The Trump court and the erosion of environmental law

The confirmation of Amy Coney Barrett solidifies a conservative 6-3 majority on the Supreme Court and spells big trouble for environmental law in general and climate law in particular.  

Justice Kavanaugh has replaced Chief Justice Roberts, both of whom recently joined the court’s liberal wing to reject a damaging interpretation of the Clean Water Act, as the swing vote. That speaks volumes about the outcomes in future environmental and climate cases where votes will be hard to find.

The court has become a political institution. It has already been packed with three of Donald Trump’s appointees who are smart, conservative and most importantly, young. These appointments have been selected from the list approved by the Federalist Society. Their confirmation has been engineered by Sen. Mitch McConnell (R-Ky.) and his Republican colleagues, with no pretense of bipartisanship or adherence to Senate traditions. The result is a tectonic shift in the nation’s highest court, with profound implications for protection of public health, conservation of natural resources and, most importantly, confronting the existential threat of climate disruption. 

There are four specific areas where the doctrinaire conservative viewpoint could have a major impact. First is the Commerce Clause. Virtually all the nation’s environmental laws are grounded on Congress’s authority to regulate activities that affect interstate commerce. Basic things like protection of air and water, preservation of endangered species, regulation of hazardous wastes and pesticides, protection of historic and cultural treasures, and many more. 

The Commerce Clause is what Congress used to pass the Affordable Care Act (ACA) with its health insurance mandate. In a 2003 law review article Barrett argued that the ACA is an unconstitutional exercise of Congress’s Commerce Clause authority; and she has been very critical of Roberts’s decision upholding the law on the ground that the penalty for not complying with the mandate is a tax and Congress has broad taxing power.

Limiting Congress’s Commerce Clause power is a high priority for conservative groups like the Federalist Society, Cato Institute and the Chamber of Commerce. It has been at the center of attempts to invalidate the Endangered Species Act and reduce the scope of the Clean Water Act. Up to now those efforts have been rebuffed by the courts often by close margins. The Pacific Legal Foundation, which is a frequent plaintiff in these cases, must be licking their chops.       

The second is access to the courts. Barrett is likely to follow the lead of her mentor, the late Justice Antonin Scalia, or whom I referred to as the Darth Vader of environmental standing. In Lujan v. Defenders of Wildlife, Scalia set the bar very high for environmental plaintiffs challenging weak regulations as opposed to industry plaintiffs challenging strict regulations. In his dissent in Lujan, Justice Harry Blackmun characterized Scalia’s approach as a “slash-and-burn expedition through the law of environmental standing.” Ironically, it was Justice Ruth Bader Ginsburg, whom Barrett is replacing, who put a stop to this expedition in the Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. case, which held that plaintiffs need not prove actual injury to the environment as long they had a reasonable concern that the river they were swimming in was not being polluted by an industrial discharge.    

Standing is a particularly difficult hurdle for plaintiffs in climate cases because it impacts everyone and makes it hard to show the kind of particularized harm to an individual plaintiff that would satisfy Scalia. Even more problematic is the requirement that the relief sought must prevent or at least ameliorate the injury. This is where the separation of powers doctrine comes into play. A self-professed strict constructionist and originalist like Barrett is not going to entertain remedies that cross the line into policy making that is the province of the other branches of government — even when they are AWOL when it comes to addressing climate change.

Next comes revival of moribund doctrines like “nondelegation,” which is a vestige of the Franklin D. Roosevelt era and his efforts, including court-packing, to get his sweeping New Deal legislation passed and upheld by the court. Nondelegation means Congress cannot delegate legislative authority to agencies. It posits that the legislation must contain an “intelligible principle” to place a limit on agency authority. In Whitman v. American Trucking Associations, Inc., a unanimous court ruled, in an opinion authored by none other than Scalia, that the delegation of authority to the Environmental Protection Agency (EPA) to protect public health under the Clean Air Act provided the requisite intelligible principle.

More recently however, Justice Neil Gorsuch in a dissent joined by Roberts and Justice Clarence Thomas in Gundy v United States, strongly suggested that the “intelligible principle” test was too “forgiving” and strayed from “the original meaning of the Constitution.” And that “the Constitution does not permit judges to look the other way” when “constitutional lines are crossed.” In her article Nondelegation on Stilts, Professor Lisa Heinzerling describes how five of the current justices —  the Roberts as well as Samuel Alito, Gorsuch, Kavanaugh and Thomas have already signaled an interest in resurrecting the nondelegation doctrine, though exactly how they would do so is unclear.  

Finally, there is the “major question” doctrine, also known as the elephant in the mouse hole. This is the doctrine invoked to prohibit the Food and Drug Administration (FDA) from regulating tobacco in FDA v. Brown & Williamson. The doctrine has the effect of denying Chevron deference to an agency’s statutory interpretation where the rule in question has broad social and economic importance and Congress has not expressly delegated the authority with clear direction. The doctrine was employed by Scalia in UARG v. EPA to reject the agency’s interpretation that it had authority to regulate greenhouse gases from new sources unless the sources were already regulated for other pollutants. For the conservative majority the fact that Congress had not directly spoken to the issue of greenhouse gas regulation was a reason to overturn EPA’s interpretation.

When asked by Sen. Kamala Harris (D-Calif.) whether “climate change was happening” Barrett replied, “I will not answer that because it is contentious.” There is nothing contentious about the reality of climate change. There is virtually unanimous agreement among climate scientists that is happening, that it is human caused, and that failure to deal with it will result in catastrophic outcomes for humanity. 

Whether the Supreme Court will be an obstacle to the actions needed to avoid that fate is the real question.     

Patrick Parenteau is a professor of law at Vermont Law School.