Justice Souter and the Environment
The news that Justice Souter is leaving the Supreme Court probably means little for environmental cases. Souter has been a reliable environmental vote, joining the majority in Massachusetts v. EPA, the Court’s only case on climate change. He dissented with the liberal wing in Rapanos v. United States , the convoluted decision about the extent to which the Clean Water Act covers wetlands not directly adjacent to navigable waters of the United States. His environmental leanings weren’t always evident: he joined the majority opinion limiting environmental plaintiff standing in the 1992 opinion Lujan v. Defenders of Wildlife. But in recent years he’d become a consistent vote with the liberal wing of the Court, including in the Court’s most recent environmental case, Entergy v. Riverkeeper. Entergy involved a challenge by environmental groups to arcane rules governing the intake of water by power plants. Souter dissented from the majority opinion upholding an Environmental Protection Agency rule and holding that the agency could use cost-benefit analysis in promulgating the regulation. Although Souter has been a reliable vote he has not been an important environmental voice on the Court, authoring none of the most significant environmental cases in recent years.
Obama is likely to pick a Justice who will join the liberal wing of the Court and thus replace Souter’s vote. Whether the new Justice adds a distinctive voice to environmental cases remains to be seen.