by Doug Kendall
Following
last Friday’s announcement that Justice John Paul Stevens will retire from the
Supreme Court at the end of this term, President Obama hailed the Court’s most
senior Justice as “an impartial guardian of the law.” This description is
certainly accurate, and is perhaps best illustrated by Justice Stevens’
numerous rulings in environmental cases.
First,
it is worth remembering that Justice Stevens came to the Court in 1975, at the
dawn of the modern environmental movement and amid a heady time for
environmentalists in the courts. Just a few years earlier, in a dissent
from the landmark case Sierra Club v. Morton (1972), Stevens’ predecessor, Justice William O. Douglas, had famously argued
that natural resources such as trees and rivers should have “standing,”
positing that if corporations are permitted to represent their interests in
court then so too should other inanimate objects. Meanwhile, in cases of
statutory interpretation, judges on the powerful U.S. Court of Appeals for the
D.C. Circuit had developed a number of doctrines that allowed them to
aggressively second-guess agency decision-making in order to realize the broad
and ambitious goals of environmental statutes. These developments invigorated environmentalists, but they also
introduced a sense of permissive creativity into a rapidly growing body of
environmental law, and exposed judges who made pro-environmental rulings to
allegations of judicial activism.
Justice
Stevens, by contrast, firmly rejected the idea that environmentalism was some
sort of transcendental force that gave judges special powers to enforce broad
statutory goals on their own and overrule regulatory agencies. Most
famously, in Chevron v. NRDC (1984), he
wrote a majority opinion for the Court that sternly rebuked the D.C. Circuit
for substituting its judgment for that of the Reagan EPA, which had sought to
give industry more flexibility in meeting their Clean Air Act obligations.
Though a bitter defeat for environmentalists, Chevron, which holds that
judges must defer to agencies when they make a reasonable judgment about an
ambiguous law, is rightly hailed today as a landmark of both administrative law
and judicial restraint.
Those
same principles—deference to the plain language of statutes and concern about
judicial restraint—are the hallmarks of Justice Stevens’ other landmark
environmental rulings, which have rightly earned Stevens the enduring gratitude
of the environmental world. In Babbitt v. Sweet Home Chapter Of Communities For A Great Oregon (1995), Justice Stevens wrote for a six -Justice
majority in reinstating the portion of the Endangered Species Act that protects
endangered species’ habitats, which had been struck down by the D.C. Circuit
(which by then had been taken over by Reagan and Bush appointees). This time, Justice Stevens’ opinion corrected
the D.C. Circuit’s narrow reading of an environmental statute by finding that
the language and intent of the Endangered Species Act was clear in forbidding
changes to habitats that will harm endangered species.
In
2002, Justice Stevens wrote another rule-of-law environmental opinion in Sierra
Preservation Council v. Tahoe Regional Planning Agency, a “takings” case
that followed a 15-year period during which the Court’s conservatives, led by
Justice Scalia, had been remarkably inventive in trying to transform the
Takings Clause of the Fifth Amendment into a barrier to environmental
laws. Rejecting this bending of the Constitution’s meaning, Justice
Stevens garnered another six-Justice majority in upholding land-use protections
put in place to save Lake Tahoe. The
ruling returned the Takings Clause to its more limited role as a guard for securing compensation for landowners when
the government exercises its power of eminent domain.
Finally, and
perhaps most famously, in Massachusetts v. EPA (2007), Justice Stevens
relied on Chevron and the unambiguously broad terms of the Clean Air Act
in holding that the EPA may regulate greenhouse gas pollution using its
existing authority under the Act. This ruling has allowed the Obama
Administration to aggressively combat global warming without waiting for
further action by Congress, setting into motion a chain of regulatory actions that has led to the nation’s very first nationwide auto emissions
standards aimed at greenhouse gases, and may soon lead to the nation’s first
restrictions on CO2 emissions from power plants.
Justice Stevens should be remembered as a great justice
in environmental cases, not because he bent the law to favor environmental
outcomes, but rather because he insisted that the law itself, which dictates
environmental outcomes in many cases, be followed.
Related Links:
The hazards of using toxic coal ash for land development
What the John Paul Stevens retirement means for energy progress
Murkowski wants to save Alaska by destroying it