Term went from ‘sleepy’ to stunning

By Robin Bravender | 06/10/2016 01:08 PM EDT

A Supreme Court term that started off as lackluster for environmental law enthusiasts has turned out to be one for the history books.

A Supreme Court term that started off as lackluster for environmental law enthusiasts has turned out to be one for the history books.

But unlike some other years when a series of sweeping rulings set new precedent in environmental law, the events that triggered the most shock waves and headlines this term weren’t opinions.

Rather, they were the death of one of the high court’s most dominant voices on environmental and administrative law, and an unprecedented move to block a landmark climate regulation while legal challenges were still pending in a lower court.


To be sure, the court did weigh in on some important energy and environmental cases this term, kicking off with a major decision to uphold a contentious energy conservation rule. The justices also weighed cases about an Alaskan moose hunter who wanted to ride a hovercraft in a national preserve and state power generation incentives, and last month decided a case about water permitting that was the term’s last outstanding environmental opinion.

Still, this term may be best remembered for one roller coaster of a week in February. On a Tuesday, the justices took the astonishing step of halting U.S. EPA’s Clean Power Plan. By Saturday, Justice Antonin Scalia — a pivotal vote on that and other environmental issues before the court — was found dead.

"The fact is … there were two stunning things that happened within Tuesday to Saturday," said environmental attorney and Harvard Law School professor Richard Lazarus. "Each one was a huge surprise."

Speaking to an audience of environmental lawyers the week before those events, Lazarus noted presciently, "The court tends to start out looking like it’s going to be sleepy, and by the end of the term they’ve got a lot of big hot-button issues."

Overall, Lazarus said in an interview, the term has been "unsettling because of the uncertainty it means about future litigation in the court."

With the ideological balance of the court hinging on the ninth justice, the future of environmental law — and everything else before the court — "seems more unknown than ever," Lazarus said. In the interim, he added, there has been a "lot of consensus" on the court as the eight remaining justices try to issue narrow opinions with broad majorities, including on some of the environmental cases decided since Scalia’s death, "which is welcome."

Here’s a look at the biggest events in environmental law this term:

Energy cases

In January, the justices issued an important decision upholding a controversial rule aimed at encouraging energy conservation.

The majority decision written by Democratic-appointed Justice Elena Kagan reversed a lower court’s decision that had knocked down a Federal Energy Regulatory Commission demand-response rule requiring that power users be paid for committing to scale back electricity use at times of peak demand.

The 6-2 opinion in the case, Federal Energy Regulatory Commission v. Electric Power Supply Association, was a win for the Obama administration, environmentalists and renewable energy backers who supported the FERC rule. Broadly, the ruling underscored the government’s power to regulate an evolving electric grid (Greenwire, Jan. 25).

In the court’s second case this term involving the reach of federal energy regulators, the justices ruled 8-0 in April that a controversial Maryland program to boost power generation was illegal. That ruling was narrow, however, and the Supreme Court stressed that it wasn’t intended to block states from encouraging new power generation (Greenwire, April 19).

Clean Power Plan stay and Scalia’s death

The justices stunned the legal world in February when they voted 5-4 — along ideological lines — to freeze the Clean Power Plan.

The Obama administration had called the request to halt the rule "extraordinary and unprecedented," since a lower court hadn’t even heard arguments in the case yet. The decision was widely viewed as an indication that the court was likely to strike down the rule (Greenwire, Feb. 9).

Of course, that all changed later that week when Scalia died. Now, the fate of the climate rule could be decided by whoever is ultimately confirmed to replace him on the bench.

The most remarkable thing the court did this term "was issue that stay," said Tom Lorenzen, a partner at Crowell & Moring representing opponents of the Clean Power Plan. "That has never happened before, and it only happened because Scalia was there.

"Now we’re waiting to see, who is that ninth justice going to be?" Lorenzen added.

"The identity of that ninth justice is going to determine whether the Clean Power Plan survives, whether or not the court will do more to rein in EPA — and not just EPA but executive authority generally" — or will give agencies more deference.

Alaska’s hovercraft-riding moose hunter

The justices took on a complicated case surrounding whether the National Park Service could ban an Alaskan moose hunter from riding his hovercraft in a national preserve.

The court issued an 8-0 decision in March that knocked down a lower court’s ruling that upheld the government’s ban but punted on some of the case’s complicated legal questions (Greenwire, March 22).

The case, which focused only on Alaska national parks, was viewed with interest by environmental attorneys but wasn’t seen as broadly influential.

"The hovercraft case is extremely narrow," said Sean Donahue, an attorney who represents environmental groups in cases before the Supreme Court.

Standing controversy skirted

One opinion closely watched by the environmental world came in a case that wasn’t directly related to environmental issues.

Spokeo Inc. v. Robins involved an individual — Thomas Robins — who sued the website operator Spokeo Inc., alleging that its site had published inaccurate personal information about him and violated the Fair Credit Reporting Act.

Central to the case was whether Robins had established legal standing to sue by showing he was injured by the company.

The issue of standing is a big one for environmental groups, which often want broad leeway in court to challenge policies based on things that can be tough to quantify — such as lost recreational opportunities or lost aesthetic value. The Natural Resources Defense Council filed an amicus brief to the court in the Spokeo case urging the justices to find that Robins had standing to sue.

In a 6-2 May ruling that largely dodged the issue, the justices sent that case back to a lower court to take another look at the standing question.

Justin Pidot, a professor at the University of Denver’s Sturm College of Law, said that case "had the potential to really ratchet up the requirements for a plaintiff demonstrating standing."

He said the court’s narrow ruling is an example "of the way the court is backpedaling or at least treading water in the moment in the aftermath of Scalia’s death."

Administration rebuffed in water case

Late last month, the justices issued a unanimous opinion siding with landowners and rejecting the Obama administration’s arguments in a case over clean water permitting.

The court ruled 8-0 that property owners can go to court to challenge determinations from the Army Corps of Engineers that development on their property requires costly permits under the Clean Water Act (Greenwire, May 31).

That case could have broad impacts because the corps issues thousands of such determinations each year. Perhaps even more noteworthy about that ruling was a concurring opinion from Republican-appointed Justice Anthony Kennedy, who wrote that "the reach and systemic consequences of the Clean Water Act remain a cause for concern."

Some saw his opinion as an invitation to launch further attacks against the Clean Water Act and against the Obama administration’s Clean Water Rule (Greenwire, May 31).

"He didn’t have to write that; he did," Lazarus said of Kennedy’s concurrence. "It’s pointed; it’s a little barbed."