Justice Scalia and Environmental Law, Part II: Takings and Administrative Law

Posted on June 9, 2016 by James May

Justice Scalia’s jurisprudence had a huge impact on environmental law. Part I focused on standing. This short piece addresses his impact on takings and Administrative Law.

Takings

Modern takings jurisprudence is also Justice Scalia’s handiwork. He, more than any other Justice, was inclined to find government regulation – particularly that which serves environmental ends – “goes too far” and thus constitutes a regulatory taking warranting just compensation. In Lucas v. South Carolina Coastal Council, he held for the majority that a state law designed to protect barrier islands constituted a compensable taking when it had the effect of depriving a developer of what he considered to be all economic use. And in Nollan v. California Coastal Commission, Justice Scalia—again for the majority—held that a requirement that a shorefront property owner maintain a public pathway to a public beach was “illogical” and constituted a compensable taking.

Justice Scalia’s jurisprudence makes policymakers think twice about regulating in the environmental realm.

Deference to Agency Rulemaking

Justice Scalia was consistently skeptical of environmentally-protective interpretations by federal agencies, especially those by EPA. In Rapanos v. EPA, writing for a plurality of the Supreme Court, he rejected the Army Corps of Engineers’ interpretation of the Clean Water Act’s term “navigable waters” to include temporally-saturated areas, instead insisting on a direct surface water connection to a water that is “navigable in fact.” Likewise, he joined the Court’s decision in SWANCC v. Army Corps of Engineers, holding that Congress did not intend to permit the Corps and EPA to regulate dredging and filling of isolated ponds and wetlands that are not adjacent to otherwise navigable waters, under what was known as the “migratory bird rule.” Most recently, in Michigan v. EPA, he wrote for the majority to invalidate EPA’s mercury and toxics rule, finding it unreasonable “to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.” And shortly before he died, he joined four other justices to order a stay of EPA’s Clean Power Plan.

Yet Scalia was more inclined to defer to EPA interpretations that were less environment-minded. For instance, in Entergy v. Riverkeeper, he wrote on behalf of the majority to uphold EPA’s use of cost-benefit analysis in assessing “best technology available” for minimizing the adverse environmental effects of cooling water intake structures under section 316(b) of the Clean Water Act. Likewise, he dissented in EPA’s favor in Massachusetts v. EPA, voting to uphold the agency’s decision at that point that greenhouse gases are not “air pollutants” under the Clean Air Act.

Early during his tenure on the bench, however, Justice Scalia seemed more inclined to endorse the edict from Chevron U.S.A., Inc. v. NRDC, to defer to “reasonable” statutory interpretations from mission-oriented agencies. For example, in EDF v. Chicago, Scalia on behalf of the Court upheld EPA’s interpretation under the Resource Conservation and Recovery Act that “solid waste” includes ash from municipal waste incinerators. And then in dissent he decried the result in U.S. v. Mead Corp., where the Court strayed from the Chevron standard by granting only “power to persuade” as opposed to “reasonableness” deference to agency interpretations that are not the result of a deliberative process.

Last, Whitman v. American Trucking stands as a bit of an outlier to Scalia’s seeming antipathy to EPA’s reach, in which his majority opinion upheld as an “intelligible principle” under the non-delegation doctrine Congress having EPA establish national ambient air quality standards that are “requisite” to protect human health and the environment.

Justice Scalia’s views on deference to rulemaking gave agencies – except for EPA – more leeway. For further reading on these subjects, please see Principles of Constitutional Environmental Law.

Justice Scalia and Environmental Law, Part I: Standing

Posted on June 9, 2016 by James May

Justice Scalia’s jurisprudence had a huge impact on environmental law. Part I focuses on standing. Part II (a forthcoming post) then turns to takings and Administrative Law.

