Ginsburg leaves behind environmental legacy - POLITICO - Politico

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Quick Fix

— Supreme Court Justice Ruth Bader Ginsburg died at age 87 after a battle with pancreatic cancer, leaving behind a long environmental legacy.

— The two front-runners to replace Ginsburg on the bench don't have much in the way of major environmental rulings, although at least one contender could change course on key Supreme Court precedents like Chevron deference.

— The House is slated to take up a sweeping clean energy package this week. The Rules panel meets today to wade through more than 100 proposed amendments to the measure.

WELCOME TO ANOTHER WEEK! I'm your host, Kelsey Tamborrino. The League of Conservation Voters' Tiernan Sittenfeld gets the trivia win for knowing helium is the element with the lowest boiling point. For today: What 20th century president holds the record for appointing the most justices to the Supreme Court? Send your tips, energy gossip and comments to [email protected].

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Driving the Day

GINSBURG LEAVES BEHIND ENVIRONMENTAL LEGACY: Justice Ruth Bader Ginsburg, who died Friday at age 87, leaves behind a long environmental legacy, having helped establish critical Supreme Court precedent that empowered EPA to address the greenhouse gas emissions driving climate change, POLITICO's Alex Guillén reports. In 2007, Ginsburg joined a landmark ruling that affirmed EPA's power to regulate those emissions, which enabled the Obama administration to issue rules limiting carbon pollution from cars, power plants and other sources — and set up a contentious legal battle over the extent of federal authority still being waged today.

"Through her expansive mind, sound temperament and unwavering judicial integrity, she plied the Constitution as a living instrument of American life, lending it meaning in the life of us all," said Gina McCarthy, president of the Natural Resources Defense Council and former EPA administrator.

Ginsburg also frequently voted for other environmental interests. She was part of the unanimous court that in 2001 said EPA cannot consider implementation costs when deciding on national air quality limits for smog, soot and other major pollutants. In 2014, she led a 6-2 majority that reversed a lower court and upheld an Obama rule limiting air pollution that floats across state lines, and in April, she was part of a six-justice majority that said pollution that travels into waterways via groundwater can be subject to the Clean Water Act.

One more Ginsburg case to know: A couple of legal eagles pointed out to ME that Alex's story didn't mention that Ginsburg also led a 7-2 court in an important 2000 ruling that eased the court's precedent on environmental standing, the constitutionally required threshold a person or organization needs to clear to be able to bring lawsuits. Before then, anyone filing a "citizen suit" to enforce an environmental law like the Clean Water Act had to meet a fairly high bar to prove there is a concrete "injury in fact" rather than a speculative harm, and to show that a favorable ruling could redress that injury.

Ginsburg's ruling in Friends of the Earth v. Laidlaw Environmental Services cited the unique characteristics of environmental laws to ease the standing requirements. The plaintiffs did not have to prove harm to the environment, which can be difficult, but instead just prove harm to themselves — in this case, that excess discharge from a wastewater treatment facility meant area residents could not use a river for recreation. That has increased the ability of environmental groups to sue polluters in recent decades. Ginsburg's ruling also established that such cases are not mooted just because a facility returns to compliance.

Supreme Court

GRIN AND BARRETT: President Donald Trump reportedly has zeroed in on two women for his third Supreme Court nomination. Neither has much background on environmental issues, but both likely would represent significant departures from Ginsburg. Here's a quick need-to-know on both potential nominees — with the caveat that a surprise third choice could always come into play.

Judge Amy Coney Barrett of the 7th Circuit is an originalist in the mold of Antonin Scalia, for whom she clerked in the late 1990s. A longtime Notre Dame professor, she has written frequently about a need for the Supreme Court to overturn its precedents more often and questioned the "administrative state." Experts say that indicates she would be open to significantly narrowing, or possibly overturning, key Supreme Court precedents like Chevron deference or EPA's regulatory authority on greenhouse gases.

Judge Barbara Lagoa of the 11th Circuit has emerged as a late-stage contender, reportedly because the nomination of a Cuban-American judge from Florida could help Trump's re-election efforts in that critical state. Lagoa has a lower profile in constitutional law circles and has little background on environmental issues. However, during her confirmation to the 11th Circuit last year, Lagoa dodged answering a question from Sen. Dianne Feinstein on the causes of climate change, arguing that it would be "inappropriate" to comment since the matter could come up in future litigation.

On the Hill

WHAT'S NEXT ON THE HILL? The president could announce a nominee to fill Ginsburg's seat as soon as this week, and Senate Majority Leader Mitch McConnell has vowed to hold a vote for the nominee, igniting a political firestorm between Democrats and Republicans weeks before Election Day. Senate Energy and Natural Resources Chair Lisa Murkowski (R-Alaska) and Maine GOP Sen. Susan Collins are so far the only GOP senators to oppose immediately filling Ginsburg's seat.

Slim odds getting slimmer: Even before the SCOTUS brawl, it was long odds that Congress would move much in the way of substantive legislation before the end of the year outside of appropriations and a potential new Covid-19 relief bill, but there was lingering hope that a handful of broadly bipartisan measures could make it through in the lame-duck period after the election. Now, with the upper chamber locked in a new level of rancor, the path forward for even popular legislation is far more complicated.

Bills to watch: Murkowski's long-awaited broad energy package, S. 2657 (116) was among those with a shot at moving this fall after senators reached a bipartisan agreement on a 15-year reduction in the use of a coolant and potent greenhouse gas. And Sen. John Barrasso (R-Wyo.) had been pushing to move his water infrastructure bill (S. 3591 (116)) and drinking water measure (S. 3590 (116)). The House passed its Water Resources Development Act (H.R. 7575 (116)) in late July and lawmakers have been keen to stick to their biennial cycle for passing WRDAs.

