What does Justice Scalia’s passing mean for environmental cases at Supreme Court?

The death Saturday of Justice Antonin Scalia at age 79 is likely to have a significant impact on the environmental law docket at the U.S. Supreme Court.

First, the significance of the stay against the part of the Obama administration’s Clean Power Plan that deals with existing coal-fired electric plants, issued by a 5-4 vote that had Scalia supporting the request by utilities and a coalition of anti-regulation states to block the rule, is reduced. With a presumed 4-4 tie on the question whether the Clean Power Plan is consistent with the Clean Air Act and the Administrative Procedure Act (and the U.S. Constitution, to the extent a Tenth Amendment argument is mounted by challengers), any decision in the litigation by the U.S. Court of Appeals for the District of Columbia Circuit is likely to be affirmed. The D.C. Circuit has to be assumed inclined to uphold the carbon dioxide rules; a significant majority of the judges on that bench were appointed by Democratic Presidents and the assigned panel previously rejected the stay application.

Should President Obama obtain Senate confirmation of a nominee to replace Scalia before his term expires next January, it’s at least somewhat likely that appointee would uphold the rule. Should the Republican-dominated Senate succeed in blocking any replacement until after the next President’s term starts, as the chamber’s majority leader has said the GOP will try to do, the outcome would likely depend on the party affiliation of the election winner. A Republican President would likely withdraw the Clean Power Plan, or settle the litigation on terms favorable to the states and industrial interests contesting it in the D.C. Circuit, even before the litigation challenging it arrived at the Supreme Court. Failing that, a Republican-appointed justice could be expected to take a skeptical perspective on the Clean Power Plan.

Two other significant environmental cases await the Supreme Court’s decision on whether to grant petitions for certiorari. The question whether to accept both is probably impacted by the vacancy created by Scalia’s death.

Scalia, early in his career as a Supreme Court justice, defended the iconic Chevron rule that requires courts to defer to agency interpretations of ambiguous language in statutes. But that willingness to defer to agencies seems to have lessened as the justice’s time on the bench proceeded. As Professor Dan Farber wrote Feb. 15 on Legal Planet:

“There are only three cases in which the Supreme Court has ever held that a statute’s interpretation of an ambiguous statute was unreasonable, all three written by Scalia: Whitman v. American Trucking, UARG v. EPA, and Michigan v. EPA.  In all three cases, the ‘unreasonable’ agency was EPA.”

Scalia was the author of all three.

Moreover, Scalia had shown a willingness to look harshly on law that tended to favor environmental protection. He wrote several opinions that reduced the ability of environmental groups to file lawsuits challenging federal policy, for example, and he also was the author of a plurality opinion in a 2006 decision that would have, absent a moderating concurrence by his colleague Anthony Kennedy, drastically reduced the U.S. government’s regulatory power over wetlands and streams.

It seems plausible, then, to suppose that Scalia had developed a greater willingness to reject the ways in which agencies, especially those tasked with enforcing environmental laws, read federal statutes. In the two cases that are now subjects of cert petitions, that perspective may have made a difference in whether the court grants review and in the outcome.

Chesapeake Bay
Chesapeake Bay is shown in this image obtained by the LANDSAT satellite.

The first of these two cases involves efforts to clean up the  64,299 square-mile large Chesapeake Bay drainage basin. In a July 2015 decision the U.S. Court of Appeals for the Third Circuit rejected attacks on the Total Maximum Daily Load designations for the bay. The Obama administration issued the pollution limits in 2010 under an agreement with environmental organizations who had sued the agency for failure to finalize them.

The TMDLs, which apply to nitrogen, phosphorus, and sediment loading into the beleaguered bay, are a tool made available by the Clean Water Act. They are imposed by EPA as a supplement to point source emission limits after the agency approves water quality standards created by a state for an affected water body or, if it rejects the state-based pollution limit, imposes its own.

