How Scalia reshaped environmental law

By Jeremy P. Jacobs | 02/15/2016 01:17 PM EST

Justice Antonin Scalia had a monumental impact on environmental law. Scalia, who was found dead Saturday at a West Texas resort, wrote more than a dozen major decisions in his 30 years at the Supreme Court. His opinions sculpted fundamental aspects of environmental law, setting key precedents that continue to be loudly criticized by green groups.

Justice Antonin Scalia had a monumental impact on environmental law.

Scalia, who was found dead Saturday at a West Texas resort, wrote more than a dozen major decisions in his 30 years at the Supreme Court. His opinions sculpted fundamental aspects of environmental law, setting key precedents that continue to be loudly criticized by green groups.

With his sharply worded opinions and dissents, Scalia led the court’s conservative wing on limiting environmental groups’ ability to bring lawsuits, standing up for property rights in the face of regulation and the scope of federal water regulation.


More than other justices’, Scalia’s opinions had an enormous impact on the lower courts, shaping the way they viewed environmental cases.

He was a "judge who trusted his own intuitions," said Todd Aagaard, vice dean and professor at Villanova University School of Law, adding that could be a compliment or a critique.

Aagaard cautioned against characterizing Scalia as anti-environment, saying it is easy to "overstate" that aspect of his jurisprudence. Aagaard noted that at least two of his decisions could be considered pro-environment.

But he added that Scalia was frequently "following his nose, and often his nose did not like the environmental outcome."

Scalia was deeply interested in administrative law, which was one of the reasons he was prolific on environmental and property rights cases.

But unlike other justices, he typically separated the environmental impacts at stake in the case from the legal questions presented.

Scalia was a "powerful voice for the idea that environmental issues are nothing special, as far as the law is concerned," said Jonathan Adler, a professor at the Case Western Reserve University School of Law. "Indeed, he was almost disdainful of the idea that there was anything special about environmental questions."

Over the arc of his career, however, the anti-environmental position appeared to become Scalia’s default argument — a shift that is clear in later rulings that seem to contradict his earlier decisions.

"No [justice] has had more of a negative impact," said Pat Parenteau, professor at Vermont Law School.

Limits on ‘standing’

Scalia’s arguably most enduring and important opinions severely limited the ability of environmental groups to bring lawsuits challenging federal regulations and other actions.

Before Scalia arrived at the Supreme Court in 1986, there was no established standard for the concept of "standing" in environmental cases.

Standing refers to whether the party bringing the lawsuit has sufficiently showed it is directly "injured" by the policies at issue — a key legal hurdle in environmental cases.

In three opinions, Scalia put significant restrictions on whether environmental groups have standing to challenge myriad environmental protections.

Most importantly, the justice wrote in 1992’s Lujan v. Defenders of Wildlife that the environmental group lacked standing to challenge endangered species protections.

The ruling remains one of the most controversial in environmental circles.

"His opinion in Lujan v. Defenders of Wildlife regularized standing doctrine and appeared to place real limits on lawsuits brought by environmental groups and others representing those that benefit from regulations," said Justin Pidot, a former Justice Department environmental attorney who is now a professor at the University of Denver Sturm College of Law.

Scalia went onto to reaffirm that holding in two subsequent decisions — 1998’s Steel Co. v. Citizens for a Better Environment and 2008’s Summers v. Earth Island Institute.

Property rights

Scalia was also frequently the court’s biggest friend of property rights, especially in environmental cases.

He penned several opinions on regulatory "takings" — meaning instances where there was a dispute over whether the government was placing unconstitutional restrictions on the use of property.

Those decisions appeared shaped by the belief that the government must compensate individuals in circumstances where zoning or environmental protections would reduce their property values.

Scalia’s most important opinion on the issue was 1992’s Lucas v. South Carolina Coast Council.

The case concerned a South Carolina law that prevented a landowner from building houses on a barrier island. The state cited a 1988 law that was aimed at protecting the islands from erosion.

Scalia, writing for the court, held that the state law effectively rendered the landowner’s property valueless. The law, he said, amounted to an unconstitutional taking.

The ruling reverberated through the environmental community because it seemed to suggest severe limitations on any conservation measure. However, the reach of Scalia’s holding in Lucas was somewhat reduced by later decisions.

Scalia also wrote that permitting conditions for property development could also violate the Constitution’s takings clause.

In 1987’s Nollan v. California Coastal Commission, Scalia wrote that California must provide compensation to coastal property owners if it wanted to require them to maintain a pathway for the public to the beach.

And in 2012, Scalia ruled in favor of an Idaho family challenging U.S. EPA’s Clean Water Act compliance order that forbade them from developing their property. Scalia and the court held that the family had a right to challenge the enforcement action in court.

Evolution on deference

Scalia’s supporters are quick to point out that his opinions weren’t entirely against environmental regulations.

In the early phases of his career, he appeared to strongly support Chevron deference, the outcome of 1984’s Chevron USA Inc. v. Natural Resources Defense Council holding that if a law isn’t clear, a court must defer to an agency’s interpretation.

In 2001, for example, Scalia penned the opinion in Whitman v. American Trucking Associations that upheld EPA air standards.

Scalia wrote that because the Clean Air Act did not explicitly instruct EPA to consider implementation costs, it need not do so.

And in 1994’s City of Chicago v. Environmental Defense Fund, Scalia also backed the regulation of fly ash emissions by municipal incinerators.

However, Scalia appeared much less willing to defer to agencies, in particular EPA, the longer he was on the bench.

"More recently, Scalia’s environmental decisions seem more results-oriented," Pidot said.

In the past two years, Scalia has twice written opinions sharply criticizing EPA’s Clean Air Act interpretations.

In 2014, for example, he trimmed EPA’s greenhouse gas permitting authority in an opinion that many believed foreshadowed his disapproval of President Obama’s Clean Power Plan to regulate carbon dioxide emissions from power plants to address climate change (Greenwire, June 23, 2014).

And last year, Scalia sharply criticized EPA for not considering costs in developing air standards for mercury and other hazardous pollutants.

In that case — as in the Whitman case earlier — the law itself was silent on whether EPA must consider costs.

In Whitman, Scalia said the agency didn’t need to. In the mercury case, Scalia wrote that it is "unreasonable" for EPA not to consider costs in determining whether the regulation was "appropriate and necessary" (Greenwire, June 29, 2015).

Daniel Farber, an environmental law professor at the University of California, Berkeley, said Scalia’s rulings in the mercury case and the earlier greenhouse gas permitting lawsuit are the only instances in the history of the Supreme Court where it has struck down an agency’s interpretation as unreasonable under Chevron.

"For better or worse," Farber wrote in a blog post, "he shaped current legal doctrine in fundamental ways."

Reporter Robin Bravender contributed.