Scalia was Supreme Court’s leader on limiting environmental rules

A conservative legal foundation fears its winning streak may be over.


During Justice Antonin Scalia’s tenure on the Supreme Court, a conservative California-based legal foundation had six straight victories on property rights and Clean Water Act cases. The decisions bolstered private property owners’ ability to develop their land and restricted federal authority to protect waters and wetlands from being polluted or filled in. In the Pacific Legal Foundation’s biggest wins, the justices were split, 5-4 or 4-1-4. Scalia’s vote was essential for the firm’s favorable outcomes. With Scalia’s death last weekend, the Pacific Legal Foundation lost a powerful ally who showed deep enthusiasm for their cases, and who often took the role of writing the court’s decisions in their favor. “I do think it’s less likely that the Court will adopt additional restrictions” on the Clean Water Act, says Damien Schiff, a lawyer for the Pacific Legal Foundation

Former Supreme Court Justice Antonin Scalia.
U.S. Supreme Court
Scholars say Pacific Legal Foundation is justifiably concerned. “If you lose Scalia, there’s nothing subtle about that change,” says Richard Lazarus, a Harvard Law School professor and expert in environmental and natural resource law and the Supreme Court. Scalia was deeply skeptical about a broad interpretation of the Clean Water Act and greatly concerned about private property rights. “There was no one more forceful than Justice Scalia; a very powerful voice is now missing from the bench,” Lazarus adds.  

In his opinion in the 2006 Clean Water Act case known as Rapanos, one of the Pacific Legal Foundation’s biggest triumphs, Scalia criticized “the immense expansion of federal regulation of land use that has occurred under the Clean Water Act — without any change in the governing statute — during the past five Presidential administrations.”

Scalia’s death dims the Pacific Foundation's chances in a major environmental case on the horizon. The Supreme Court is expected to eventually review Obama’s Clean Water Rule, which has been stayed by a lower court. Significantly for the arid West, the rule would protect tributaries, no matter how frequently water flows in them, as well as some wetlands, ponds and ditches. "With Justice Scalia’s departure, it’s fair to say it’s more likely to be upheld," Schiff says. “The impacts will be principally in the West. It’s precisely in the areas that are dry most of the year that you have the most significant disputes about the Clean Water Act.”

The first test of the impact of Scalia’s absence on a Pacific Legal Foundation case may come even sooner. U.S. Army Corps of Engineers v. Hawkes Co. Inc. is scheduled for oral arguments next month. At issue is whether a company that mines peat moss in Minnesota can challenge the Corps of Engineers’ decision that wetlands on the company’s property are protected under the Clean Water Act. Schiff says he’s confident that even the current composition of the court will rule in Hawkes’ favor. Although that case centers on a dispute in Minnesota, the decision could have broad ramifications, especially in the West.

Harvard's Richard Lazarus says without Scalia on the court, Schiff may be disappointed. Even if the justices are divided on the case 4-4, they may decide to hold it until they have a ninth Justice.

Of course, it’s not at all clear how Scalia’s replacement will be decided. Obama has promised to nominate one, but the Senate must confirm any new justice, and some Republicans have said the decision should be left to the next president.

If Obama or a Democratic successor names a Scalia replacement, that new justice likely would be more sympathetic to a broader view of the Clean Water Act to place stricter protections on waterways and wetlands. That could mean that not only would the rule be upheld, but the Court could start siding with environmentalists who believe protections should go even further.

Scalia’s death also could have big implications for the Clean Power Plan, which Lazarus calls the “single most important environmental regulation ever.” The plan requires states to reduce greenhouse gas emissions from the electricity sector by about 32 percent by 2030. Just days before his death, Scalia provided one of the five votes necessary for the court to stay the rule. It was extraordinary for the Supreme Court to block a rule even before a lower court heard arguments on it. Without Scalia, the prospects that the rule will survive judicial review have improved significantly.

Scalia’s enthusiasm for environmental and property rights cases made the Supreme Court much more likely to take them up. Stanford University Law Professor Deborah Sivas recalls that 20 years ago, the Supreme Court was not very interested in environmental cases and instead deferred to federal agencies. That changed during Scalia’s nearly 20 years on the bench in large part because of his fervor. “Not only have they taken up a lot of cases, they’ve really gotten into the minutiae of the Clean Water Act and the Clean Air Act, and to a fair extent that was driven by Justice Scalia’s interest in playing around in that field,” says Sivas. Going forward, Sivas predicts the court will be less interested and take fewer cases.

Supreme Court Associate Justice Antonin Scalia testifies before the House Judiciary Committee's Commercial and Administrative Law Subcommittee on Capitol Hill May 20, 2010 in Washington, DC
Stephen Masker CC/Flickr

It wasn’t just environmental rules that Scalia scrutinized to see if the executive branch was overstepping its authority, but all sorts of executive decisions. The court is scheduled to hear arguments in April over Obama administration moves to stop the deportation of several million undocumented immigrants, largely parents of citizens or legal residents, and offer them a way to stay and get work permits. Scalia would have set a high bar to ensure the administration followed all proper procedures and didn’t usurp congressional power. Scalia’s death “could alter the calculus for all of those cases, because they too, often were very closely divided,” says Amanda Tyler, a University of California Berkley School of Law professor.

Scalia’s absence also makes it much less likely that the Supreme Court will decide against the California Teachers’ Union in a case the court already heard but has not yet decided. During oral arguments, Scalia seemed to side with the conservative majority for what looked likely to be a 5-4 decision to stop public unions from collecting fees from nonmembers. “It would have crippled the ability of unions to function because they’ve got to be reimbursed in some way,” says Stanford Law professor William Gould, a former chairman of the National Labor Relations Board.

As for the Pacific Legal Foundation, Schiff says his group is working on new strategies to come up with cases that will be attractive to a Supreme Court without Scalia.

Elizabeth Shogren is HCN's DC Correspondent.

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