On Nov. 6 the American Farm Bureau Federation and several other agriculture organizations asked the Supreme Court to hear the dispute. In their cert petition the groups argued that EPA’s decision to issue the TMDLs for Chesapeake Bay sets a precedent that could allow expanded federal power over land use all over the country. The groups base this assault on the TMDLs on a claim that EPA’s interpretation of the Clean Water Act is inconsistent with Congress’ intent. In particular, the agriculture groups argue that EPA cannot allocate responsibility to comply with the TMDLs for nitrogen, phosphorus, and sediment among multiple sources of those pollutants and must, instead, limit itself to specifying the maximum amount of those pollutants that can enter the bay.

As a member of the Supreme Court’s politically conservative bloc and as a jurist who has shown a willingness to rigorously scrutinize EPA’s reading of environmental laws, Scalia might have been inclined to find this argument convincing enough throw out the TMDLs. While there may still be four votes to grant the cert petition, his absence probably means there are not five votes to reverse the Third Circuit decision.

The case is American Farm Bureau Federation v. U.S. Environmental Protection Agency, No. 15-599.

Tongass National Forest - photo by Mark Brennan
Tongass National Forest – photo by Mark Brennan

Another dispute, this one involving Alaska’s 16.8 million acre Tongass National Forest, may also be affected by Scalia’s death. There, Alaska has asked the justices to review a decision by the U.S. Court of Appeals for the Ninth Circuit that invalidated a George W. Bush administration regulation exempting the Tongass from the Roadless Area Conservation Rule.

RACR is a regulation imposed by the administration of President William Jefferson Clinton that limits development, especially logging and road construction, in wilderness-quality areas of national forests. The Clinton-era U.S. Department of Agriculture Forest Service decided that the importance of preserving roadless tracts in the Tongass outweighed the economic consequences that followed from selling less timber from that forest in the future.The agency thus foreclosed about 90 percent of future planned timber harvests on the Tongass.

In December 2003, the Forest Service reversed that finding and decided that the economic value of timber in the Tongass exceeded the environmental value of the roadless areas. The Bush administration acted after Alaska had challenged RACR on the merits but before the validity of RACR was ultimately upheld by the federal courts of appeals based in San Francisco and Denver.

The Ninth Circuit decided that the Bush administration’s Forest Service changed its perspective on the relative value of roadless areas in the Tongass without providing a sufficient justification. Relying on the Supreme Court’s decision in a case called Federal Communications Commission v. Fox Television Stations, Inc., in which Scalia wrote the majority opinion, the en banc panel held that the agency had disregarded its earlier factual findings about the importance of roadless area conservation without enough explanation.

Alaska’s cert petition argues that a change in political philosophy that occurs when an administration of a different party assumes power is enough justification for it, a point the Ninth Circuit panel acknowledged, and that no other reason is needed to support a change in a regulation.

Alaska’s attorneys may have hoped that Scalia’s vote, along with that of the other four conservative justices, would be enough to save the Tongass National Forest exemption from RACR. Without Scalia’s vote, it is less likely that five justices will agree that the Ninth Circuit got it wrong and, therefore, possibly less likely that the requisite four justices will vote to grant review.

The case is Alaska v. Organized Village of Kake, No. 15-467.

EPA effort to block Pebble Mine in Alaska hits judicial bump

A federal judge in Alaska has temporarily barred the U.S. Environmental Protection Agency from exercising a veto of a permit needed to build the largest open pit mine ever proposed in North America.

The decision by U.S. district judge Russel Holland came in a lawsuit that alleges EPA violated the Federal Advisory Committee Act by working with opponents of the copper mine project.

Holland did not release a written opinion. He instead issued a verbal temporary restraining order from the bench.

The lawsuit is part of an effort by Pebble Limited Partnership, the developer of the mine, to bypass EPA’s opposition to its project, which would take up more land in the rugged and fecund Bristol Bay region than the entirety of Manhattan and obliterate the world-class salmon fishery there.

EPA had announced last summer that it would use its authority under section 404(c) of the Clean Water Act to reject a permit that would allow PLP to deposit fill into the bay. The agency plans to finalize that decision early in 2015.

Wednesday’s order by Judge Holland does not indicate that the court agrees with the merits of PLP’s allegations against EPA.

