Scalia's decisions were almost unremittingly anti-environmental.
Over the past three decades, Justice Scalia did much to shape environmental law, nearly always in a conservative direction. Because of the importance of his rulings, environmental lawyers and scholars are all familiar with his work. But for the benefit of others, I thought it might be helpful to summarize his major environmental decisions. The upshot was to restrict EPA’s authority to interpret environmental statutes, make property rights a stronger bulwark against environmental protection, restrict the ability of environmental groups to go to court, and limit federal authority over rivers and wetlands.
Administrative law. The Chevron test says that an agency’s interpretation of a statute is entitled to deference. It can be set aside only if it is contrary to an unambiguous statute or if it is an unreasonable interpretation of an ambiguous statute. There are only three cases in which the Supreme Court has ever held that a statute’s interpretation of an ambiguous statute was unreasonable, all three written by Scalia: Whitman v. American Trucking, UARG v. EPA, and Michigan v. EPA. In all three cases, the “unreasonable” agency was EPA. To be fair, in American Trucking, he did admit that another portion of the statute unambiguously required air quality standards to be based solely on health effects, not cost.
Property rights. Justice Scalia wrote two major opinions elevating property rights over land use controls. In the Lucas case, he held that a government regulation is a taking if it completely blocks development or other economic use of the land. In the Nolan case, he held that even when the government would be justified in denying a permit completely, it can’t impose “logically unrelated” conditions on the permit, even if those conditions are in the public interest. In Stop the Beach Renourishment, he tried to freeze property law in place for all time by holding that a decision by a state supreme court reinterpreting state property law can be a taking.
Standing. Justice Scalia wrote major opinions limiting standing for environmental groups in National Wildlife Federation, Defenders of Wildlife, and Summers v. Earth Island Institute, Scalia narrowed standing law, making it more difficult for environmental groups to sue.
Federal jurisdiction. In Rapanos, a plurality opinion by Scalia attempted to cut back drastically on federal authority over wetlands and streams. Justice Kennedy, the swing voter, wrote a more nuanced opinion that gave the federal government more maneuvering room.
If Scalia had lived, he clearly would have pushed to expand on these precedents, further weakening environmental protection. For better or worse, he shaped current legal doctrine in fundamental ways.
This blog is cross-posted on Legal Planet.
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Daniel Farber | February 16, 2016
Scalia’s decisions were almost unremittingly anti-environmental. Over the past three decades, Justice Scalia did much to shape environmental law, nearly always in a conservative direction. Because of the importance of his rulings, environmental lawyers and scholars are all familiar with his work. But for the benefit of others, I thought it might be helpful to […]
James Goodwin | February 12, 2016
In case you didn’t get the memo: President Obama is entering the last year of his final term in office, so now we’re all supposed to be panicking over a dreaded phenomenon known as “midnight regulations.” According to legend, midnight rulemaking takes place when outgoing administrations rush out a bunch of regulations during their last […]
Matthew Freeman | February 11, 2016
Last month, Politico’s Michael Grunwald published what I suspect is going to be a first draft of history’s judgment of Barack Obama’s presidency. He writes that “a review of his record shows that the Obama era has produced much more sweeping change than most of his supporters or detractors realize.” Grunwald runs a long list […]
Alice Kaswan | February 10, 2016
The Supreme Court’s February 9 stay of the Obama Administration’s Clean Power Plan may have removed the states’ immediate compliance obligations, and it will undoubtedly remove some pressure for action in states resistant to change. Nonetheless, the extensive data and fundamental state and regional planning processes generated by the Clean Power Plan (the Plan) may […]
Victor Flatt | February 10, 2016
In a surprising moves to legal experts, the Supreme Court yesterday in a 5-4 ruling stayed the implementation of the EPA’s Clean Power Plan (CPP) supporting greenhouse gas reductions at fossil fuel fired power plants. The move was surprising because the Supreme Court rarely involves itself in the determinations of whether or not a temporary […]
Matthew Freeman | February 4, 2016
NEWS RELEASE: Analysis of EPA TMDL Data Documents Looming Failure by Chesapeake Bay States to Meet 2017 Pollution-Reduction Goals In Report & Letters to EPA and Governors, CPR Authors Call on Bay States to Step Up, and on EPA to Begin Enforcement Actions A new analysis from the Center for Progressive Reform concludes that the efforts […]
Daniel Farber | January 28, 2016
The value of some goods like wilderness today depends on their futures. Normally, economists imagine, equal experiences become less valuable as they recede further into the future. But some types of goods don’t have that kind of relationship with future experiences. They can become more valuable as they extend farther into to the future. Take […]
James Goodwin | January 20, 2016
Still just a few weeks into the new year, both chambers of Congress are making it clear that attacks on our system of regulatory safeguards will remain a top priority in 2016. The GOP-controlled House of Representatives has already passed—along partisan lines—two antiregulatory measures, and the Senate appears poised to follow suit with their own […]
Evan Isaacson | January 13, 2016
The water crisis in Flint, Michigan, is a tragic reminder of the hidden costs of our nation’s failing infrastructure. Whether through benign neglect or deliberate “starve the beast” cost-cutting measures, we are continually seeing the costly and sometimes terrible consequences of failing to meet our infrastructure financing needs. The American Society of Civil Engineers gave […]