Standing 

Justice Scalia’s most lasting legacy on environmental law is how his jurisprudence makes it more difficult for environmental plaintiffs to demonstrate constitutional standing under Article III of the Constitution. Since at least Sierra Club v. Morton, plaintiffs needed to show that they possessed an “injury in fact,” which could be commercial, economic, aesthetic, or environmental. Raising the bar, Scalia stated that plaintiffs must demonstrate at an “irreducible minimum”: (1) imminent and concrete “injury-in-fact” that is (2) fairly “traceable” to the defendant’s actions, and (3) “redressible” by the court. Applying this standard, Scalia found standing lacking in Lujan v. National Wildlife Federation, because using land “in the vicinity of” affected federal land wasn’t sufficient, and in Lujan v. Defenders of Wildlife, due to the absence of what has come to be known as “tickets in hand” to return to the places of alleged injury. Dissenting in Defenders of Wildlife, Justice Blackmun, bemoaned Scalia’s new requirements as “a slash-and-burn expedition through the law of environmental standing.”

Justice Scalia then dissented in Friends of the Earth v. Laidlaw Environmental Services v. EPA, when the majority held that it is injury to the person, and not the environment, that matters in standing analysis. There, he complained that the majority had proceeded “to marry private wrong with public remedy in a union that violates traditional principles of federal standing—thereby permitting law enforcement to be placed in the hands of private individuals. I dissent from all of this.”

Justice Scalia was skeptical that the effects of climate change could ever support standing, even for states. Speaking from his dissent in Massachusetts v. EPA, Scalia would have found that petitioning states lacked standing to challenge the U.S. Environmental Protection Agency’s (EPA’s) failure to institute rulemaking to regulate greenhouse gas emissions from stationary sources, thereby rejecting that states are entitled to “special solicitude” in standing analysis.

Justice Scalia was more inclined to find standing when litigants challenged environmentally-protective agency action. For example, writing for a plurality, he found that alleged injury to economic interests to water districts and to corporate ranching and agricultural interests was sufficient injury in Bennett v. Spear. Moreover, he held that homeowners possessed both standing and a cause of action to challenge an EPA-issued but not enforced administrative compliance order in Sackett v. EPA.

Concur or not, Justice Scalia’s standing test took hold and stands firm. For further reading on this subject, please see Principles of Constitutional Environmental Law.

Children’s Crusade to Combat Climate Change Continues

Posted on April 18, 2016 by Rick Glick

As reported by Seth Jaffe in this space, a federal magistrate judge in Oregon has kept alive the dreams of a group of young plaintiffs—aided by environmental advocacy groups—to compel government action against climate change.  Like a similar case brought by the same plaintiffs a few years ago in state court, discussed below, the federal case seeks a declaration that government inaction violates the public trust.  But in the federal case, plaintiffs added claims that their constitutional rights to life, liberty and property also are being violated.

The judge denied the government’s motion to dismiss on the basis that the matter is a political question better left to Congress.  Magistrate Judge Thomas M. Coffin reasoned that the pleadings were adequate on their face and that the substantive issues raised by the defendants should await motions for summary judgment or trial.  Still, the judge gave hope to the plaintiffs, which, I think will be short lived.  Climate change is simply too big, diffuse and complex an issue for the courts to try to fashion a remedy around.

This same group of plaintiffs has had mixed success in pursuing its objectives at the state level.  In June 2014 I posted about the Oregon Court of Appeals reversing and remanding a trial court’s dismissal of a similar claim against the state.  The appellate court concluded that the plaintiffs were entitled to a determination whether the atmosphere is a public trust resource and whether Oregon state government had breached its fiduciary responsibility by not adequately protecting it.  On remand, Lane County Circuit Court Judge Karsten H. Rasmussen granted the state summary judgment and dismissed the suit with prejudice.  The case is now again pending before the Court of Appeals.

In his 19-page opinion, Judge Rasmussen concluded that the public trust does not extend to the atmosphere.  The contours of the public trust are a matter of state common law, and Oregon law ties the public trust to title and restraints on alienation.  The court concluded that there could be no title in the atmosphere and therefore public trust fiduciary obligations do not exist.  The court also noted that traditional public trust resources, such as submerged lands, are exhaustible, which under Oregon law confers a fiduciary responsibility on the state.  While the atmosphere may be altered or even damaged, the court found that it is not exhaustible.

