Achieving Results, Exceeding Expectations

Environmental Law

The Post Scalia Court and Environmental Law

supreme courtFinding a replacement for recently deceased U.S. Supreme Court justice Antonin Scalia has entered the political sphere. The Senate Republican leadership is hoping to delay a nomination while President Obama has put forth a replacement who would presumably be more conservative than anyone that Hillary Clinton or Bernie Sanders would nominate. But Scalia’s  death has another effect: it leaves many cases in doubt, cases where he would have cast a crucial 5-4 vote (and even written the majority opinion).

Some of the cases and issues that the current eight person Court may decide could end up in a 4-4 decision, which would allow the decision of a lower court to stand. Of particular note are cases that have an environmental component.

Of interest to Michiganders was the recent decision that Scalia authored  overturning the Environmental Protection Agency’s (EPA) Mercury and Air Toxics (MATS) rule. Scalia and the majority instructed the EPA that they cannot make decisions regarding environmental regulation without considering the costs of implementing the changes versus the cost savings in terms of health and environmental benefits. The state of Michigan was party to this suit, opposed to the actions of the EPA.

Scalia also was firmly in the majority decision regarding the EPA’s Clean Power Plan. The majority’s opinion stated that, again, the costs to power plants must be considered in determining if the regulation should be allowed.

Scalia was skeptical of governmental regulations and considered himself a protector of private property rights. He tended to oppose the actions of environmentalists, insisting that they often lacked standing unless they represented a party who truly was going to be harmed by current practices, prior to further regulation. He tended to be resistant to protection of wildlife species particularly if he perceived that it burdened property owners or businesses.

Scalia’s sharp mind was never debated by any faction of the Court nor any SCOTUS watchers. His absence creates not only a political “event”, but also throws the proclamations of the Court into a tie game into the foreseeable near future.