Environmental Strategies for the Post-Kennedy Era

How do we make environmental progress despite an increasingly unsympathetic court?

Ann Carlson wrote an excellent post about how Kennedy’s departure might impact some key environmental issues. His retirement means that the Supreme Court will move even further to the right and stay there at least until one of the conservatives departs (maybe Thomas, the oldest). The new pick is likely to be another Gorsuch, which will make Roberts the swing voter. This isn’t as dire as it would have been when Roberts was appointed, because he has moved toward the center. But it’s still bad.

First of all, Trump’s Supreme Court appointment should drive home a key lesson once and for all: you have to win elections. Really, nothing else is as important. Voters who care about the environment or other liberal causes need to realize, much more than they have in the past, that control of the Supreme Court really matters. It’s been fifty years since Nixon first used his appointments to move the Court to the right. Conservatives have had a laser focus on this goal for many years. And it has paid off, not as fast as they would have liked, but in the end they have gotten what they wanted. Unless liberals are prepared to fight just as hard, they will inevitably lose out. Conservatives are making every effort to keep people from voting and dilute their votes if they do manage to survive the hurdles – all the more reason for liberals to redouble their efforts.

Second, it is obviously important to keep fighting hard in the courts. Many cases never reach the Supreme Court, and environmentally oriented  judges may have more of a voice in lower courts. Of course, that assumes that they get appointed, which brings us back to lesson #1 about the importance of elections. Also, even Antonin Scalia sometimes voted on the side of the environment when the statutory text was clear, and we should not give up on the idea of winning Supreme Court cases. To do so, environmental lawyers will have to learn to argue original intent and statutory text with greater skill, because that’s the language conservative judges understand.

Third, state governments become even more important. The Supreme Court may limit state regulatory powers, but conservatives have ideological commitments to federalism that may prevent this from getting out of hand.

Finally, environmentalists will have to focus on avenues for change outside of the courts or the voting booth. Pressure from investors, consumers, and social media can do a lot to change corporate behavior, even without formal legal mandates. (See here). But direct action may also be an important tool, and it’s one that mainstream environmental groups have eschewed. A recent paper by three Stanford sociologists shows that demonstrations against polluters result in emissions cuts, even controlling for a number of factors including a state’s liberal bent. We saw from the teachers’ strikes in states like West Virginia how effective spontaneous protest can be in changing policy even in very conservative political settings.

Regardless of how conservatives stymie environmental progress, we need to be smart about finding new strategies – and keeping up the fight.

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Reader Comments

7 Replies to “Environmental Strategies for the Post-Kennedy Era”

  1. This is a very useful piece to remind readers about the many tools we still have available. But I think you missed one – targeted, specific legislation that forces the courts (even Scalia, as you mentioned) to do what the public and the environmental community wants. Environmental legislation has generally been written to give the Executive agencies lots of discretion to do good things.

    We need to start drafting amendments to existing laws that remove little or no discretion to undo good things or do bad things – e.g., on shrinking national monuments, narrowing “waters of the US”, retaining CO2 as a CAA “pollutant,” delisting “endangered species. Identifying ideal amendments and drafting tight, workable language would be a nice project for some law students.

    Of course this approach is predicated on winning control of Federal and state legislatures, at least on specific issues, but “no backtracking” should be developed as a conscious legislative strategy across the board, in old laws and new.

    1. I totally agree with you. We’ve had to rely too much on administrative creativity to make progress. We’ve got to find ways of mobilizing the legislature.

      1. Dan said:
        “…….We’ve had to rely too much on administrative creativity to make progress…..”

        Dear Dan,
        Your statement is exactly right and it accurately describes the underlying legal flaw in the defunct Clean Power Plan, Paris Agrmt, WOTUS and other environmental laws and regulations. Thankfully, the era of relying on “administrative creativity” to craft environmental laws is behind us.

  2. Dan, the world needs a face, a representative(s) as charismatic as Carl Sagan or Pope Francis to inform, educate and motivate peoples around the world to demand and implement solutions to protect us from increasingly out of control environmental destruction we are causing today.

    One would have hoped that academics, such as Legal Planet who are experts at teaching students in the classroom, would also learn to communicate with the general population, but at this point in time that is rapidly running out on us, this has proved to be an impossible dream.

    So, as far as “finding new strategies – and keeping up the fight”, step one is for you to stop pointing fingers and learn to communicate with people outside your ivory tower with the greatest sense of urgency because your pointing fingers strategy keeps failing or you wouldn’t have had to write this post.

  3. The most disappointing thing about my experience with you and your LP colleagues is that you appear to refuse to enlist and join together with other UC colleagues, including the Chancellor’s offer I referred to above, to provide leadership to protect and save our civilization and to guarantee an acceptable quality of life for our newest and all future generations.

    You do not appear to be providing leadership to inform, educate and motivate peoples around the world to demand and implement solutions to protect us from increasingly out of control environmental destruction we are causing today, even though you claim to be a preeminent “collaboration between faculty at UC Berkeley School of Law and UCLA School of Law, provides insight and analysis on energy and environmental law and policy.”

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About Dan

Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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