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.



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