Threat Assessment: The Supreme Court & the Environment

The current bench is tilted against environmental regulation. It could get worse.

In September, Take Back the Court issued a study entitled, “The Roberts Court Would Likely Strike Down Climate Change Legislation.”  In my view, that’s too alarmist. But the current conservative majority definitely will be an obstacle to aggressive use of government regulation.  That could hold true well into the 2030s, depending on who leaves the Court and who’s in the White House at the time.  The authors of that study were highlighting a very real concern, even if they may have been a little over-dramatic.

It’s clear that the present majority is no friend of the administrative state.  As early as 2013, Chief Justice Roberts warned that “the danger posed by the growing power of the administrative state cannot be dismissed.”  His views especially matter because he’s now the swing voter on the Court. The Chevron case which requires courts to defer to agency interpretation of ambiguous statutes, is under heavy conservative fire and may well be overruled — notwithstanding the fact that it’s been cited thousands of times by the federal courts. Until Obama took office, conservatives loved the Chevron doctrine because it increases presidential power.

Just last year, four of the conservative Justices indicated a desire to strike down statutes which they think give too much discretion to administration agencies.   That would overrule 84 years of Supreme Court rulings. In fact, except for two cases in 1937, the Supreme Court has never actually struck down a law on this basis.  Justice Kavanaugh, who didn’t vote in that case, has more recently indicated allegiance with the other four conservatives on this issue, though his ideas differ somewhat in how they would be implemented.  This conservative initiative would pose a threat to some existing environmental statutes. It’s hard to evaluate the extent of the threat, though I have a hard time imagining that Chief Justice Roberts will run amuck with the idea, even though in theory the conservatives could strike down big chunks of environmental law including much of the Clean Air Act.

It would require very careful drafting of future climate change legislation to avoid this kind of constitutional challenge.  Even if the law survives constitutional challenge, any ambiguities in a future law could well be resolved by the Court in favor of the fossil fuel industry. One advantage of a carbon tax might be that the law could potentially be specific enough to leave little discretion in implementation.

Though you can never rule anything out, I’m less worried about two of the other issues raised in the study from Take Back the Court.  One worry is that the Court might rule that climate legislation is a taking of property without just compensation.  The Court has never held a general business regulation unconstitutional on the ground that it had the side effect of making some property interests less valuable.  All of the modern takings cases involve regulations directly aimed at the use of land.  I suppose it’s conceivable that the Court might find a national ban on fracking on private land to be a taking of mineral rights in gas and oil.  It’s probably better to regulate or tax emissions, even if it has the side effect of limiting fracking.  In any event, Chief Justice Roberts wrote an opinion in the Murr case a few years ago that indicated he wasn’t inclined to make major changes in takings law.

The other question is whether the Court would strike down climate legislation for exceeding congressional power to regulate interstate commerce.  Again, I’m doubtful.  First, a carbon tax wouldn’t be subject to that objection at all.  It’s possible that the current Court might have a problem if the law directly regulated conduct by private individuals like using their own fireplace or idling their cars too long.  But it’s hard to imagine that Congress would want to pass such a law in the first place. Unless the Court is ready to strike down basically every bit of legislation in the past century, it would be hard for them to find grounds to view regulation of emissions from industry unconstitutional.

Three caveats are in order.  The first is that you can’t be completely sure of what judges will do.  This is shown by the willingness of four Justices to strike down the Affordable Care Act on grounds that would have been considered frivolous a year or two earlier.  Not to mention Bush v. Gore. The second caveat relates to the composition of the Court.  I’m addressing the current Roberts Court.  If one or two of the current liberal Justices were replaced by activist conservative, all bets would be off.  That’s not impossible, depending on how the 2020 election comes out, how well the health of the older Justices holds up, etc. The third caveat is about timing.  If the Court maintains a strong conservative majority for a long enough time, it could start building a body of precedents that would cripple all government regulation. That’s not a negligible possibility.    So there are real grounds for worry, including the possibility of a future crisis if the Court gets too far away from an equally strong and long-lived democratic majority

In terms of strategy, regulators may want to pursue two approaches. The first is to use a swarm of smaller regulations.  Smaller regulations are less likely to attract the Court’s attention.  And if one or two are struck down, the others remain effective.  The second strategy is to craft regulations with Chief Justice Roberts and Justice Kavanaugh in mind.  For instance, Kavanaugh is a huge fan of cost-benefit analysis, so regulators should be sure to have rigorous economic support whenever possible.  Finally, Kavanaugh and Gorsuch seem reluctant to strike down state laws on federalism grounds, so there may be greater opportunities for regulation at the state level.

There are substantial concerns about the long-run threat of an activist conservative Court. The bottom line for me is that the Supreme Court will be a barrier to aggressive regulation in years to come, but probably not an insuperable one. The conservative bent of the Court will make regulation harder, but no one ever said saving the planet was going to be easy.


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Reader Comments

7 Replies to “Threat Assessment: The Supreme Court & the Environment”

  1. You should amend your last statement so it reads “Saving the planet for humanity”. The Earth will abide regardless of humanity’s stupidity and nature will fill in any void left by our extinction. Tbe Earth has been hotter and colder prior to emergence of homo spaien culture 10,000 years ago.

  2. I think your second caveat has a freudian slip in it Dan…you mention the “compensation of the Court” when I think you meant composition. They seem well-paid for life for their workloads!

  3. It’s interesting how these sentiments appear at the federal level, but what could be interpreted as government overreach at the local level seems to be left alone. In particular, there are many state, county, and local jurisdictions where bylaws and the like end up prohibiting the use farmers and private citizens can make of their property, notably when they want to erect wind turbines or place solar farms or batteries. It seems to me if property rights are to be respected, prohibitions like these are unwarranted interference with property use as well. Ditto restrictions imposed by public utility commissions on the Ikeas of the world who would like to become little utilities, but regulatory capture allows incumbents to interfere with and prohibit such.

  4. Considering the conservative bent of the court, the Supreme Court is likelt to limit government regulation. However, at the state level, it is hard to imagine that they can strike down every piece of legislation. Even more, I think the court will have difficult time reasoning in strkining sound legislations without backlash from NGOs and other entities. Bashar H. Malkawi

  5. Public opinion and climate science — the #ClimateCatastrophe — will drive the Court and the other Branches –however conservative, indifferent and corrupted they may be– to respond with too little too late.

  6. Planet wide extinctions are the direct result of 70+ years of geoengineering and weather control by military interests. Rational discussions of the above facts are censored by mainstream media. Civilian populations continue to be nebulized by their own complicit behaviors, and most never bother to notice a completely engineered and putrefied sky.
    The Earth needs a good lawyer…

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About Dan

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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About Dan

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…

READ more