By Ken Kimmell, Union of Concerned Scientists
Battle lines over President Trump’s nominee for a new US Supreme Court justice are now being drawn, as they should be, over crucial issues such as a woman’s right to choose, health care, immigration, civil rights, and criminal justice. In past nomination fights, little attention has been paid to the court’s role in shaping environmental law and science-based regulation. But it would be a major mistake to overlook these issues now. The Supreme Court has an enormous impact on how US environmental laws are interpreted and enforced, and a new justice could tip the balance against science-based rules on climate change, clean air, and clean water.
This threat is especially potent now because the current court is composed of four conservative and four liberal justices who typically vote in their respective blocks, with retiring Justice Anthony Kennedy in the middle. Mr. Trump’s nominee is highly likely to align with the conservative block, and therefore to create a five-justice majority to take the court in a sharply rightward direction for decades to come. To get a sense of how much hangs in the balance for the environment, consider three cases decided in the past decade on 5-4 (or 5-3) votes in which Justice Kennedy sided with the majority.
EPA’s duty to address global warming
In 2007, the US Supreme Court issued a decision in Massachusetts v. EPA that many consider the most important environmental decision in its history. The court ruled that the term “pollutant” in the Clean Air Act included the heat-trapping gases that cause global warming. This ruling, which sounds obvious now, was momentous then; it required EPA to make a determination about whether these heat trapping gases threatened health and the environment, and if so, to regulate them under the Clean Air Act. The ruling was the legal foundation for the bulk of the climate action plan issued by President Obama in 2013, and the key regulations to implement that plan (limits on carbon dioxide from power plants, controls on methane leaks from oil and gas operations, and EPA fuel economy standards for cars and trucks). The ruling enabled President Obama to offer an ambitious US emissions reduction pledge to the world which, in turn, made possible the Paris climate agreement.
This case was decided on a 5-4 vote, with Justice Kennedy joining four liberal justices. Justice Kennedy’s “swing vote” was therefore a lynchpin to the federal government’s necessary push to address climate change.
Three of the four the dissenters to that ruling (Roberts, Alito and Thomas) are still on the court, and the fourth dissenter (Scalia) has been replaced by the like-minded Neil Gorsuch. If President Trump picks a Supreme Court nominee aligned with the four dissenters, as seems highly likely, that decision—and with it EPA’s authority to address climate change—stands at risk, either of being overruled directly, or chipped away at via subsequent court decisions. In other words, a newly constituted court could damage the federal government’s fledgling efforts to address climate change at least as seriously as the EPA under Scott Pruitt tried to do—and that is saying a lot.
The role of science in water protection
In the key 2006 Supreme Court case Rapanos v. United States, a landowner was sued by the federal government for filling a wetland, but contended that the government did not have jurisdiction over his land under the Clean Water Act. The case raised a recurring question—does the Clean Water Act apply only to standing bodies of water such as rivers, perennial streams, ponds and lakes, or does it also protect upstream wetlands and intermittent tributaries? The court’s decision was complex and confusing, as four conservative justices opted for a restrictive test for federal jurisdiction and four liberal justice supported a more expansive test. Justice Kennedy issued a concurring opinion that eschewed the jurisdiction line that the four conservative justices promoted, noting that wetlands and intermittent tributaries can have significant effect on downstream water bodies. His opinion was a paean to good science; he reasoned that to exclude these lands would conflict with the overall purpose of the Clean Water Act. As he wrote:
Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular. To give just one example…nutrient-rich runoff from the Mississippi River has created a hypoxic, or oxygen-depleted, “dead zone” in the Gulf of Mexico that at times approaches the size of Massachusetts and New Jersey [and] scientific evidence indicates that wetlands play a critical role in controlling and filtering runoff.
In Justice Kennedy’s view, upstream wetlands and tributaries could be regulated, if they had a “significant nexus” to the downstream waters. Ultimately, science, and not arbitrary lines, would determine the issue of jurisdiction.
Unfortunately, the question of federal jurisdiction has not been settled. The Obama administration issued a rule that tried to clarify the question, but that rule was put on hold by the courts and is slated for repeal. So, more litigation is likely, possibly before the Supreme Court, and the question is this: Will a replacement justice demonstrate the same respect for science when considering the issue? If not, we could be left with a highly restrictive interpretation of the Clean Water Act that does not do justice to the complex science involved and fails to ensure clean water.
Drawing the line on governmental compensation for environmental regulations
The constitution provides that government may not take private property unless there is a lawful purpose and the government pays compensation to the landowner. The provision was put place to prevent physical seizures of property, but it has long been understood that sometimes a government regulation can be deemed a “taking” if it “goes too far” by leaving the landowner with no viable use of the property.
This was the issue in the Supreme Court tackled in the 2017 case Murr v. Wisconsin. In the case, a landowner who owned two adjacent riverfront lots claimed that environmental restrictions prevented him from developing the lots and wanted the government to compensate him for “taking” one of the lots even though the landowner could combine the two undersized lots into one larger, buildable one.
In that case, the court decided that it did not need to treat the two lots as separate, but instead would look at the value of the property with the lots combined. The court then ruled that the state had not “taken” the landowner’s property, because the owner still had viable use of it by combining the two lots.
Here again, the court split in a 5-3 decision, with Justices Alito, Thomas and Roberts dissenting, and Gorsuch not participating (presumably because he joined the court too late to do so). The case is important because, for those who favor radical deregulation, the takings clause could be a potent weapon when applied expansively. As the former Supreme Court justice Oliver Wendell Holmes once said: “Government hardly could go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law.”
These three cases illustrate the importance of the Supreme Court in environmental law, the court’s deep division on ideological grounds, and the key role Justice Kennedy’s independent vote has played. A new conservative justice is highly likely to tip this very delicate balance in ways that threaten continued progress on climate, clean air, and clean water. In addition to undermining the fragile decisions in the case above, the court will likely rule on many new cases of major environmental import. In the next term, for example, the court will take up the authority of the Fish and Wildlife service to designate “critical habitat” areas on private land to protect endangered species. Further down the road, if the Trump administration follows through on its threat to try to take away the right of California and other states to establish their own global warming emissions standards for cars and trucks, no doubt the court will be asked to weigh in on this crucial question.
Given how much is at stake, the public debate over the next nominee needs to include these issues. Just as nominees should be thoroughly questioned on a woman’s right to choose and civil rights issues, the nominee’s record on matters of science and environmental regulation deserves careful scrutiny. Senators should be prepared to ask probing questions, such as whether the nominee considers Mass. v. EPA to be “settled law” and therefore disfavored from being overruled under the doctrine of stare decisis. More generally, a robust discussion about whether the nominee accepts the scientific consensus on climate science, and whether and how a judge should consider scientific evidence in statutory interpretation, is needed. If this scrutiny reveals the nominee to be hostile to science-based regulation, this should establish a bright line which senators should refuse to cross.