The court added the following thought, which I think will guide the U.S. District Court when it hears the current case:

The Plaintiffs effectively ask the Court to do away with the Legislature entirely on the issue of GHG emissions on the theory that the Legislature is not doing enough. If "not doing enough" were the standard for judicial action, individual judges would regularly be asked to substitute their individual judgment for the collective judgment of the Legislature, which strikes this Court as a singularly bad and undemocratic idea.

            Watch this space for further developments in Oregon state and federal courts.

A Substantive Due Process Right to Climate Change Regulation? What’s a Lonely Apostle of Judicial Restraint To Do?

Posted on April 13, 2016 by Seth Jaffe

Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust Mosaic_of_Justinianus_I_-_Basilica_San_Vitale_(Ravenna) (1)case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per million by 2100, should not be dismissed.

The complaint here is similar to, but broader than, others of its ilk.  As we noted previously, at least one federal court has already held that there is no public trust in the atmosphere.  Perhaps in response to that case, the plaintiffs here appear to have focused their arguments on the government’s public trust responsibilities with respect to various waters of the United States, though the opinion does not make clear precisely what the complaint alleges to be the subject of the public trust obligation.

The plaintiffs not only allege that the United States has violated its public trust obligations, but that that violation in turn constitutes a violation of the plaintiffs’ substantive due process rights.  Magistrate Judge Coffin takes pains to make clear that this is only about a motion to dismiss, but I still think he got it wrong.

Indeed, I think that Magistrate Judge Coffin ignored that well known latin maxim:  “Oportet te quasi ludens loqui.” (Which is how the on-line translator I used translated “You must be joking.”  I hereby disclaim any warranty that this is even close to correct.)

Call me old-fashioned, but I believe in judicial restraint.  And that applies to everyone.  Traditionally, conservatives have accused liberals of judicial activism.  To my totally objective mind, in recent years at least, it is the conservative judges who could more fairly be called activist.  For one case, at least, the shoe seems to be back on its original foot.  I just cannot see this decision standing.  The District Judge should reject Magistrate Judge Coffin’s Findings and Recommendation.  If he or she doesn’t, this case is sufficiently novel and important to warrant interlocutory appeal, and the 9th Circuit should reverse.  And if that doesn’t happen, it will be up to the eight (oops, I meant nine) members of the Supreme Court to get it right.  One of them surely will.

Petitioner Beware: A Shift in Industry Standing Doctrine in the D.C. Circuit

Posted on November 17, 2015 by Ray Ludwiszewski

In a string of recent decisions, the U.S. Court of Appeals for the District of Columbia Circuit appears to be shifting away from the long-standing general presumption that standing is self-evident for target entities  of a regulatory program — Coalition for Responsible Regulation, Inc. v. EPA, Grocery Manufacturers Ass’n v. EPA, Alliance of Automobile Manufacturers v. EPA, and Delta Construction Company v. EPA.  

In Coalition for Responsible Regulation v. EPA, the D.C. Circuit held industry had “failed to establish that the [Greenhouse Gas] Rules caused them ‘injury in fact,’ [or that] injury … could be redressed by the Rules’ vacatur.” The court found that although “Industry Petitioners contend[ed] that they are injured because they are subject to regulation of [GHGs],” they lacked standing because several aspects of “the … Rules … actually mitigate Petitioners’ purported injuries.”

In Grocery Manufacturers and Alliance of Automobile Manufacturers, EPA decisions concerning the ethanol regulatory program were challenged by a multitude of trade groups – automakers, oil companies, food suppliers – each claiming  its  members were harmed by the regulations.  In twin decisions separated by over two years, the D.C. Circuit held  none of this broad universe of industry petitioners had standing to challenge EPA’s actions.   

In Delta Construction Company v. EPA, the D.C. Circuit held all petitioners lacked standing to seek remand of EPA’s Greenhouse Gas (“GHG”) emission standards for heavy-duty trucks.  Some Petitioners had attacked the Rule because the emission standards would drive up the price of the trucks they purchased; another Petitioner alleged the rule made its products—modified diesel engines to run on vegetable oil —“economically infeasible.”  The Court found the Purchaser Petitioners’ standing failed on both the causation and redressibility prongs of the standing test.  The Manufacturer Petitioner was determined not to fall within the “zone of interests” intended to be protected by the Clean Air Act. 