Justices will not review Mingo Logan Coal Co. case

The U.S. Supreme Court has declined an opportunity to weigh in on the question whether the Environmental Protection Agency can veto a wetlands permit granted by the Army Corps of Engineers.

The justices released an order Monday denying the petition for certiorari in Mingo Logan Coal Co. v. EPA.

As a result of the order, the huge Spruce No. 1 coal mine in Logan County, W.Va. remains in limbo.  The U.S. Court of Appeals for the District of Columbia Circuit, which had upheld EPA’s veto authority in an April 2013 opinion, had ordered the case remanded to a federal trial court in Washington, D.C. The district judge will now consider other argument mounted by industry lawyers in their effort to get the largest mountaintop removal project in history into operation.

Should the project proceed, miles of environmentally sensitive streams and several thousand square miles of forest would be destroyed.

For background on this case, please read this post.

Supreme Court to decide whether to hear mountaintop removal case

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The U.S. Supreme Court will decide Friday whether to wade into the years-long fight over the largest proposed mountaintop removal mining project in history.

During the justices’ traditional Friday conference they will consider a petition for certiorari filed by a mining company that plans to fill miles of streams, and several square miles of streamside forests, with the dirt and rock removed in a quest for coal that would strip away more than 3,100 acres of terrain.

The permit allowing the destruction was granted by the U.S. Army Corps of Engineers in 2007, then revoked by the Environmental Protection Agency in 2011.

The legal fight focuses on whether EPA has the power to withdraw a permit granted by another agency of the executive branch after the beneficiary of that permit begins to act in reliance on it. But the real stakes of the now 15-year old battle involve the fate of one of the most fecund regions in the world.

Mountaintop removal mining, one environmental advocate says, is akin to “erasing the most biologically diverse forest on Earth.”

“It’s really hard to understand the scope and scale of it even from the ground below it,” Vivian Stockman, a spokesperson for Ohio Valley Environmental Council, one of the organizations fighting the Mingo Logan wetlands fill permit, said.  “You eliminate layers of rock that’s above the coal and dismantle the mountain. All of that goes into the streams.”

The battle that will be discussed around the justices’ conference room table Friday morning began in 1998, when Hobet Mining Co., a subsidiary of the giant Arch Coal Co., proposed to build the Spruce No. 1 coal mine in Logan County, W.Va.

Environmentalists launched the fight against the project in 1999, convincing a federal court to overturn a permit needed by the mining company before it could fill streams and cover land with the debris that conceals coal seams. That decision was, for the most part, upheld by a federal appeals court and, after several years of wrangling over the extent of environmental impact review required before the permit could be granted, the Corps again granted the permit in January 2007.

Along the way the mining project was transferred from Hobet to Wharncliffe-W.Va.-based Mingo Logan Coal Co.

The Corps relied on a section of the Clean Water Act that establishes a system for conserving wetlands when it gave Mingo the permit needed to proceed with the Spruce No. 1 mine. Thirty-seven dump sites in Appalachian streams were approved by the Corps.

EPA withdrew the permit in January 2011. According to the agency, the approximately 110 million cubic yards of mine waste pollution approved by the Corps-issued permit would destroy more than seven miles of waterway, including about 6.6 miles of two entire streams that are among the most pristine in West Virginia, and cover about 3.5 square miles of forest land.

The affected streams, EPA said in a document explaining its decision, “have some of the greatest aquatic animal diversity of any area in North America, including one of the richest concentrations of salamander fauna in the world, as well as many endemic and rare species of mayflies, stoneflies and caddisflies.”

The riparian forest land is equally vital for wildlife. EPA explained that “[w]ith their adjacent riparian areas, these streams provide important habitat for 84 taxa of macroinvertebrates, up to 46 species of amphibians and reptiles, [four] species of crayfish, and [five] species of fish, as well as birds, bats, and other mammals.”

EPA also pointed out that rivers into which the affected streams flow would experience significant selenium pollution and increased salinity as a result of the pollution from the Spruce No. 1 mine.

