight out of Kennedy’s reasoning in that case,” Carlson told me.
It was a savvy bit of rule-writing: Since Kennedy would likely rule on a case about their rule, why not adopt his legal thinking? The only problem: “Obviously, now, Kennedy will be gone,” Lazarus said.
Had he stayed on the court for another year or two, Kennedy likely would have ruled on this very question. In January, the EPA Administrator Scott Pruitt announced that the Trump administration would suspend the Obama administration’s Kennedy-inspired wetlands rule and replace it with a far weaker policy. States and environmental groups promptly sued Pruitt, setting up a legal fight that has a good chance of reaching the high court.
“I think Kennedy would have struck down a serious attempt to repeal federal jurisdiction [over wetlands],” Carlson told me. “Kennedy had a much more sophisticated view of why the environmental protection of wetlands made sense—and not just for the wetlands themselves. Losing him could wreak havoc.”
Finally, Kennedy’s retirement could allow the high court to rule on a broad Constitutional question about whether the government even has the power to make and enforce environmental policy in the first place.
In October, for instance, the Supreme Court will hear arguments in Weyerhaeuser Company v. United States, which could address whether parts of the Endangered Species Act are unconstitutional. Plaintiffs in that case argue that the federal government doesn’t have Constitutional authority to force land owners to protect the habitats of endangered species.