These four D. C. Circuit rulings all found technical defects in the industry petitioners’ standing.  They may signal a lasting shift away from the basic  assumption that a regulated industry has standing to challenge regulations aimed at its activities.  

Given this new, strict scrutiny of industry standing, practitioners would be well advised not to take for granted the standing of their clients.  In the docketing statement for a regulatory challenge, industry counsel should substantively focus on the “brief statement of the basis for the … petitioner’s claim of standing” and reference materials in “the administrative record supporting the claim of standing.”

Should Watersheds Have Standing? Should Corporations?

Posted on November 24, 2014 by Seth Jaffe

In his seminal essay in 1972, Christopher Stone famously asked “Should Trees Have Standing?” Apart from Justice Douglas’s dissent in Sierra Club v. Morton, the idea has never gained much traction, at least in United States courts.  Now, due to the passage of a “Community Bill of Rights” ordinance by the Grant Township (Pennsylvania) Supervisors, the concept is about to get a legal test.

It appears that the ordinance was drafted by the Community Environmental Legal Defense Fund, and the Supervisors have retained CELDF to defend the ordinance against a challenge by the Pennsylvania General Energy Company, which apparently wants to dispose of fracking wastewater in Grant Township.

According to the complaint challenging the ordinance, the ordinance does not just enshrine nature with rights; it would deprive them to corporations.  Allegedly, the ordinance states that corporations challenging the ordinance are:

not deemed to be ‘persons,’ nor possess any other legal rights, privileges, powers, or protections which would interfere with the rights or prohibitions enumerated by [the] Ordinance.

Good luck defending that one in court.  Call me an old-fashioned anthropocentric, but I prefer defending protections for natural systems and the environment on the ground that such protections are good for people.

A SWING AND A MISS -- The First Reported Challenge to Water Quality Trading is Dismissed for Lack of Standing

Posted on January 24, 2014 by Allan Gates

EPA has touted water quality trading for more than a decade as a viable tool for combating water pollution, particularly pollution due to excess nutrients and sediment.  But the Clean Water Act contains no express authority for water quality trading or offsets, and some environmental groups view trading as a “license to pollute” that violates the Clean Water Act’s promise to eliminate the discharge of pollutants into waters of the United States.

Last month a federal district court issued a final ruling in the first reported challenge to the legality of water quality trading.  The court dismissed the action without reaching the legality of water quality trading.   Instead, the court held that the plaintiff environmental groups (Food and Water Watch and Friends of the Earth) lacked standing and that EPA’s  “authorization” of trading in the Chesapeake Bay TMDL was not a final agency action.  Food and Water Watch v. EPA, No. 1:12-cv-01639 (D.D.C. decided December 13, 2013).

Although the court’s decision did not address the substantive legality of water quality trading, the case still presents four interesting aspects that may prove instructive on what to expect in future challenges.

First, environmental groups split over the question of joining the challenge to water quality trading.  It is widely rumored that Food and Water Watch actively solicited support from environmental groups involved in Chesapeake Bay issue but met with stiff resistance. It appears that the other environmental groups’ support for the Chesapeake Bay TMDL overrode any interest they might otherwise have had in supporting a challenge to the legality of water quality trading.

Second, the defense of water quality trading made for strange bedfellows.  Three parties intervened as defendants.  One was a group representing municipal point source dischargers who support the Chesapeake Bay TMDL (National Association of Clean Water Agencies).  Two were non point source groups who are actively challenging the legality of the Chesapeake Bay TMDL in another case (American Farm Bureau and National Association of Home Builders).  The non-point source representatives argued that the trading component of the Bay TMDL would be important and valuable to their members if their challenge to the validity of the Bay TMDL in the other case was unsuccessful.

