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

ScaliaJustice 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, sent 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.”

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