The U.S. Supreme Court remains sharply divided on important issues of environmental law, as Professor Robert Percival emphasized in presentations to the American Bar Association’s environmental section in Baltimore on October 19 and to the American College of Environmental Lawyers in Charleston on October 28. Reviewing the Court’s June 2017 decision in Murr v. Wisconsin, Percival noted that this was the last environmental case in which Justice Antonin Scalia participated in the decision to grant review, and the first environmental case it decided after his death. The Court rejected the regulatory takings claim by a 5-3 vote without the participation of its newest Justice Neil Gorsuch. In a paper prepared for the ABA conference, Percival reviewed the history of the Justices’ voting patterns in regulatory takings cases. He found that Justice Anthony Kennedy, who wrote the majority opinion in Murr, is the only Justice always to have voted with the majority in the ten regulatory takings cases the Court has decided during his nearly 30 years on the Court. Kennedy has voted for the property owner in six of those cases and for the government in four. Percival’s paper is available online at: https://www.americanbar.org/content/dam/aba/events/environment_energy_resources/2017/fall/conference_materials/3_percival.authcheckdam.pdf
During the Court’s current term that started on October 2 it has only one environmental case on its docket. The case - National Association of Manufacturers v. DOD – raises the question whether challenges to EPA’s Clean Water Act “waters of the U.S.” rule should be brought first in federal district court or in the U.S. Courts of Appeal. Students from Percival’s Environmental Law class attended the oral argument in the case on October 11. The Court also will hear oral argument in two interstate water rights cases (Texas v. New Mexico and Florida v. Georgia) that it has entrusted to special masters.
Percival also reviewed a plethora of other environmental cases in which Supreme Court review has been sought. These include cases involving the Endangered Species Act, the Clean Air Act, the Clean Water Act, water rights, and questions whether federal law preempts state restrictions on mining. Because the Supreme Court denies review in the vast majority of cases in which it is sought, it seems unlikely for now that it will venture much further into deciding environmental issues in the near future. But if rumors that Justice Kennedy may announce his retirement at the end of the Court’s current term in June 2018 prove accurate, a dramatic shift could occur in the Court’s environmental jurisprudence.