Third, the court’s decision on standing, ripeness, and the question of final agency action suggests it may be difficult to litigate the basic legality of water quality trading until a program is fully established and permits allowing credit for trades are issued.  EPA argued successfully that no actual or imminent injury to the plaintiffs was caused by the Chesapeake Bay TMDL’s express reference to trading as a means for meeting the waste load allocations.  According to this argument, the TMDL did not compel any trades; it simply acknowledged that states in the Chesapeake Bay watershed might use trading as a tool in developing permits that implement the TMDL.  Carrying this argument to its logical conclusion, one could envision the possibility that there would be no basis for private party standing to challenge the legality of a trading program until after a stream has been listed as impaired, a TMDL has been performed, a trading program has been established, and permits have been issued allowing credits for trades within the program.  Litigating the legality of water quality trading at such a late stage would presumably face a significant task in unwinding the momentum of such a fully developed administrative structure.

Fourth, given the success of EPA’s standing and ripeness arguments, it seems unlikely that there will be any definitive judicial ruling on the legality of water quality trading any time soon.  The partisan division in Congress makes clarifying legislative action even less likely.  As a consequence, EPA’s success in defending against the Food and Water Watch lawsuit may have the ironic result of postponing the day when states and permit holders will have a clear and definitive answer regarding the basic legality of water quality trading.

A Longer View of “Standing”?

Posted on July 26, 2013 by Nicholas Robinson

Environmental adjudication today is global. Fifty nations have established more than four hundred specialized environmental courts and tribunals, supplementing their courts of general jurisdiction. A new body of ecological jurisprudence, ripe for comparative law analysis, has emerged.

This world-wide phenomenon should not be surprising.  As the environment degrades (see UNEP GEO5), disputes arise and courts are engaged. Most nations have adequate environmental statutes, but problems fester with weak or corrupt enforcement. Courts put the teeth back into these laws.  Throughout South Asia, courts establish judicial commissions to oversee remediation of refuse dumps or abatement of acute pollution.  In China, a court in Quingzhen enforced a state-owned chemical enterprise from polluting drinking water and mandated remediation.  In Brazil, a rule-of-decision (in dubio pro natura) guides judges to protect nature when the merits are balanced or in doubt.   In the Philippines, the Supreme Court established a new, extraordinary, Writ of Kalikasan (nature). This precedent shifts the burden of proof to the party alleged to have and violated environmental law; the respondent must prove it has not harmed the environment and has complied with all laws.

Judicial decisions also enforce constitutional guarantees of environmental rights.  Of the 196 member states in the United Nations, 147 currently recognize a right to the environment comparable to human rights. Procedural access to justice was enshrined as Principle 10 in the 1992 United Nations Rio Declaration on Environmental and Development and has become a treaty of obligation across Europe (Aarhus Convention, 2161 UNTS 447).

In the United States, federal courts have shaped administrative law for two decades through environmental cases.  The United States inspired Principle 10 initially through the Administrative Procedure Act § 10 and the National Environmental Policy Act litigation, confirmed by the citizen suit provisions in federal statutes.  It is ironic that as most nations liberalize standing in environmental matters, the U.S. Supreme Court’s rulings are gradually restricting such access.  Although many state courts continue to liberalize standing, U.S. federal courts are out of step with trends worldwide.

Courts are crucial to realizing the objectives of environmental laws.  The Environmental and Law Court of New South Wales (Australia) boasts three decades of innovative environmental adjudication.  From the oldest of such courts, in New Zealand (1950’s), to the most recently formed court in Kenya (2010), courts provide prompt effective decisions.  Not all nations are responsive to environmental claims.  Courts in most Arab states have so far resisted reforms to provide access to justice, as has Russia. 

Environmental disruption is a gathering storm across the earth.  Courts, embedded in society, ignore environmental claims at the risk of proving Lord Denning’s maxim, “the delay of justice is a denial of justice.”  Early judicial action has a new gloss and remedies escalating ecological harm.  Delay aggravates the harm, rendering later remedies more costly and difficult.

In the majority of nations, the courts increasingly understand this reality. Will the U.S. Supreme Court join the laggard nations, and retard access to environmental justice?