What does Justice Scalia’s passing mean for environmental cases at Supreme Court?

The death Saturday of Justice Antonin Scalia at age 79 is likely to have a significant impact on the environmental law docket at the U.S. Supreme Court.

First, the significance of the stay against the part of the Obama administration’s Clean Power Plan that deals with existing coal-fired electric plants, issued by a 5-4 vote that had Scalia supporting the request by utilities and a coalition of anti-regulation states to block the rule, is reduced. With a presumed 4-4 tie on the question whether the Clean Power Plan is consistent with the Clean Air Act and the Administrative Procedure Act (and the U.S. Constitution, to the extent a Tenth Amendment argument is mounted by challengers), any decision in the litigation by the U.S. Court of Appeals for the District of Columbia Circuit is likely to be affirmed. The D.C. Circuit has to be assumed inclined to uphold the carbon dioxide rules; a significant majority of the judges on that bench were appointed by Democratic Presidents and the assigned panel previously rejected the stay application.

Should President Obama obtain Senate confirmation of a nominee to replace Scalia before his term expires next January, it’s at least somewhat likely that appointee would uphold the rule. Should the Republican-dominated Senate succeed in blocking any replacement until after the next President’s term starts, as the chamber’s majority leader has said the GOP will try to do, the outcome would likely depend on the party affiliation of the election winner. A Republican President would likely withdraw the Clean Power Plan, or settle the litigation on terms favorable to the states and industrial interests contesting it in the D.C. Circuit, even before the litigation challenging it arrived at the Supreme Court. Failing that, a Republican-appointed justice could be expected to take a skeptical perspective on the Clean Power Plan.

Two other significant environmental cases await the Supreme Court’s decision on whether to grant petitions for certiorari. The question whether to accept both is probably impacted by the vacancy created by Scalia’s death.

Scalia, early in his career as a Supreme Court justice, defended the iconic Chevron rule that requires courts to defer to agency interpretations of ambiguous language in statutes. But that willingness to defer to agencies seems to have lessened as the justice’s time on the bench proceeded. As Professor Dan Farber wrote Feb. 15 on Legal Planet:

“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.”

Scalia was the author of all three.

Moreover, Scalia had shown a willingness to look harshly on law that tended to favor environmental protection. He wrote several opinions that reduced the ability of environmental groups to file lawsuits challenging federal policy, for example, and he also was the author of a plurality opinion in a 2006 decision that would have, absent a moderating concurrence by his colleague Anthony Kennedy, drastically reduced the U.S. government’s regulatory power over wetlands and streams.

It seems plausible, then, to suppose that Scalia had developed a greater willingness to reject the ways in which agencies, especially those tasked with enforcing environmental laws, read federal statutes. In the two cases that are now subjects of cert petitions, that perspective may have made a difference in whether the court grants review and in the outcome.

Chesapeake Bay
Chesapeake Bay is shown in this image obtained by the LANDSAT satellite.

The first of these two cases involves efforts to clean up the  64,299 square-mile large Chesapeake Bay drainage basin. In a July 2015 decision the U.S. Court of Appeals for the Third Circuit rejected attacks on the Total Maximum Daily Load designations for the bay. The Obama administration issued the pollution limits in 2010 under an agreement with environmental organizations who had sued the agency for failure to finalize them.

The TMDLs, which apply to nitrogen, phosphorus, and sediment loading into the beleaguered bay, are a tool made available by the Clean Water Act. They are imposed by EPA as a supplement to point source emission limits after the agency approves water quality standards created by a state for an affected water body or, if it rejects the state-based pollution limit, imposes its own.

On Nov. 6 the American Farm Bureau Federation and several other agriculture organizations asked the Supreme Court to hear the dispute. In their cert petition the groups argued that EPA’s decision to issue the TMDLs for Chesapeake Bay sets a precedent that could allow expanded federal power over land use all over the country. The groups base this assault on the TMDLs on a claim that EPA’s interpretation of the Clean Water Act is inconsistent with Congress’ intent. In particular, the agriculture groups argue that EPA cannot allocate responsibility to comply with the TMDLs for nitrogen, phosphorus, and sediment among multiple sources of those pollutants and must, instead, limit itself to specifying the maximum amount of those pollutants that can enter the bay.

As a member of the Supreme Court’s politically conservative bloc and as a jurist who has shown a willingness to rigorously scrutinize EPA’s reading of environmental laws, Scalia might have been inclined to find this argument convincing enough throw out the TMDLs. While there may still be four votes to grant the cert petition, his absence probably means there are not five votes to reverse the Third Circuit decision.

The case is American Farm Bureau Federation v. U.S. Environmental Protection Agency, No. 15-599.

Tongass National Forest - photo by Mark Brennan
Tongass National Forest – photo by Mark Brennan

Another dispute, this one involving Alaska’s 16.8 million acre Tongass National Forest, may also be affected by Scalia’s death. There, Alaska has asked the justices to review a decision by the U.S. Court of Appeals for the Ninth Circuit that invalidated a George W. Bush administration regulation exempting the Tongass from the Roadless Area Conservation Rule.

RACR is a regulation imposed by the administration of President William Jefferson Clinton that limits development, especially logging and road construction, in wilderness-quality areas of national forests. The Clinton-era U.S. Department of Agriculture Forest Service decided that the importance of preserving roadless tracts in the Tongass outweighed the economic consequences that followed from selling less timber from that forest in the future.The agency thus foreclosed about 90 percent of future planned timber harvests on the Tongass.

In December 2003, the Forest Service reversed that finding and decided that the economic value of timber in the Tongass exceeded the environmental value of the roadless areas. The Bush administration acted after Alaska had challenged RACR on the merits but before the validity of RACR was ultimately upheld by the federal courts of appeals based in San Francisco and Denver.

The Ninth Circuit decided that the Bush administration’s Forest Service changed its perspective on the relative value of roadless areas in the Tongass without providing a sufficient justification. Relying on the Supreme Court’s decision in a case called Federal Communications Commission v. Fox Television Stations, Inc., in which Scalia wrote the majority opinion, the en banc panel held that the agency had disregarded its earlier factual findings about the importance of roadless area conservation without enough explanation.

Alaska’s cert petition argues that a change in political philosophy that occurs when an administration of a different party assumes power is enough justification for it, a point the Ninth Circuit panel acknowledged, and that no other reason is needed to support a change in a regulation.

Alaska’s attorneys may have hoped that Scalia’s vote, along with that of the other four conservative justices, would be enough to save the Tongass National Forest exemption from RACR. Without Scalia’s vote, it is less likely that five justices will agree that the Ninth Circuit got it wrong and, therefore, possibly less likely that the requisite four justices will vote to grant review.

The case is Alaska v. Organized Village of Kake, No. 15-467.

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