Environmental Law

The Times They are a Changing (Maybe, with Respect to Environmental Cases at the Supreme Court)…

greenhouse-gas-100709-02On February 9, 2016, in an “extraordinarily rare move,” the Supreme Court stayed the rule which required the states to limit green-house gas emissions. The vote was 5 – 4 along ideological lines. These 5-4 votes have become common place in recent times.

Just a few days later, Justice Scalia, a leader of the conservative block on the court was found dead at a ranch in Texas. As a result, the 5-4 conservative majority is no more. And, until a replacement is appointed, many of the decision which were split along the ideological lines will now result in 4 – 4 decisions (See here for an interesting juxtaposition to the granting of the green-house gas stay). This reality means that whatever the decision of the appellate court from which the appeal was taken, will remain the law of that circuit, and there will be no controlling precedent.

Regardless of one’s ideological perspective, both sides seem to agree that we may likely see a shift in environmental policy (see here and here). One need only look at the decision to stay the green-house regulation to see the impact. Had the vote been taken today, there would have been no stay.

Of course whether, and how extreme the shift may be, will be affected by a number of factors. While this topic is ripe for a political discussion, in keeping with Joe Friday’s admonition, this blog will be limited to the facts and allow the reader to draw their own conclusions on the veracity of the various factors and the positions of the political players (for an interesting take on the politics of the process, look at this one).

Although the President has indicated that he will nominate a replacement for the late Justice Scalia, the Republican controlled Senate has indicated it will not only not hold hearings on the nominee, it will also not even meet the nominee, instead allowing the next President to choose the next Justice. As such, the first factor regarding a shift, assuming the Senate follows through on its positions and not allow hearings, is who wins the election. This factor will determine if the majority shifts ideologically. Perhaps equally important, now that there is no clear majority, a seat on the Supreme Court will remain vacant for over a year.

A second factor will be the make-up of the Senate. This factor does not get a lot of press, but there may be a reasonable likelihood that the control of the Senate could shift to the Democrats. If that occurs, even if the next President is the Republican candidate, then one could expect that any confirmation process would be contentious and some compromise on a candidate might occur.

A third factor would be if one party controls both the Senate and the White House. If that is the case, then it would seem more likely that the nominee will reflect a more extreme philosophy of the newly elected President.

So what then can we expect from the Court in the interim. A number of blogs, articles, and opinion pieces have discussed the issue. We think it better to provide the reader with links to those articles, but before doing so, some prognostication might be kind of fun. First, the stay won’t matter in the case of the green-house regulations. The DC circuit is ready to hear the case and has put it on a fast track. A decision will likely happen long before a new justice is appointed if the Senate follows through with its stance. Based upon the panel drawn to hear the case, the regulations will be upheld, the full DC court probably won’t change the decision. While the Supreme Court may grant certiorari (it only takes four votes), because of the stay, a hearing may be fast tracked and a decision could be issued before the new justice is sworn in. Therefore, if the DC Circuit affirms the rules, a 4 – 4 decision will allow the rules to move forward.

So, enough with the crystal ball. These articles discuss how the death of Justice Scalia will affect the direction of environmental policy in the United States: Article 1, Article 2, Article 3, and Article 4.

For political nerds, this will be an interesting few months, or several months, or a year or two. Stay tuned as the story develops.

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