Environmental Law in a New, Solidly Conservative Supreme Court
Written by Prof. Robert Percival
The late Supreme Court Justice Byron White, for whom I clerked, once said that whenever a new Justice joins the Court, it becomes a different Court. He explained that this was particularly true when Justice Thurgood Marshall joined the Court because he brought an entirely different set of life experiences than the other justices had. With the untimely death of Justice Ruth Bader Ginsburg and her swift replacement with Justice Amy Coney Barrett, the Supreme Court has changed profoundly and not just because it now has a justice who did not attend law school at Harvard or Yale (Justice Barrett went to Notre Dame).
When Justice Ginsburg died, the Court lost an environmental champion as I have explained elsewhere (see “Remembering Justice Ginsburg, An Environmental Champion,” Environmental Law Institute Vibrant Environment Blog). Prior to her death the Court had four “liberal” justices sympathetic to environmental regulation (Justices Ginsburg, Breyer, Sotomayor, and Kagan) and five “conservative” Justices skeptical of it (Chief Justice Roberts and Justices Thomas, Alito, Gorsuch and Kavanaugh). This meant that environmentalists had to attract at least one “conservative” vote in order to prevail in any case. The replacement of Justice Ginsburg with Justice Barrett now cements a 6-3 conservative majority that may have profound implications for the future of environmental law.
When Justice Ginsburg was on the Court, Justice Roberts had been an occasional swing vote, joining her and the three other liberal justices to produce 5-4 decisions upholding the Affordable Care Act, salvaging the DACA program and barring a citizenship question on the census. Last term in two environmental cases Chief Justice Roberts joined the liberals to preserve important aspects of environmental law. In each case Justice Kavanaugh also joined the Chief Justice, producing surprising 6-3 victories for the environment. Last term the Chief Justice and Justice Kavanaugh were the two justices most likely to agree, doing so in 93% of the decisions.
In County of Maui v. Hawaii Wildlife Fund, the Court rejected an extreme interpretation of the Clean Water Act that the Trump administration had endorsed. The Court ruled that Clean Water Act permits could be required for pollution discharges that pass through groundwater before reaching federally protected waters. Chief Justice Roberts and Justice Kavanaugh joined Justice Breyer’s majority opinion holding that the administration’s position was not entitled to any deference because it would open up a huge loophole in the Act’s permit requirements.
In Atlantic Richfield v. Christian the Court rejected a smelter owner’s claim, supported by the Trump administration, that the federal Superfund law barred property owners living on contaminated land from suing polluters in state court. The case caused two conservative legal foundations who normally oppose environmentalists to take opposite sides – one supporting the smelter owner and the other the property owners. The Court also held that the property owners can use state damages awards to clean up their property if EPA determines it will not interfere with a Superfund cleanup.
By the end of October 2020 the Supreme Court had agreed to hear five environmental cases in its 2020-21 term. Two of them are disputes between states over water resources (Texas v. New Mexico and Florida v. Georgia) that are being heard using the Court’s original jurisdiction. Another (Sierra Club v. Fish & Wildlife Service) involves whether the deliberative process exemption of the Freedom of Information Act bars access to drafts of biological opinions produced to comply with the Endangered Species Act.
The Court also has agreed to hear a climate change case (BP v. Mayor and City Council of Baltimore), but only to resolve a narrow question of appellate procedure that does not address the merits. Several cities, counties and states have sued the fossil fuel industry in state courts to recover damages caused by climate change. The companies’ efforts to remove the cases to federal court have been almost uniformly rejected, as it was in the case the Court has agreed to hear. The court is seeking to resolve a split among the federal appellate courts over what appellate courts may consider when reviewing remand decisions by federal district courts. While the Court’s ultimate decision is unlikely to affect the merits of the litigation, by agreeing to grant review the Court likely has delayed for another year trials seeking to hold the oil industry accountable for its climate denial.
The fifth environmental case the Court has agreed to hear involves a decision holding that construction of a wall on the Mexican/US border is illegal. Despite a 35-day shutdown of the federal government, Congress refused to appropriate funds for a border wall. President Trump then declared a national emergency and reprogrammed $2.5 billion appropriated for the Department of Defense to the Department of Homeland Security for border wall construction. Alleging that the spending was illegal, the Sierra Club obtained an injunction barring border wall construction. After both the district court and the 9th Circuit refused to stay the injunction, the Supreme Court granted a stay in July 2019. The Court stated that “the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with” the appropriations act. After wall construction commenced, the Ninth Circuit affirmed the district court’s holding that the wall construction is illegal. However, in July 2020 the Supreme Court refused to lift the stay by a vote of 5-4, provoking a dissent by Justice Breyer who argued that the funds might be spent before the case could be decided by the Court. In its cert petition the government argued that the Sierra Club lacks prudential standing because only Congress is within the “zone of interests” protected by the appropriations act. The case could become moot before the Court hears it, if a new administration pulls the plug on wall construction.
With the justices on the Court sympathetic to environmental regulation now reduced to three, they no longer by themselves can muster the four votes required to get the Court to agree to hear a case. The importance of this is illustrated by the Court’s landmark environmental standing decision in 2000 in Friends of the Earth v. Laidlaw Environmental Services. Authored by Justice Ginsburg, the decision decisively rejected Justice Scalia’s campaign to restrict the standing of environmental groups by a 7-2 vote. But when the Court initially agreed to hear the case, there were only four votes to do so.
A more solidly conservative court could make it more difficult for a new administration to repeal regulatory rollbacks undertaken by the Trump administration. Environmental standing also may be in jeopardy, particularly in climate change litigation. In the 2007 Massachusetts v. EPA decision, Chief Justice Roberts wrote a dissent for four Justices saying that even states do not have standing to sue EPA for its refusal to regulate greenhouse gas emissions. Only Justice Breyer remains on the Court from the five-justice majority produced in that case when Justice Kennedy joined the four liberals. While a judge on the Seventh Circuit, Justice Barrett wrote two decisions finding that plaintiffs did not have standing in cases where even the defendants agreed that they did.
The more solidly conservative Court also could seek to expand regulatory takings doctrine to require the government to compensate property owners affected by environmental regulations. In a 5-4 decision in 2019 the Court overruled a longstanding precedent requiring plaintiffs to bring takings claims in state courts before filing federal lawsuits. The Court also may revive the non-delegation doctrine to strike down regulatory statutes for giving legislative power to executive agencies like EPA. In 2001 the Court unanimously reversed a lower court decision holding the Clean Air Act unconstitutional on non-delegation grounds. But both Justice Barrett and the other conservatives have indicated their receptivity to revisiting the non-delegation doctrine heretofore used only in 1935 to strike down two early New Deal statutes.
Faced with a solidly conservative Court for years to come, environmental litigants will need to be more cautious about seeking Supreme Court review. They also will need to be more strategic in how they structure their defenses of lower court victories, reaching out to form new coalitions and invoking legal doctrines with appeal across ideological lines. With the death of Justice Ginsburg, the Court no longer has an environmental champion and Chief Justice Roberts, who has fought hard to combat the perception that the Court is a political institution, no longer is the swing vote on the Court.