New era begins for environmental law, Obama’s climate rule

Source: Robin Bravender and Jeremy P. Jacobs, E&E reporters • Posted: Tuesday, February 16, 2016

Justice Antonin Scalia’s death will likely spur a tectonic shift in environmental law.

The loss of the conservative firebrand, who was found dead yesterday at a Texas resort, sending shock waves through the worlds of law and politics. Lawyers are watching to see how the departure of the Supreme Court’s strongest conservative will affect the court’s ideological balance.

Scalia, an outsized and at times bombastic personality who was equally sharp in his questions at oral arguments as he was in his opinions and dissents, reshaped conservative legal theory — bending it to focus on what the framers of the Constitution meant when it was ratified.

Some viewed the Trenton, N.J., native as U.S. EPA and environmentalists’ biggest enemy on the Supreme Court due to some of his more scathing opinions reining in federal regulations.

In the short term, his absence on the bench has major implications for a series of high-stakes energy and environmental cases the court has agreed to take on this term, since the court is now evenly split along ideological lines. Over the longer term, his death will impact how big environmental cases — including the epic battle over the Obama administration’s Clean Power Plan — play out.

President Obama has pledged to nominate Scalia’s successor, and rumors already abound about who may be on the short list to replace him. But prospects for any Obama pick clearing the GOP-led Senate this year are highly uncertain as Republican leaders are pushing to stall a confirmation until the next president takes the White House (see related story).

Scalia was beloved by critics of environmental regulations and feared by proponents of expansive federal regulation. In his three decades on the high court, he penned a series of sharply worded opinions rolling back environmental rules.

“He was a stalwart of the court, not only because of his conservative views, but the power of his expression,” said James Rubin, an attorney at Dorsey & Whitney. Rubin called Scalia the court’s “most outspoken” critic of EPA.

Todd Aagaard, vice dean and professor at Villanova University School of Law, said “regardless of whether you agree with him,” Scalia’s opinions were “very tightly reasoned, and they don’t pull any punches.” That “made people worry more about the implications of his opinions,” Aagaard added.

Scalia wrote no fewer than 10 majority opinions in environmental cases, many of which shaped the principles of the country’s major environmental laws that were still in their infancies when he was confirmed to the high court in 1986.

Perhaps his biggest impact was on the concept of standing, meaning when environmental groups and others could show they were “injured” and, therefore, qualified to challenge regulations and agency actions in court.

In three majority opinions, Scalia sharply narrowed the scope of that key legal hurdle. Most notably, in Lujan v. Defenders of Wildlife, the justice in 1992 wrote that the environmental group lacked standing to challenge Endangered Species Act protections.

The decision is still frequently cited and discussed in environmental lawsuits, and Scalia reiterated his view of standing in two subsequent majority opinions in environmental cases, one in 1998 and another in 2008.

More recently, Scalia had emerged as a foe of far-reaching EPA regulations, suggesting that the agency must consider the cost and economic impact of implementation.

Vermont Law School professor Patrick Parenteau said Scalia “basically established the principle that economic interests are presumptively in and environmental interests are not. He consistently sided with property rights over protection of wildlife, wetlands or other natural resources.”

He wasn’t seen as a solid vote against EPA, however.

Although he was very concerned about agencies “overstepping authorities,” Rubin said, “I wouldn’t call him anti-environmentalist.”

Environmental lawyers point to a major 2001 case called Whitman v. American Trucking Associations as a landmark opinion where Scalia took a pro-environment stance. In the majority opinion he penned, the court found that EPA could not consider costs when setting national limits for air pollutants.

Jonathan Adler, a professor at the Case Western Reserve University School of Law, said that opinion showed Scalia strove to separate the environmental and public health aspects of a case from the fundamental legal question.

“Justice Scalia may have written opinions very critical of environmentalist positions, but he also wrote the majority in Whitman v. American Trucking Associations, which he believed was guided by well-established principles of administrative law.”

Murky outlooks for major cases

This term was shaping up to be a major one for environmental cases, with several high-profile issues on the court’s docket. But Scalia’s death means the court is likely to have just eight justices for the rest of the term, and may not be issuing precedential opinions on some big cases.

If the justices split 4-4 on a case — as they’re likely to do if they divide along ideological lines — the court simply upholds the decision of a lower court without setting new precedent.

Historically, the court has also avoided far-reaching opinions when there are only eight justices on the bench, choosing instead to issue more minor, procedural rulings to avoid the 4-4 splits.

