Marshall A. Tanick, BridgeTower Media Newswires
“The planet is fine. Compared to the people, the planet is doing great.”
Comedian George Carlin, “Saving the Planet,” Monologue (Oct. 21, 2007)
With impeccable timing, the U.S. Supreme Court has cast a shadow over environmental concerns throughout the country.
As the 53rd annual Earth Day loomed Friday, April 22, commemorating efforts to safeguard natural resources, the high court a couple of weeks before dealt a stunning blow to environmentalists in reinstating a Trump-era federal regulatory measure restricting the authority of states in enforcing the Federal Clean Water Act, 33 U. S. C. 1152, et. seq. To the consternation of many environmentalists and judicial watchers, it did so on April 6 in such a stealth maneuver that it prompted Chief Justice John Roberts to join the tribunal’s trio of liberals in bemoaning the opacity of the process in Louisiana v. American Rivers, 142 S.Ct. 1347 (2022)(per curiam).
The ruling and another expected soon could significantly hobble environmental protection efforts around the country. It also highlights the growing controversy about the high court’s shortcuts in its decision-making process.
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Revised and reinstated
The act, which allows states to issue permits for industrial discharges into the nation’s lakes, streams, and other waterways, was constricted with a new regulation in 2020 that narrowed the standards for state certifications, tightened deadlines, and rolled back other limitations that industry groups found unfavorable.
Twenty states and the District of Columbia joined environmental groups in suing to overturn the Trump administration’s action, which yielded a series of triumphant court rulings, including one by the 9th Circuit Court of Appeals. The former president’s appellate bête-noire went so far as to vacate the Trump regulatory retrenchment in its entirety, even though the Biden administration’s Environmental Protection Agency asked only to be given an opportunity to revise the regulation, not kill it altogether.
That dichotomy underlay the high court’s ruling earlier this month, by a 5-4 vote, to reverse the appellate court decision and reinstate the Trump cutback. It did it in an unsigned per curiam order as an emergency edict off of the court’s so-called “shadow docket” without any formal briefing or argumentation and devoid of any explanatory reasoning. While disappointed with that reinstatement on the merits, it was the process by which the conservative majority acted that most disturbed the four dissenters, led by Justice Elena Kagan’s lamentation, joined by her two liberal colleagues and the usually conservative chief justice.
Her dissent lambasted the conservative quintet for having gone “astray” by expediting a decision “without full briefing and argument,” a shadowy procedure used in other high-profile cases this term, including refusing to stay the Texas six-week abortion “vigilante” case last September in Whole Woman’s Health v. Jackson, 142 S.Ct. (2021) and, more recently, in reviving a gerrymandered redistricting plan in Alabama that a lower court, including a Trump judicial appointee, had invalidated in Merrill v. Milligan, 142 S.Ct. 879 (2022).
That syndrome has drawn the wrath of many court groupies. Coined in 2015 by University of Chicago law school Professor Will Baude, the term “shadow docket” has taken on a life of its own, and one that many academicians, lawyers, and litigants would like to exterminate. But it appears to have staying power and may be used with increasing frequency by the current composition of the court, usually to pre-empt full-scale argumentation, presentation of amici briefing, and the like to implement major rulings by deviating from the ordinary course.
In this case, its utilization may dilute the ability of state environmental agencies from engaging in full-throttle oversight of industrial projects.
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Another action
But wait, there’s more.
Another environmental setback may be on the way from the justices in the nation’s capital.
They heard an action earlier this winter that could minimize the EPA’s regulatory scrutiny under the Clean Air Act, 42 U. S. C. 7401 et. seq., of greenhouse gas emissions in West Virginia v. EPA, No. 20-1530, a case in which several states and industry groups seek to limit the agency’s regulation of coal-fueled power plants, a matter that one knowledgeable observer, Case Western Reserve Law professor Jonathan Adler, grandiosely calls “the most significant environmental law case of all time.”
Unlike the Clean Water litigation decided earlier this month, this appeal was briefed and heard in full oral argument this winter. Court watchers came away with the distinct impression that a majority of the justices are poised to narrow the EPA’s authority, as they did so abruptly in the American Rivers case.
If so, the dual decisions could leave the agency, which was created 53 years ago as one of the several major domestic accomplishments of President Richard Nixon and his administration — before he engaged in high crimes and misdemeanors — a mere shadow of itself.
Climatic conditions aside, saving the Earth might be a good topic for a comedic riff, mixed with some serious overtones, by a skilled raconteur. But it’s no laughing matter when it comes to environmental laws and how the U.S. Supreme Court adjudicates them.
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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
