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Justice Scalia and environmental law

Dan Farber, professor of law | February 17, 2016

Over the past three decades, Justice Scalia did much to shape environmental law, nearly always in a conservative direction. Because of the importance of his rulings, environmental lawyers and scholars are all familiar with his work. But for the benefit of others, it might be helpful to summarize his major environmental decisions. The upshot was to restrict EPA’s authority to interpret environmental statutes, make property rights a stronger bulwark against environmental protection, restrict the ability of environmental groups to go to court, and limit federal authority over rivers and wetlands.

Antonin Scalia

Justice Antonin Scalia

Administrative law.  The Chevron test says that an agency’s interpretation of a statute is entitled to deference.  It can be set aside only if it is contrary to an unambiguous statute or if it is an unreasonable interpretation of an ambiguous statute.  There are only three cases in which the Supreme Court has ever held that a statute’s interpretation of an ambiguous statute was unreasonable, all three written by Scalia: Whitman v. American Trucking, UARG v. EPA, and Michigan v. EPA.  In all three cases, the “unreasonable” agency was EPA.  To be fair, in American Trucking he did admit that another portion of the statute unambiguously required air -uality standards to be based solely on health effects, not cost.

Property rights.  Justice Scalia wrote two major opinions elevating property rights over land-use controls. In the Lucas case, he held that a government regulation is a taking if it completely blocks development or other economic use of the land. In the Nolan case, he held that even when the government would be justified in denying a permit completely, it can’t impose “logically unrelated” conditions on the permit, even if those conditions are in the public interest. In Stop the Beach Renourishment, he tried to freeze property law in place for all time by holding that a decision by a state supreme court reinterpreting state property law can be a taking.

Standing.  Justice Scalia wrote major opinions limiting standing for environmental groups. In National Wildlife FederationDefenders of Wildlife, and Summers v. Earth Island Institute, Scalia narrowed standing law, making it more difficult for environmental groups to sue.

Federal jurisdiction. In Rapanos,  a plurality opinion, Scalia attempted to cut back drastically on federal authority over wetlands and streams. Justice Kennedy, the swing voter, wrote a more nuanced opinion that gave the federal government more maneuvering room.

If Scalia had lived, he clearly would have pushed to expand on these precedents, further weakening environmental protection. For better or worse, he shaped current legal doctrine in fundamental ways.

Cross-posted from the environmental law and policy blog Legal Planet.

[Moderator’s note: For another take on Justice Scalia’s environmental legacy, see this blog post by Ethan Elkind, associate director of UC Berkeley’s Climate Change and Business Program.]

Comment to “Justice Scalia and environmental law

  1. Prof. Farber, President Eisenhower’s 1961 Farewell Address to the Nation included the following grave warning:

    “The prospect of domination of the nation’s scholars by Federal employment, project allocations, and the power of money is ever present – and is gravely to be regarded.”

    It is over 50 years later and a fact of life is that we failed to heed Ike’s warning, and we are now gravely threatened by the power of money over politicians (including Congress and SCOTUS)and intellectuals with the increasingly destructive consequences of global warming.

    Will and Ariel Durant’s most famous conclusion in their history of civilization also warned us in the same way, and institutional leaders keep proving that they never learn from the lessons of history.

    As you document, Justice Scalia’s and SCOTUS rulings are now creating a worst case scenario the human race may not survive.

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