News & Insights

ESG Excellence

February 22, 2022

Justice Breyer’s Climate Legacy and What’s Next for the High Court

On January 26, 2022, Justice Stephen Breyer announced his resignation as an Associate Justice on the Supreme Court. With eyes on President Biden as he considers a replacement, climate change and whether the Court’s docket will address climate remain top of mind for many.   

Justice Breyer, the last remaining member of the Supreme Court to give EPA the legal authority to regulate greenhouse gases, has been described as a “mostly solid, largely pragmatic voice for climate change and other environmental issues.” Notably, Breyer voted with the 5-4 majority in Massachusetts v. EPA in 2007, which granted the federal government the authority to regulate greenhouse gas emissions under the Clean Air Act.   

The Court’s recent docket has included a focus on challenges to environmental law.  In 2020, Breyer wrote for the majority in County of Maui v. Hawaii Wildlife Fund, in which Breyer, somewhat surprisingly, held that permits are required for the “functional equivalent” of a direct discharge in a waterbody under the Clean Water Act. Breyer’s decision has been described as striking a balance between environmental interests and the interests of regulated entities and the Trump administration’s EPA.   

With the convergence of increased Supreme Court action in the climate and energy space, and the public rhetoric asking Biden to fill the vacancy with a “champion for climate, clean energy, and environmental justice,” Breyer’s replacement could have a particularly meaningful impact on the future of climate policy (Jamal Raad, Evergreen Action).  Regulated entities should keep an eye on the ultimate pick.  

For more on Justice Breyer’s climate legacy, see here and here.