HAPPENING THIS WEEK: The House Rules Committee will meet today to formulate a rule on Democrats' sweeping clean energy package, H.R. 4447 (116), setting up a floor vote on the measure — which leadership has touted as a response to fighting climate change — as soon as Tuesday. The package combines a spate of green energy bills and includes boosts to energy efficiency in buildings and energy retrofitting for schools and homes, as well as workforce training and investments in renewable technology.

More than 100 amendments have been filed to the measure. One measure from Rep. Julia Brownley (D-Calif.) would set renewable energy requirements for the federal government, including that it get 35 percent of its power needs from clean sources by 2030, 75 percent by 2040, and 100 percent by 2050. Other proposed amendments include:

— a bipartisan amendment to extend the "commence construction" date for the 45Q tax credit on carbon capture and storage by 10 years;
— a bipartisan amendment from Reps. Emanuel Cleaver (D-Mo.) and David McKinley (R-W.Va.) to create a grant program for tree planting to reduce residential energy consumption;
— an amendment from Republican Rep. Jeff Duncan (S.C.) that would prohibit the president from declaring a moratorium on the use of hydraulic fracturing unless Congress authorizes it;
— a Democratic amendment from Rep. Mike Levin (Calif.) to establish a program to improve wildfire smoke emissions modeling and to develop smoke forecasts;
— a bipartisan amendment from Reps. Don Beyer (D-Va.) and Francis Rooney (R-Fla.) to direct 30 percent of revenue from federal offshore wind energy leases to NOAA's national coastal resilience program; and
— an amendment from Democratic Rep. Scott Peters (Calif.) to establish an interagency task force to create an action plan to reduce superpollutants based on policy recommendations provided by the Intergovernmental Panel on Climate Change and U.S. Climate Alliance.

Climate Change

WALMART SETS ZERO EMISSIONS TARGET: Walmart is out today with a new zero-emissions target by 2040 across all its supply chains, without using carbon offsets. The retail giant also pledged to power its facilities with 100 percent of renewable energy by 2035, and electrify its entire vehicle fleet by 2040. Walmart CEO Doug McMillon will share the news during the opening ceremony of Climate Week NYC.

The company's previous commitments included reducing emissions from its own operations by 18 percent by 2025, as well as eliminating 1 billion metric tons of carbon from its supply chain of food and manufactured goods — also known as Scope 3 emissions — by 2030. Currently, about 29 percent of the company's electricity is from renewable sources.

Achieving the new goals will depend on technology that isn't fully developed yet, because right now some emissions can't be completely eliminated, the company said in a document explaining its plans. Beyond expanding renewable energy and electrifying its vehicles, Walmart will also transition to refrigerants with less environmental impact to cool and heat equipment in its stores and data and distribution centers.

TALLYING GLOBAL EMISSIONS: The richest 1 percent of the global population is responsible for more than twice as much carbon pollution as the about 3.1 billion people in the poorest half of the population, according to a new Oxfam report released Sunday evening. According to the report — which looked at consumption emissions of different income groups between 1990 and 2015 — the richest 10 percent accounted for 52 percent of the emissions added to the atmosphere in that 25-year period. The richest 1 percent was responsible for 15 percent of emissions during that time, marking more than twice that of the poorest half of humanity (7 percent).

During the same 25-year timeframe, the richest 10 percent blew one-third of the remaining global 1.5 degrees Celsius carbon budget compared to 4 percent for the poorest half of the population, the report found.

Beyond the Beltway

CHESAPEAKE BAY, FORMER EPA OFFICIAL DIES: Former EPA official Lisa Feldt unexpectedly died Thursday in a traffic accident, leaving behind friends and former colleagues who remembered her commitment to protecting the environment. Feldt served as acting deputy EPA administrator under former President Barack Obama and was more recently vice president for environmental protection and restoration at the Chesapeake Bay Foundation. She also previously served as director of the Montgomery County Department of Environmental Protection. "We have lost a true champion for the planet," said Montgomery County Executive Marc Elrich in a statement.

Former EPA Administrator Lisa Jackson paid tribute to Feldt on Twitter. "Lisa Feldt was assigned to 'train' me in my very first job at EPA in 1987. I emailed with her just this past Monday," Jackson said. "We both grew up at EPA. I am devastated. I have never known a more upright, committed, passionate, or intelligent environmental servant/leader." Gina McCarthy also took to Twitter to remember Feldt, tweeting that she "was an incredible friend and colleague – smart, thoughtful, kind, funny, and so much more." McCarthy added: "We promise to honor her by continuing her passionate fight to protect the Chesapeake Bay and our nation's waterways."

Movers and Shakers

— Meshal DeSantis joins the National Wildlife Federation as communications director. Most recently, DeSantis worked in communications at PL+US: Paid Leave for the United States and the Carnegie Endowment for International Peace.

— Kelly Collins is now senior policy adviser to Rep. Larry Bucshon (R-Ind.). She previously was special assistant for the White House Council on Environmental Quality. (H/t Playbook)

The Grid

— "Pelosi: No one has 'any interest' in government shutdown," via POLITICO.

— "Docs: Trump aides pushed EPA for fewer methane checks," via E&E News.

— "Amid brutal natural disaster season, nearly 3 in 4 adults say climate change is playing a role," via Morning Consult.

— "Oil companies are profiting from illegal spills. And California lets them," via The Desert Sun.

— "Fires scorch a way of life that still grows from the trees," via The New York Times.

— "Trump administration announces $13 billion in additional aid to Puerto Rico," via CNN.

THAT'S ALL FOR ME!

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