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Environmental Law Sans Scalia

The Huffington Post The Huffington Post 10/03/2016 Bennett L. Gershman
DOW CHEMICAL © Bill Pugliano via Getty Images DOW CHEMICAL

As the post-Scalia Supreme Court begins to recalibrate its balance, with or without a confirmed ninth Justice, one of the Court's most fiercely-contested areas of law -- in which Justice Scalia left very large footprints -- is environmental law. Justice Scalia, more than any other Justice, was the most aggressively anti-environmentalist on the court. He championed property rights over conservation and land use regulations, private development over polluters of air and water, and non-deference to government regulations limiting the ability of factories and refineries to contaminate the environment and endanger the health and safety of millions of Americans.
Indeed, based on recent events, it is clear that anti-environmentalists, companies that pollute the environment, and even anti-environment members of the Court, recognize that they have lost their strongest ally, and that in all likelihood there will be a restoration of a reasonable balance between protecting private property and protecting public health and safety. Consider the $835 million settlement by Dow Chemical two weeks ago in a class action lawsuit alleging that Dow conspired to fix prices for polyurethane, a widely-used industrial chemical. Dow was found liable in 2013 by a Kansas jury and petitioned the Supreme Court to review the judgment. The settlement, observers believe, is attributable to Dow's reasonable expectation that with Justice Scalia gone, a more unfavorable outcome is likely if the case went to the Court.
Similarly, the refusal last week by Chief Justice Roberts to block an Environmental Protection Agency regulation limiting emissions of toxic chemicals from coal-fired power plants is a clear signal that the Court will be less likely to follow Justice Scalia's feverish anti-environment crusade. Interestingly, in that same case, Michigan v. Environmental Protection Agency, decided last June, Justice Scalia wrote one of his most unprincipled and unprecedented decisions. In striking down EPA's regulation, Scalia ruled that the regulation unreasonably burdened coal and oil power plants because the regulation allegedly did not take into account the industry's costs of compliance. Justice Scalia argued that it is unreasonable "to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits." Justice Scalia was wrong. The EPA , as the four dissenting Justices carefully documented, in fact conducted several lengthy cost-benefit studies, and found that the economic benefits of its regulation would exceed the industry costs nine times over, by an average of $80 billion a year, to say nothing of the 11,000 fewer premature deaths that would result annually, and the many more avoided illnesses, in the absence of the regulation.
Moreover, in an upcoming case next month, U.S. Army Corps of Engineers v. Hawkes, Justice Scalia, who had earlier accused the US Army Corps of behaving "despotically," would almost certainly have sided with the defendant mining company against the government's claim that the Clean Water Act protects the wetlands on the company's property from being polluted. Recall Justice Scalia's inflammatory opinion in the controversial 2006 Clean Water Act case, Rapanos v. United States, in which he claimed that the Corps "exercises the discretion of an enlightened despot," disparaged the factors used by the Corp to guide its discretion, including "aesthetics," and added, bombastically, that the "immense expansion of federal regulation" over "swampy lands" would give the Corps jurisdiction over "half of Alaska and an area the size of California in the lower 48 States."
Too, Justice Scalia's death may have enormous implications on the fate of President Obama's Clean Power Plan. The Plan requires states to reduce greenhouse gas emissions from the electricity sector by 32 percent by 2030. Justice Scalia shortly before his death voted to stay the EPA rule even before any lower court heard arguments on it. It's unusual for the Supreme Court to block enforcement of a rule before any lower court even considered the merits. With Justice Scalia gone the odds have improved greatly that the Plan will survive.
Justice Scalia's 30-year tenure on the Court left a devastating mark on environmental law. He authored at least a dozen key decisions on environmental law. He consistently exalted property rights over reasonable land used regulations. In one of his most controversial decisions, Lucas v. South Carolina Coastal Council, he ruled that a state conservation law that prevented a landowner from erecting homes on a barrier beach to protect the beach from erosion was an unconstitutional taking of private property because it deprived the owner of all economic use. Presumably, under Justice Scalia's new "total takings" doctrine, there would have been no unconstitutional taking if the value of the property had decreased by 95 percent. In Nollan v. California Coastal Commission, Justice Scalia ruled that even if the government could deny a developer a permit, it could not impose "illogical" conditions on the development, even if the condition was clearly in the public interest, such as requiring the owner of coastal property to maintain a pathway to a public beach.
Justice Scalia, uniquely in environmental cases, disregarded the principle that courts should give considerable deference to an administrative agency's interpretation of a statute. That is the holding in the landmark case of Chevron v. USA Natural Resources Defense Council. But in three cases, the only instances in the Court's history where the Court gave no deference to the agency - Justice Scalia ruled in all three cases that the agency's interpretation of a statute should not be given deference because the agency acted arbitrarily. Not surprisingly, in all three cases the agency accused of behaving arbitrarily was the EPA.
Justice Scalia appears to have considered himself a special gatekeeper to the federal courts with a mission to bar environmental litigants from entering. In several cases Justice Scalia imposed severe procedural obstacles on plaintiffs who sought to raise environmental claims in a federal court. These plaintiffs, according to Justice Scalia, had to carefully articulate that they had so-called "standing" to bring their lawsuit - that they had suffered some cognizable injury. Not surprisingly, Justice Scalia applied his standing rules almost always to environmental groups challenging federal regulations. In one of his most controversial decisions, Lujan v. Defenders of Wildlife, he wrote that the plaintiffs lacked standing to challenge government projects overseas that might have caused injury to certain wildlife. The plaintiffs had visited the area, and complained that government construction projects were destroying the wildlife. Despite the fact that Congress authorized citizens to sue under the Endangered Species Act, Justice Scalia found that the plaintiffs had not shown enough proof that they suffered a tangible injury.
Justice Scalia's legacy in the environmental area is formidable. Had he lived, and assuming a continued conservative Court, the anti-environment doctrines he engineered probably would have been strengthened. Without him, environmental rules have a much better chance of surviving.

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