Justice Scalia and the American Eco-Kulturkampf

by Robert Verchick

February 22, 2016

Justice Antonin Scalia’s Supreme Court chair sits empty, draped in black wool to honor a man whose intellect and fire-breathing keyboard helped reshape the nation’s political landscape. Depending on how things go, that chair could be empty for a while. Unlike more recent nominations to replace a Justice, a nomination from President Obama could reorient the Court away from its long-standing conservative tilt toward something more progressive or even merely moderate. In the current session alone, important cases involving affirmative action, abortion, birth control, and immigration hang in the balance.

Add the environment to your list of hot topics. Simmering questions about climate change, water quality, and wetlands will be bubbling up very soon. And the next occupant of that vacant chair will have a lot to say about the planet’s fate, although I’m sure less vividly than Justice Scalia might have put it.

Justice Scalia, of course, was eager to take sides in America’s eco-kulturkampf, often, but not always, turning interpretive somersaults in defense of developers and polluters. (An important exception is his majority opinion in Whitman v. American Trucking, finding that EPA must set health-based ambient air quality standards without considering cost.) Justice Scalia, for instance, argued that EPA’s power to protect the “waters of the United States” should be restricted to only “relatively permanent bodies of water,” erasing 30 years of lower court precedent and writing out of the law thousands of miles of western rivers, streams, and gullies. He wrote a sequence of opinions on judicial standing that had the effect of stopping plaintiffs from challenging unlawful government acts that endangered biodiversity and public health. Critics complained that such roadblocks appeared nowhere in court precedent or even in the Constitution. (A prudent reading? An unchaste ukase? Please take five minutes to discuss.)

In Massachusetts v. EPA, the Justice famously opposed EPA’s authority to regulate greenhouse gases as air pollution on the grounds that such gases were neither “pollutants” nor in the “air.” He lost that argument to a 5-4 majority. But he was back a few years later writing for a majority to limit EPA’s authority to regulate greenhouse gases through pre-construction permits issued to new power plants.

With that history in mind, here are three issues to look forward to.

Another Climate Question

First up is the Clean Power Plan (CPP), the regulation designed to reduce carbon emissions from power plants by 2030. As those who follow our work know, CPR has been monitoring these developments carefully. Industry groups and 27 states challenged the rule in federal court and, in a surprising move, the Supreme Court blocked the regulation before a lower court could even review it. Justice Scalia’s necessary fifth vote was one of his last official acts. The decision sent shivers through progressive communities, which interpreted it as a sign that the influence of Big Coal’s supposed jiggery-pokery was expanding.

Now the board is reset. If the federal Court of Appeals for the D.C. Circuit upholds the CPP (which, given the make-up of the current three-judge panel assigned to the case and the weakness of the argument for blocking the CPP, it seems likely to do), and if the challengers appeal, the Supreme Court would review the case and likely arrive at a 4-4 divide. With the Court evenly split, the appellate decision would stand.

But what if President Obama is able to get a nominee on the Court? Here we move into the speculative world of three-dimensional chess. In one scenario, environmentalists get a stronger hand: The appellate court upholds the CPP in a 2-1 vote, as predicted, and the Supreme Court, thanks to a new progressive fifth vote, upholds that decision.

But there’s another more complicated scenario. (Here, I tip my hat to three-dimensional-chess master Ann Carlson of UCLA for her shrewd eye.) Suppose President Obama nominates Judge Sri Srinivasan of the D.C. Circuit, whom many believe to be at the top of the President’s list. It just happens that Judge Srinivasan is a member of that three-judge appellate panel that is predicted to favor the CPP by a 2-1 margin. Move Judge Srinivasan from the D.C. Circuit and onto the Supreme Court and you get the possibility that (a) a reconstituted appellate panel would contain a majority to invalidate parts of the CPP and (b) the newly appointed Justice Srinivasan would choose to recuse himself because of his previous experience with the case, thus creating another 4-4 split. But this time, the split could leave in place an appellate decision going in the opposite, anti-environmental direction.

It seems safe to say, that if you are the climate you will be rooting for Justice Scalia’s leather chair to remain empty for the next year or for it to be filled by someone not necessary to the survival of the CPP in the D.C. Circuit.

The Future of Chesapeake Bay

The restoration of the Chesapeake Bay, another important project CPR is involved in, will also be affected by this change in the Court. Last June, the Federal Court of Appeals for the Third Circuit upheld a creative plan developed by the EPA and six states to impose a pollution budget (also called a TMDL) for Chesapeake Bay. The feat was enormously complicated because pollution flows into the Bay from many sources, including large agricultural operations that are not as tightly regulated under federal law as are industrial plants. If the plan succeeds, it could provide a model for cleaning up other large bodies of water like the Great Lakes and the Gulf of Mexico.

But the farm lobby is now petitioning the Supreme Court to grant cert and review the Third Circuit’s decision. Where environmentalists see a smart program designed to hold farmers accountable, skeptics see a crock of pure applesauce. The Supreme Court is expected to consider the petition for the first time on February 26, making this one of the first items to be taken up since Justice Scalia’s death.

The Future of Waters of the United States

Finally, let’s return to those rivers, streams, gullies, and other aqueous bodies that some call water and others, well . . . don’t. The definition of water, specifically, the “waters of the United States,” turns out to be incredibly important since under the Clean Water Act, the EPA’s power to control pollution and the Army Corps of Engineer’s power to control fill-based development extends only to those bodies. Leave out some of the West’s most important tributaries (which are sometimes wet and sometimes dry) or the “prairie potholes” of the Great Plains, and it becomes much harder to protect the nation’s water quality. The Supreme Court has always recognized federal jurisdiction over many kinds of tributaries and marshes, but the dividing line is blurry. In 2006 a Supreme Court decision, which was split 4-1-4, purported to give federal agencies guidance, but seemed to me a master class in legalistic argle bargle.

Last year the EPA and the Corps issued a new 300-page rule to clarify the definition, which, as you might imagine, is not exactly a limpid pool of exposition. The Sixth Circuit Court of Appeals has blocked implementation of the rule pending a determination of whether the case is properly before the court. If it is, the Sixth Circuit’s resolution might then be appealed to the Supreme Court by the losing party. Without Justice Scalia, the previous 4-1-4 split becomes a 3-1-4 split, which might be enough to break a tie, but, then again, maybe not. Really, I could speculate more, but at this point I’m down to penumbras and emanations, blah blah blah, garbage.

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Robert R.M. Verchick holds the Gauthier ~ St. Martin Eminent Scholar Chair in Environmental Law at Loyola University, New Orleans, is the Faculty Director of the Center for Environmental Law at Loyola, and is a Senior Fellow in Disaster Resilience Leadership, Tulane University. He is the President of the Center for Progressive Reform.

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