Richard J. Lazarus, The Scalia Court: Environmental Law's Wrecking Crew Within the Supreme Court, 47 Harv. Env't L. Rev. (forthcoming 2023).
Abstract: In West Virginia vs. EPA, a conservative majority within the Supreme Court announced this past June a sweeping ruling, traceable to the opinions of former Justice Scalia, that seriously threatens environmental law’s ability to safeguard public health and welfare. In sustaining former President Trump’s repeal of the Clean Power Plan — an ambitious Obama administration rulemaking that regulated greenhouse gas emissions from existing fossil fuel-fired power plants — the West Virginia Court insisted that there must be “clear congressional authorization” to support any significant and important rule like the Clean Power Plan. Our nation’s environmental protection laws have been enormously successfully over the past 50 years. That half century of extraordinary success has depended on a partnership between the federal legislative and executive branches, long upheld by the courts, in which Congress enacts broad, capacious statutory language that authorizes agencies such as the Environmental Protection Agency to enact pollution controls that reflects the complexities presented by evolving environmental science, the nation’s economy and constant technological innovation. Congress deliberately chose to delegate lawmaking authority to expert agencies in appreciation of Congress’s own inability to anticipate and address all those complexities in the real-time basis.The West Virginia Court, however, has called into question the legal viability of that legislative and executive branch partnership by insisting that such a deliberate congressional decision to use capacious statutory language is no longer sufficient to support any significant and important rule like the Clean Power Plan. Congress must instead pass a second piece of legislation that meets the Court’s newly-coined “clear congressional authorization” standard, despite the obvious practical reality that the current Congress is incapable of doing so. The threatened upshot is the unraveling of the national government’s ability to safeguard the public health and welfare just as the United States, and all nations, faces the greatest environmental challenge of all: climate change. Under the ironic guise of promoting democracy, the branch of government least accountable to the voters has invented a sweeping doctrine of statutory interpretation — the “Major Questions Doctrine” —to place the equivalent of a constitutional straightjacket on the ability of Congress and the Executive Branch — both of which are more accountable to voters than courts — to enact laws necessary to address the nation’s most pressing public health and environmental problems. This article is divided into three parts. First the article describes the background of the West Virginia case and the Court’s ruling. Second, the article explains that, with the West Virginia ruling, Justice Scalia has achieved, six years after his passing, a degree of influence on the Court’s environmental law precedent that he never enjoyed during his three decades as a Justice on the Court. With Donald Trump’s three new appointees to the Court, the Court has finally become Scalia’s Court. Finally, the article focuses on the adverse implications of the West Virginia ruling on our nation’s ability to enact laws that can effectively address the kinds of serious threats to public health and the environment from pollution and natural resource destruction.