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— If confirmed, President Donald Trump’s selection of Amy Coney Barrett for the Supreme Court could push the high court to open up landmark legal precedents about climate change.
— A federal judge’s ruling to block William Perry Pendley’s role atop the Bureau of Land Management may have wide-ranging implications for the agency’s actions.
— Documents obtained by POLITICO detail how the country’s largest natural gas utility may have cloaked its advocacy by recruiting local politicians and minority groups to promote fossil fuels.
WELCOME TO MONDAY! I’m your host, Kelsey Tamborrino. The trivia winner is Holland and Knight’s Beth Viola, who knew the front of the Supreme Court building has the motto “equal justice under law.” For today: What is the brightest planet in the Solar System? Send your tips, energy gossip and comments to [email protected].
Check out the POLITICO Energy podcast — all the energy and environmental politics and policy news you need to start your day, in just five minutes. Listen and subscribe for free here. On today’s episode: What Amy Coney Barrett could mean for the environment.
WHAT BARRETT MEANS FOR CLIMATE LAW: Trump’s nomination of Amy Coney Barrett, a Circuit Court judge with strong support from conservatives, could spell trouble for landmark judicial holdings about climate change, Pro’s Alex Guillén reports.
Barrett is considered an “originalist” in the mold of late Justice Antonin Scalia, for whom she clerked in the late 1990s. She has long advocated for the Supreme Court to show more flexibility in overturning past precedents. That could apply to the high court’s 2007 ruling in Massachusetts v. EPA that said the Clean Air Act gave EPA the authority to regulate greenhouse gases, Alex reports.
At least two justices still on the court have signaled interest in revisiting the climate ruling — Justices Samuel Alito and Clarence Thomas — and other members of the court’s conservative wing may also be sympathetic to arguments to reconsider the decision.
With a more conservative judge such as Barrett, the court could weaken Massachusetts without overturning it, said Jody Freeman, director of Harvard Law School’s Environmental and Energy Law Program and a former Obama White House adviser. That could include “interpreting provisions to require additional cost benefit analysis, taking a limited approach to the ‘co-benefits’ that come with climate rules, and otherwise making it harder for the agency to regulate greenhouse gases and other pollution,” she said in an email.
No case has yet advanced far enough for a court to take a position on the scope of EPA’s authority, but if Trump is reelected, that could provide such an opening.
A rightward shift of the Supreme Court with the installation of Barrett could also imperil much of the agenda of a potential Biden administration or a Democratic Congress, making it easier for the courts to block initiatives such as a Green New Deal, Alex and Paul Demko report.
There are “two big gorillas in the room” when it comes to the legal arguments the Supreme Court could use to rein in the executive branch, said Misha Tseytlin, a partner at Troutman Pepper and the former solicitor general of Wisconsin. The first, known as the “nondelegation doctrine,” allows judges to strike down laws that are too vague about the powers they grant to the executive branch. As recently as 2001, Scalia rejected an attempt to use the doctrine to strike down EPA air pollution regulations. But two decades later, the Supreme Court’s conservative wing appears to be champing at the bit to go the other direction, Alex and Paul report.
What’s next? The Senate Judiciary Committee expects to hold a confirmation hearing for Barrett the week of Oct. 12.
PENDLEY IN PERIL: A federal judge in Montana blocked William Perry Pendley from serving as the de facto head of the Bureau of Land Management on Friday in a ruling that could see the decisions taken under Pendley reversed, your host reports for Pros.
In the order, Chief Judge Brian Morris of the U.S. District Court in Montana — an Obama appointee who has been a persistent thorn in the Trump administration’s side — ruled Pendley has unlawfully served as the acting BLM director for 424 days, and he enjoined Pendley from continuing to exercise the authority of BLM director — which Pendley has done through a series of secretarial and succession orders for months.
Trump’s opponent Joe Biden latched onto the ruling, calling it “a victory for everyone who values our public lands over those who want to exploit them for profit.”
The implications: Morris called on the Interior Department and the office of Montana Gov. Steve Bullock, which brought the lawsuit, to detail within 10 days which of Pendley’s acts should be “set aside,” beyond two resource management plans in Montana that Bullock’s lawyers pointed to in the suit. Under the order, Morris wrote that the court “recognizes that any ‘function or duty’ of the BLM Director that has been performed by Pendley would have no force and effect and must be set aside as arbitrary and capricious” — a determination that could ultimately imperil actions Pendley’s taken since July 2019 when he began as de facto director.
Interior said it would “immediately” appeal the decision, which it called “outrageous” and “well outside the bounds of the law.” But in the meantime, the department said it won’t operate in contradiction to the order.
RFS RULE IN COURT, CHAPTER 2019: The D.C. Circuit on Friday hosted the annual legal rite: a challenge to EPA’s blending mandate under the Renewable Fuel Standard, with this round focusing on the rule governing 2019 requirements. Biofuel producers argued that rule should have added additional ethanol volumes to account for the exemptions EPA granted small refiners facing economic hardship, while refiners contended that EPA’s mandate came in too high. Chief Judge Sri Srinivasan and Judges Judith Rogers and Merrick Garland asked refiners few questions of any kind, but they did press the biofuel producers and the government on whether EPA’s decision not to reallocate the volumes back when those refinery exemptions began in 2011 could still be challenged.
