New 2017-2019 EPA National Enforcement Initiatives
Courts Apply Increased Scrutiny to Efforts to Remand Environmental Class Actions to State Court

Frisbees, Flatulence and the Impact of Scalia’s Vacancy on Important Environmental Cases

Torrence_Allison_COLORBy Allison A. TorrenceSCOTUS


Supreme Court Justice Antonin Scalia undoubtedly had a significant impact on environmental law during his 30 years on the High Court. Known for his strong opinions and quotable prose, he often showcased both in opinions on environmental issues. One of my personal favorite quotes from Justice Scalia came in his strident dissent in the landmark GHG ruling of Massachusetts v. EPA. In his critique of the majority opinion, he argued that the majority’s reasoning would lead to the conclusion “that everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’” Massachusetts v. EPA, 549 U.S. 497, 558 (2007).

In a ruling without the flowery language, but with very significant impact on the regulation of GHGs, just four days before his death Justice Scalia joined with four other Justices to grant a stay of EPA’s Clean Power Plan while it is being challenged in the D.C. Circuit Court. The fate of the Clean Power Plan, and numerous other environmental laws and cases, is up in the air now that Justice Scalia’s death leaves only eight Justices on the Court, and little hope of the Senate approving a replacement in the next year. The eight Justices are generally evenly divided ideologically; with Chief Justice Roberts and Justices Kennedy, Thomas and Alito on the conservative side and Justices Ginsburg, Breyer, Sotomayor and Kagan on the liberal side. In the unlikely event that an Obama appointee is confirmed by the Senate, that person would, in all likelihood, shift the balance of the court to the left. If the Senate delays or otherwise denies confirmation of the appointee, as Republican leaders have vowed to do, the vacancy will be left to the next president to fill. Under that scenario, the next Supreme Court Justice could shift the balance of the court to the liberal side, or back to the conservative side, depending on the outcome of the November elections.

So what does this all mean for environmental cases currently pending in the Supreme Court, or likely to be appealed to the Supreme Court in the near term? Here are a few thoughts on three of the most significant environmental cases making their way up to the Supreme Court.

  • Clean Power Plan: Before Justice Scalia’s death, the chances of the Clean Power Plan surviving review by the Supreme Court intact seemed quite low. Now that the court is split 4-4, there is a good chance that the Clean Power Plan will be upheld. The D.C. Circuit is more likely than not to uphold the Clean Power Plan, as it has generally upheld the Obama EPA’s regulations over the past several years. The D.C. Circuit has promised a ruling by June of this year, at which point it will be ripe for appeal to the Supreme Court and could be heard next term. If the D.C. Circuit upholds the Clean Power Plan, and the Supreme Court is split 4-4, the regulations will stand. However, the Supreme Court could delay any decision on these controversial regulations until it has its full nine members, to avoid upholding the rules by default. If that were to happen, the fate of President Obama’s Clean Power Plan will essentially be determined by the presidential election.
  • Waters of the United States: The Sixth Circuit has issued a stay of the controversial Waters of the United States Rule, and a few days ago determined that it had proper jurisdiction to hear legal challenges to that rule (bypassing federal district court review). The Waters of the United States Rule was drafted jointly by EPA and the Army Corps of Engineers, largely in response to the Supreme Court’s plurality decision in Rapanos v. U.S., 547 U.S. 715 (2006). The Clean Water Act gives EPA and the Army Corps of Engineers authority over “waters of the United States” and the agencies have been trying to define precisely what type of waters the Clean Water Act is intended to cover for many years. In Rapanos, a plurality of Justices joined Justice Scalia (who authored the plurality opinion) in ruling that the existing Army Corps rules interpreting the statutory term “waters of the United States” were overly broad. Four of the more liberal Justices dissented, arguing that the agency’s interpretation was reasonable. The latest regulations trying to define “waters of the United States” are once again facing challenges that claim the rules are too expansive. If there is another liberal Justice on the Supreme Court when the litigation challenging the rules is before the High Court, there will be a majority of Justices that are more inclined to defer to the executive agencies’ discretion and the rule will have a good chance of being upheld.
  • Review of Clean Water Act Determinations: In another case dealing with the Clean Water Act, S. Army Corps of Engineers v. Hawkes Co., Inc., the Eighth Circuit has found that courts have the right to review Army Corps determinations of whether a body of water is a “water of the United States” and therefore regulated under the Clean Water Act. The Supreme Court granted certiorari to review the Eight Circuit decision in December 2015, and the case is set for argument on March 30, 2015. Once again, Justice Scalia had authored a previous opinion in a case dealing with issues similar to the current appeal, Sackett v. EPA, 132 S.Ct. 1367 (2012). In Sackett, the Court ruled that EPA administrative compliance orders under the Clean Water Act were immediately reviewable pursuant to the Administrative Procedure Act. Unlike Rapanos, in the Sackett opinion, Justice Scalia wrote for a unanimous court (although Justices Ginsburg and Alito also wrote concurring opinions). Thus, Justice Scalia’s death and eventual replacement will not likely alter the Court’s thinking on these issues. The Supreme Court decided to hear the case probably due to a circuit split, with the Fifth Circuit ruling in 2014 that an Army Corps determination of jurisdiction was not a final agency action and not immediately reviewable. In light of the Court’s prior unanimous ruling in Rapanos, the Court will likely affirm the Eighth Circuit and rule that the Army Corps determinations are reviewable.

Of course, Supreme Court Justices do not follow strict party lines, as evidenced when Chief Justice Roberts wrote the majority opinion upholding the Affordable Care Act despite strong pressure from conservatives (and other conservative Justices) to overturn the landmark healthcare law. In addition, if a Republican wins the presidential election, that administration may seek to change some of EPA’s recent high profile regulatory actions. The EPA rules currently being challenged in the courts may be undercut or altered by a future administration, making the judicial review less significant. Nevertheless, the next Supreme Court Justice will certainly have an impact on the world of environmental law in the short and long term, and his or her ideology and history of rulings on environmental cases will be hotly debated in the candidate’s confirmation hearings.