Mingo Logan prevailed in a federal trial court after filing a lawsuit challenging EPA’s action, but the U.S. Court of Appeals for the District of Columbia Circuit reversed that victory last spring, rejecting an argument that EPA could not pull the permit after it was issued.

“Section 404 imposes no temporal limit on the Administrator’s authority to withdraw the Corps’ specification but instead expressly empowers him to prohibit, restrict or withdraw the specification ‘whenever’ he makes a determination that the statutory ‘unacceptable adverse effect’ will result,” wrote Judge Karen LeCraft Henderson for a unanimous panel.

The statutory language at the core of the fight is found in section 1344(c) of the Clean Water Act:

“The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.”

The U.S. Department of Justice, in a response to Mingo’s petition for certiorari, argues that this language represents a compromise between the House of Representatives’ desire that the Corps have the final say on wetlands fill permits and the Senate’s intent that EPA have it.

The environmental community agrees with that take on the controversy.

“The industry is trying to blow this issue out of proportion,” Emma Cheuse, an attorney with Earthjustice who has represented environmental organizations opposed to the Spruce No. 1 mine, said. “EPA has had the authority under the CWA to serve as a backstop to protect clean water for decades.”

An EPA website indicates that the agency has invoked its section 1344(c) power only 13 times and Cheuse explained that, while the agency’s decision to reject the section 404 permit granted to Mingo is the first time it has exercised its veto power in the context of a dispute over mining-related water pollution, the agency has a solid factual record to justify its action.

“EPA made a decision here based on robust, strong, and scientific grounds that it provided,” she said.

But Lyle Denniston, a reporter at the respected SCOTUS blog who has covered the Supreme Court for more than half a century, said that he is not sure the question is as clear as the statutory language might lead a casual observer to believe.

“EPA has argued that it seldom has used this power, and Mingo argues that it has actually been used only once — in this case,” he said. “So the court may wonder whether the outcome has any implication for other factual situations.”

“I think that is quite a close question, not answered by the text — or at least debatable enough under the textual language that the court might very well want to clarify it — but, once again, only if it thinks the issue has wider implications,” he continued.

That is the position taken by Mingo and its supporters, who include 27 states and several business advocacy organizations.

Paul Clement, who served as the government’s chief advocate in the supreme court under former President George W. Bush, argued in the company’s petition for certiorari that Congress could not have intended EPA to have the power to revoke permission to fill wetlands, even a whole stream, after companies have invested large sums of money in projects that depend on elimination of a wetland.

“By holding that EPA may withdraw site specifications years after the Corps has issued a permit, the decision below destroys regulatory certainty and overturns the settled expectations of the regulated community,” he wrote.

The Obama administration disputes that analysis, telling the justices in a response to Mingo’s request for review of the D.C. Circuit decision that Congress’ understanding that EPA would interpret section 1344(c), and the agency’s long-standing record of reading the statute as a grant of authority to reject a permit after it is issued by the Corps, is entitled to deference from the Supreme Court.

 “An express delegation of rulemaking authority is the clearest sign of Congress’s intent that an agency will speak with the force of law when it interprets a statute. As relevant here, the CWA contains precisely such a delegation. . . One of [EPA’s] statutorily authorized functions is to withdraw specifications of disposal sites. The EPA therefore spoke with the force of law when it construed Section 1344(c) in its 1979 regulations, and when it subsequently published three post-permit final determinations after notice and comment and a public hearing (in 1981, in 1992, and in this case). And while the EPA has very rarely exercised its power to withdraw a specification after a permit has been issued, the agency has adhered since 1979 to the view that it possesses statutory authority to do so.”

The government’s argument on this point is based on a doctrine of administrative law that requires judges to defer to an agency’s interpretation of statutory language when there is any ambiguity present in it.

Should the Supreme Court agree to hear the case, it will likely consider it during the term that starts next October.

The case is Mingo Logan Coal Co. v. Environmental Protection Agency, No. 13-599.

Image courtesy Vivian Stockman, Ohio Valley Environmental Coalition.