Thought bubble: Next year’s fight is likely to be different. In the rule governing 2020’s blending requirements EPA for the first time added an extra 770 million extra gallons of ethanol to account for the refinery exemptions, all part of a White House deal with biofuel producers. This makes challenges to this year’s rule already working their way through the system timely and could force the court to address the legality of reallocating those volumes. Then again, biofuels industry group Renewable Fuels Association is hoping to convince the D.C. Circuit Court that the a district court ruling from January that blocked a handful of waivers should apply nationally, so it may all be moot.
Hey judges, remember that 2017 remand? An attorney for biofuel producers also took the time to ask the judges to press EPA to restore 500,000 gallons of blending requirements the court required back in 2016 as part of another case. The agency hinted it might take action on the remand in last year’s rule, but then just didn’t. “It’s incredibly frustrating,” Emily Skor, CEO of Growth Energy, a biofuels trade association that is among the plaintiffs, told reporters in a call after the hearing.
Enviros get some attention? Environmental groups regularly bring challenges to various aspects of the annual blending rules usually on the grounds that EPA should have consulted agencies about Endangered Species Act requirements. In years past, judges have given these arguments little attention, but Judge Rogers pressed EPA on why its own analysis, which appears to say the RFS does change land use patterns, is inadequate to trigger ESA’s requirements.
INSIDE HOW SoCalGas SCORED A FOSSIL FUEL WIN: A California state investigation into Southern California Gas, the nation’s largest natural gas distribution utility, is putting together details of how the company may have cloaked its advocacy by recruiting local politicians and minority groups to promote fossil fuels at California ports, according to people familiar with the probe and documents obtained by POLITICO.
The Public Advocates Office, an independent branch of the California Public Utilities Commission, launched an investigation last year when it found SoCalGas spent ratepayer dollars to start a group opposed to cities phasing out or banning natural gas in new buildings. The PAO probe has since widened to include other SoCalGas activities, including the company’s relationship with Imprenta Communications Group, a public affairs firm focused on issues in minority communities, POLITICO’s Colby Bermel reports.
Newly obtained company emails show SoCalGas worked with Imprenta throughout 2017 to enlist politicians of color ahead of a key climate vote by the ports of Los Angeles and Long Beach, as they sought to reduce emissions from ships, trucks and other infrastructure. The company ultimately scored a win as port officials exempted natural gas trucks from a fee on other trucks this year.
What investigators have uncovered so far suggests a well-coordinated operation by SoCalGas and Imprenta that involved writing gas-friendly remarks for politicians, making campaign contributions to those who delivered talking points and sending its own speakers to public meetings, Colby reports. If the investigation concludes SoCalGas’ actions were improper, the company could face sanctions.
DATAPOINT OF THE DAY: Twenty-six percent of childless adults called climate change a reason why they don’t currently have children, according to a new Morning Consult poll out today. While climate change was among the least-cited reasons for those who do not currently have children — behind financial, political and career concerns — it represented a particular concern among childless Hispanic respondents, with 41 percent saying it is a major or minor reason they don’t have children.
DRILL, MAYBE DRILL: Trump formally announced Friday the addition of North Carolina and Virginia to the existing 10-year offshore drilling moratorium that already included Florida, Georgia and South Carolina. “About a month ago I signed an order prohibiting offshore drilling on the Florida, Georgia and South Carolina coasts,” Trump said during a rally in Virginia on Friday. “And because I happen to like the state a lot, I said, ‘What about Virginia? What about North Carolina?'”
Trump then added, “If you want oil rigs out there, just let me know, we’ll take it off. I mean, you know, I can understand that, too. … I can change things very easily.” The move could help Trump in North Carolina, a key battleground where he’s been neck-and-neck with Biden. But, as Pro’s Ben Lefebvre reported last week, the moratorium doesn’t extend to seismic exploration in the area for oil or natural gas, which could hasten the start of drilling if Trump were to decide to reverse the moratorium.
MONIZ, TRUMKA LOOK AT JOB GROWTH IN ENERGY TRANSITION: Former Energy Secretary Ernest Moniz and Richard Trumka, the president of the AFL-CIO, identified several climate and labor policies that could spur new jobs in a low-carbon economy, including a national action plan for the deployment of carbon capture, utilization, and sequestration technology. The recommendations also point to the preservation of the existing nuclear fleet, implementing natural and engineered carbon dioxide removal and the development of technology to use of natural gas in a way that meets climate goals. Moniz and Trumka also call on the U.S. to support innovation in mining efficiency and in “earth abundant” materials for wind, solar and batteries.
“Our roadmap is based on the reality that there are no silver bullet solutions for net-zero emissions by mid-century,” Moniz said in a statement.
— “EPA to promote lead testing rule as Trump tries to burnish his record,” via The New York Times.
— “Devon Energy, WPX in talks to merge,” via The Wall Street Journal.
— “Global warming driving California wildfire trends – study,” via BBC.
— “Utah asks U.S. to delay decision on tapping Colorado River,” via Associated Press.
— “Trump administration moves to expand development in Alaska’s Tongass National Forest,” via NPR.
— “The crown jewel of the shale patch braces for a Biden ban,” via Bloomberg.
THAT’S ALL FOR ME!
