As we celebrate Earth Day, the U.S. Supreme Court weakens the EPA | Opinion

April 22, 2022 6:00 am

The confluence of the Mississippi and Minnesota Rivers (left). Photo by Tom Reiter courtesy of Friends of the Mississippi River.

Leave it to the conservative majority on the U. S. Supreme Court to ruin a celebration. This one is the commemoration of Earth Day on Friday, April 22, the 53rd anniversary of the day set aside to recognize environmental concerns and how to address them.

The justices in the nation’s capital dealt a stunning blow on April 6 to environmentalists — and more importantly, water quality — by reinstating a Trump-era federal regulatory measure restricting the authority of states to enforce the federal Clean Water Act.

And the court did so with a maneuver that prompted Chief Justice John Roberts — a conservative jurist himself — to join the tribunal’s liberal trio in bemoaning the opacity of the process in a case entitled Louisiana v. American Rivers. 

The ruling — and another expected soon — could substantially impair environmental protection efforts in Minnesota and elsewhere. 

It also highlights the growing controversy about the court’s shortcuts in its decision-making process.

Reinstated Restrictions

The Clean Water Act — a measure overseen by the Environmental Protection Agency (EPA) allowing states to issue permits for industrial discharges into the nation’s lakes, streams and other waterways — was weakened with a new, industry-favorable regulation in 2020.

Twenty states, the District of Columbia and various environmental groups joined in litigation seeking to overturn the Trump administration’s action. Their efforts turned out to be a pyrrhic victory, actually a trio of them, reflected in favorable court decisions that either suspended or invalidated the Trump-imposed rollbacks. 

But those victories in the lower courts turned out to be fatal to the claimants’ cause, as the U.S. Supreme Court ruling earlier this month, by a 5-4 vote, reversed the most sweeping lower court ruling and largely reinstated the Trump regulation. 

The deed was done through a controversial device resorted to with increasing and objectionable frequency: An unsigned order cast as an “emergency” edict on the court’s so-called “shadow docket,” unaccompanied by any formal briefing or argumentation and devoid of any explanatory reasoning.  

While disappointed with that restrictive reinstatement, it was the process by which the conservative majority acted that most disturbed the four dissenting jurists, led by Justice Elena Kagan and joined by her two liberal colleagues and the usually conservative chief justice.

The dissent written by Kagan lambasted the conservative quintet for going “astray” by expediting a decision “without full briefing and argument,” a shadowy procedure used in other high-profile cases this term, including refusing to suspend the Texas six-week abortion “vigilante” law last September in  Whole Woman’s Health v. Jackson. And, more recently this winter, it did it again in reviving a gerrymandered redistricting plan in Alabama that a lower court — including a Trump judicial appointee — had invalidated in the case of Merrill v. Milligan.

Coined in 2015 by University of Chicago Law School’s Will Baude, the term “shadow docket” has taken on a life of its own, and it’s 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 preempt full-scale argumentation, presentation of amici briefing, and mounting public opinion and scrutiny to implement major rulings by deviating from the ordinary course and issuing rulings lacking transparency. 

In this case, its utilization may dilute the ability of state environmental agencies like Minnesota’s own Environmental Quality Board, Department of Natural Resources, Pollution Control Agency and other watchdogs from engaging in full-throttle oversight of industrial projects. Its effect elsewhere may be similar or even more detrimental to environmental concerns  

But wait, there’s more. 

Another adverse environmental ruling  may be in the on-deck circle from the court, with justices swinging away at environmentally important regulations.

They heard a different appeal this winter that could minimize the EPA’s regulatory scrutiny — under the Clean Air Act — of greenhouse gas emissions in a case called West Virginia v. EPA. That lawsuit is a challenge by several states and industry groups seeking to minimize the agency’s regulation of coal-fueled power plants, which are a leading producer of greenhouse gases.  

Jonathan Adler, a Case Western Reserve Law professor, hyperbolically heralds the case as “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. But 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. 

Should that occur, the dual decisions could leave the agency, which was created 53 years ago during the Nixon administration, a mere shadow of itself.

Gazing through the shadows it is not difficult to recognize that a majority of the Supreme Court justices seem as eager to roil the waters of environmental oversight and regulation as they are to curtail long-established fundamental rights of other types.

Their actions are reminiscent of the observation of the late comedian and social critic George Carlin, who, in his memorable 2007 monologue “Saving the planet,” admonished against bemoaning the plight of the Earth: “The planet is fine,” he declared. “Compared to the people, the planet is doing great.”   

But it’s no laughing matter when it comes to environmental laws and how the Supreme Court adjudicates them.

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.