So far this term, the court has issued just one major energy opinion, when the justices split 6-2 to uphold a controversial energy conservation rule. In that case over the Federal Energy Regulatory Commission’s demand-response rule, Scalia authored the sharply worded dissent, contending that the agency had overstepped its authority.

Other cases in the pipeline that will be impacted by Scalia’s absence on the court include cases over whether the National Park Service can ban a moose hunter’s hovercraft from an Alaskan refuge, state incentives for power generation and whether landowners can challenge government determinations that their properties contain wetlands.

Clean Power Plan’s fate

Environmental lawyers are scrambling to figure out what Scalia’s death means for the Obama administration’s landmark climate change rule, which is slated to be the most significant environmental case in coming years.

Just last week, the court issued a 5-4 order halting the rule while the legal battle plays out, with Scalia on the side of the majority voting to freeze the regulation.

The high court’s rebuke of the Clean Power Plan was widely viewed as a sign that the nine justices could ultimately decide to torpedo the rule after digging into the merits of the lawsuits.

But with the pending arrival of a new justice — and the possibility that the court could soon shift to the left — the fate of the Clean Power Plan is far from certain.

“I think Scalia was probably going to be the most aggressive challenger of the Clean Power Plan,” Parenteau said.

The case is still playing out in the U.S. Court of Appeals for the District of Columbia Circuit, with oral arguments slated for early June.

Interestingly, one of the D.C. Circuit judges selected to hear the case is Sri Srinivasan, who was appointed to the court by Obama and is widely cited as a possible nominee to fill Scalia’s seat.

If he’s nominated before the case is heard in June, Srinivasan may recuse himself from hearing the Clean Power Plan case in the lower court. That would mean another judge would be picked and could impact the outcome in that court.

The three-judge panel slated to hear the case in the D.C. Circuit is seen as favorable to the Obama administration, with two Democratic appointees and one Republican appointee. A potential Srinivasan recusal has the potential to shift the dynamics of the case.

And Scalia’s death may have revived the rule’s chances of withstanding the high court’s scrutiny.

If the D.C. Circuit upholds the rule and it goes to the Supreme Court before a new justice is confirmed, a 4-4 split from the court would uphold the lower court’s decision. If Obama or another Democratic administration appoints the next justice, the court may also shift to uphold the rule.

Conversely, if the D.C. Circuit knocks down the rule, a 4-4 Supreme Court split would keep that decision in place, or a Republican appointee to the court could represent a fifth vote on the high court to vacate the regulation.

Another wrinkle could be the timing of a potential Srinivasan nomination. If he were nominated after he hears and rules on the Clean Power Plan case while it is at the D.C. Circuit, he would have to recuse himself from the case should it reach the Supreme Court.

Similar questions are now arising over the fate of major environmental rules currently being challenged in lower courts, including the Obama administration’s so-called Waters of the United States rule, tightened air quality standards for ozone and many others.

“There’s still a lot of uncertainty about what might happen to some of these cases depending on who eventually takes that seat,” Parenteau said.

Obama’s short list

The legal parlor game of who Obama may nominate is already in full swing.

He’s widely expected to pick someone fairly moderate and with stellar credentials, given that he’s facing an uphill battle to get anyone confirmed by a GOP-held Senate during an election year.

Many attorneys expect Srinivasan to be at the top of Obama’s list.

He was dubbed “The Supreme Court Nominee-in-Waiting” by New Yorker writer Jeffrey Toobin in 2013, and he has several important factors on his side.

He’s young, at 48, meaning Obama would be picking a nominee who could have a lasting impact on the court for several decades. He also has a limited record as a judge — having only served on the D.C. Circuit since 2013. That could play into his favor, as it means Republicans would have fewer decisions to dig into in opposition.

One of Obama’s previous picks to the Supreme Court, Justice Elena Kagan, similarly had a relatively short paper trail, having never served as a judge previously.

Lastly, the Senate voted 97-0 to confirm Srinivasan to the D.C. Circuit in May 2013.

Prior to joining the D.C. Circuit in 2013, he was principal deputy solicitor general during the Obama administration and previously worked for the law firm O’Melveny & Myers LLP. He was also a law clerk for former Supreme Court Justice Sandra Day O’Connor.

Among the many other names that are circulating as possible picks are D.C. Circuit Judge Patricia Millett, D.C. Circuit Chief Judge Merrick Garland, Attorney General Loretta Lynch, and 9th U.S. Circuit Court of Appeals Judges Paul Watford and Jacqueline Nguyen.