A Loss for Court and Country

On February 13, 2016, Justice Antonin Scalia passed away from natural causes.  Political rhetoric and American society polarized Justice Scalia’s opinions in life.  While he leaves a charged legacy, this Justice leaves a great void within the Supreme Court of the United States.

Justice Scalia was famously known for his judicial wit, lively persona, and a strong constitutional judicial philosophy.  Scalia was never known as a consensus builder on the court.  He was more well-known for his colorful dissents than his majority opinions.  Some of his more famous lines involving certain opposing arguments were: “pure applesauce.”[1]  A famous oral line of questioning occurred during the arguments for the Patient Protection and Affordable Health Care Act.  Scalia suggested an attorney’s logic might grant the government the power to “make people buy broccoli.”[2]  Scalia used colorful language and a forward, almost silly style to shed light on important logical and legal arguments.  In many ways, his use of language encouraged engagement with the American public, and held the attention of many young law students.

Scalia’s Environmental History

Many environmental proponents claimed Scalia was no friend of environmentally conscious judicial action (or inaction).  Scalia staunchly attacked and criticized the EPA’s regulations and their ways of applying statutory laws.  While suggesting Scalia was not a great friend to the environment might be generally accurate, it fails to give credence to Scalia’s judicial philosophy and analysis of each case.  His application of statutory law and constitutional principles during his time on the court prevented overreach and misuse of agency authority.  At least that’s what Scalia might say were he alive today.

At the beginning of his tenure some of the first rulings interpreted statutes to assist environmentally protective laws.  A 2001 opinion of his found that the Clean Air Act did not require the EPA to consider costs of implementation when creating the guidelines for the national ambient air quality standards.  Justice Scalia wrote that a section of the Clean Air Act, “unambiguously bars cost considerations from the NAAQS-setting process…”[3]  This case allowed the US EPA to design air pollutant controls upon health measures, rather than economic ones.  The case was found to be a tremendous victory for environmentalists.  In 1994, Scalia wrote the court opinion preventing the City of Chicago from dumping incinerator ash into landfills not permitted for handling hazardous wastes.[4]  Scalia analyzed a comprehensive hazardous waste statute, finding that when Chicago burned residential waste, the ash created by the city was a new hazardous waste.  The newly created hazardous waste was then subject to statutory requirements including disposal, reporting, and other types of extensive regulations.  However, these outcomes were not typical of Justice Scalia.

He was better known for interpreting environmental and energy issues in a way which hurt environmental protections and limited the EPA’s discretion.  In one of his first important environmental cases, an issue that needed to be addressed was one of public standing to sue.  In this 1992 decision, Justice Scalia limited the ability for individuals to sue administrative officials under the Endangered Species Act.  Essentially, Scalia suggested that a possible future threat of extinction in species is not imminent enough to grant an injury and thus standing.[5]  Justice Scalia took part in a somewhat split decision when interpreting the Clean Water Act.  The 2006 case attempted to reinterpret how the US EPA defined waterways within the US.  Justice Scalia, with four other justices, released an opinion which shrunk the definition. His opinion wanted to define waterways as “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features” rather than all interconnected bodies of water.[6]  While this case was a plurality decision leaving much open for debate, the decision written by Scalia created a reassessment about how the Clean Water Act protected water resources.

Justice Scalia also opposed the way the EPA enforced the Clean Air Act.  Scalia often believed that the EPA misinterpreted the authority of that act.  In Massachusetts v. EPA, the Supreme Court ruled that the EPA could regulate greenhouse gas emissions for motor vehicles.[7]  This case appears to be one of the biggest cases in a generation and this gives the EPA a great power to regulate carbon emissions.  Scalia joined the dissent.  The dissent, however, appears to go against a previously supported case, Chevron v. Natural resources Defense Council, IncChevron gave extensive agency deference when there was vague statutory guidance.[8]  Despite the dissent, the Obama administration took notice of the decision and is attempting to regulate greenhouse gas emissions for stationary sources.  This action led to another case involving the Air Toxics rule.  In Michigan v. EPA, Justice Scalia wrote the decision which decided that costs must be considered when the EPA is regulating certain regulated facilities under the Clean Air Act.[9]  This case seemed to be in contention with a prior decision, Whitman.  However, Justice Scalia used the statutory framework in that section of the Clean Air Act to attempt to avoid the inconsistency of Whitman.  Despite some obvious opposition, Scalia used his gifts of reason, logic, and writing to somewhat avoid that inconsistency.  In a sense, Justice Scalia continued his legacy of being strict in interpreting judicial statutes within the environmental realm.

Future for Successor

As always, the Supreme Court has very serious issues to consider in the future.  Many environmental interpretations are split very closely, and the successor to Justice Scalia will surely affect nearly all of the outcomes.  The Clean Power Plan is currently in litigation, and while a decision may not be ultimately decided for another year, a new appointee will be on the court to decide.  The Supreme Court voted 5-4 in favor of issuing a stay against EPA regulations.  That was unprecedented for the type of stay and that type of action is only allowed when there are serious constitutional concerns.  With a loss of Justice Scalia, the courts replacement may certainly hold the verdict in their hands.

Another important recent Supreme Court case addressed the longstanding Chevron Doctrine.  In King v. Burwell, the Supreme Court prevented the IRS agency action when applying a new part of the Affordable Care Act.[10]  The case ultimately suggested that the Chevron Doctrine may not be ironclad. The case stated that the doctrine does not apply when there are very important reasons to avoid agency interpretation of the statute.  Both of these two looming Supreme Court cases involve agency action, and serious environmental concerns.  Any Supreme Court nominee will surely affect the outcome of the court, our government, and the health of the planet.

At this time, President Obama has nominated Chief Judge Merrick B. Garland of the D.C. circuit court to fill Justice Scalia’s vacant seat.  The status of the political climate suggests this nomination is no guarantee.  While there are also no guarantees of how a justice will act once they are on the court, it does appear that Chief Judge Garland may support agency discretion.  He has sided with governmental agencies in many of his rulings.  In a third of the Chief Justices dissents, he has argued that agencies should have lenient discretion. [11]  This benchmark bodes well for the future of the EPA and subsequent presidential administrations.  The more leniency an agency has, the more discretion presidents have in fulfilling their agenda.  If Chief Justice Garland becomes appointed, it appears he would allow agencies and their presidential boss the discretion to do their jobs.  That is, of course, their jobs as they see fit.


[1] King v. Burwell, 135 S.Ct. 2480, at 2501 (2015).

[2] “National federation of Independent Business v. Sebelius.”  Oyez Chicago-Kent College of Law at Illinois Tech, n.d. Apr 4, 2016.  https://www.oyez.org/cases/2011/11-393.

[3] Whitman v. American Trucking Associations, Inc., 531 U.S. 457, at 471 (2001).

[4] City of Chicago v. Environmental Defense Fund, 114 S.Ct. 1588 (1994).

[5] Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992).

[6] Rapanos v. US, 517 U.S. 715, at 715 (2006).

[7] Massachusetts v. EPA, 549 U.S. 497 (2007).

[8] Chevron v. Natural resources Defense Council, Inc., 104 S.Ct. 2778 (1984).

[9] Michigan v. EPA, 135 S. Ct. 2699 (2015).

[10] King v. Burwell, 135 S.Ct. 2480 (2015).

[11] Page, Samantha, Think Progress, http://thinkprogress.org/climate/2016/03/16/3760853/garland-environmental-record/  April 4, 2016.