As President Donald Trump trims his list of potential judges to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court, environmental lawyers speculate on how a conservative bench could reshape national policy.
“I think a tremendous amount is at stake with the new appointment,” William W. Buzbee, an environmental professor at Georgetown University Law Center in Washington, said on a phone call with Bloomberg Environment July 5.
“The U.S. has quite powerful and effective environmental laws and, frankly, they have not been weakened for decades. But a new Supreme Court can act as a resistant” against upholding precedent, Buzbee said.
Seventh Circuit Judge Amy Coney Barrett, Third Circuit Judge Thomas M. Hardiman, D.C. Circuit Judge Brett Kavanaugh, and Sixth Circuit Judge Raymond Kethledge are on Trump’s SCOTUS shortlist.
Kavanaugh is the only shortlisted judge with a lengthy environmental record. During his time on the U.S. Court of Appeals for the District of Columbia Circuit, the former clerk for Kennedy and President George W. Bush staff secretary earned the reputation for thwarting the Obama administration on climate change issues.
Trump is expected to announce his choice the evening of July 9. Confirmation hearings can last days or span months.
Legal professors argue a predominately conservative court could have implications not only on national environmental policy, but also on how the federal government and states interact on the issues for decades to come.
Clean Water Act
One prime area in which the Supreme Court could weaken environmental law would be narrowing the scope of the Clean Water Act, said Neal McAliley, an environmental law attorney at law firm Carlton Fields in Miami.
Kennedy’s concurrence in the 2006 case Rapanos v. U.S. is the most significant environmental opinion of his Supreme Court career, according to attorneys.
In Rapanos, the court split 4-4-1 over the scope of the “waters of the U.S.,” with Kennedy in the middle.
A water or wetland is considered “navigable waters” under the Clean Water Act if it has a “significant nexus” to “waters that are navigable in fact or that could reasonably be so made,” Kennedy wrote.
“With a new person in his seat, that seems to be a case where the court could go in a different direction,” McAliley said. “Presumably, more in the direction of the plurality opinion written by Justice Scalia.”
If that were to happen, he said, “The geographic scope of the Clean Water Act could be limited substantially, because the four justice plurality in Rapanos would have limited the waters of the U.S. to those with a relatively permanent surface water connection to truly navigable waters.”
Sarah Peterman Bell, a partner with the San Francisco office of Farella Braun & Martel LLP, said in an email to Bloomberg Environment that she could see a scenario in which a more conservative Supreme Court makes it harder for plaintiffs suing under the Clean Water Act to establish the “significant nexus” that Kennedy referenced in his concurrence in Rapanos.
Kennedy’s opinion turned out to be the linchpin for the Obama administration’s attempt, through the Clean Water Rule, to define what is meant by “waters of the U.S.,” or WOTUS.
The court also could affect similar cases that determine control over wetlands, she said.
“In this example, a more conservative court wouldn’t necessarily be overturning United States v. Riverside Bayview Homes Inc. or Rapanos, but it would be further narrowing what is meant by waters of the United States in the CWA,” she said.
In the 1985 Riverside case, the Supreme Court held that the federal government doesn’t have the power to control intrastate wetlands as federal waters.
It’s more likely that future Supreme Court decisions will chip away at standards and precedents established in prior Supreme Court decisions and the offspring of those opinions, Bell said.
Indirect Discharge Cases
Bell said she wouldn’t be surprised to see a more conservative court reject the idea of “indirect discharges” where the Clean Water Act regulates point source discharges that reach navigable water via groundwater.
Cases relating to indirect discharge recently were decided in the Fourth Circuit and Ninth Circuit Courts of Appeals.
In February, the Ninth Circuit Court of Appeals held in Hawai’i Wildlife Fund v. County of Maui, that the county violated the Clean Water Act when it allowed wastewater to be discharged into the ocean via groundwater without a permit.
In April, the Fourth Circuit held in Upstate Forever v. Kinder Morgan Energy Partners LP that a citizens’ group had an adequate claim for relief when it brought a Clean Water Act claim against the energy infrastructure company after gasoline released from a pipeline migrated into nearby creeks.
This could implicate or further narrow the plurality or concurring opinions from Rapanos discussing what jurisdictional waters are, Bell said.
The indirect discharge cases also implicate Gwaltney of Smithfield Ltd. v. Chesapeake Bay Found Inc., she added.
In Gwaltney, decided in 1987, the court held that there’s no Clean Water Act citizen lawsuit jurisdiction for past violations of the law, and violations have to be ongoing for there to be citizen lawsuit jurisdiction.
How the new justice interprets the concept of cooperative federalism—where federal, state, and local governments interact cooperatively to enforce the nation’s laws—will have an affect on interpreting environmental policy in the future, Georgetown’s Buzbee said.
“Attitudes of the administrative state matter a lot, because most of our environmental laws have the federal government in the driver’s seat,” Buzbee said. “But states can take over” on certain issues.
He gave an example of states having control over issuing permits under the Clean Water Act, while the federal government continues to issue regulations.
“That’s an area where a Supreme Court justice’s opinion can really matter,” he said.