Guest host, Christophe Courchesne talks to Sean Donahue, a partner at Donahue, Goldberg, and Herzog, and Bob Percival, director of the Environmental Law Program and the Robert F Stanton Professor of Law at the University of Maryland Francis King Carey School of Law, about the Supreme Court rulings this year that have diminished environmental protections.
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For this podcast, the production of the Maverick Lloyd School for the Environment, a Vermont law and graduate school.
Christophe Courchesne
Hello and welcome to the Hothouse Earth Podcast with Vermont Line Graduate School. I'm your guest host today, Christoph Courchesne. I am the director of the Environmental Advocacy Clinic here at Vermont Line Graduate School. And this year I'll be serving as the interim director of the Environmental Law Center. And I'm an associate professor of law here at the school. Today, our topic on Hothouse Earth is the decisions by the Supreme Court as the term concluded back in June.
And we couldn't be joined by better guests to discuss these developments and what they mean for environmental law. We have with us today Sean Donahue. Sean is a partner at Donahue, Goldberg, and Herzog, where his practice is focused on appellate litigation with a focus on complex environmental and administrative law cases. He's a graduate of the University of Chicago Law School, and he served as a law clerk to then D.C. Circuit Judge Ruth Bader Ginsburg and to Justice John Paul Stevens of the Supreme Court.
After entering practice at Jenner and Block, he spent four years at the appellate section of the Department of Justice, Environmental and Natural Resources Division. And since establishing his own practice in 2002, Sean has represented environmental and public health organization parties and numerous major environmental and clean energy cases in the Supreme Court and in the Courts of Appeals. He has taught courses in environmental law and other subjects at many schools, including the Iowa College of Law at Washington and Lee University School of Law, Georgetown University Law Center, Stanford Law School, and Vermont Law in Graduate School, where he's been a wonderful member of our summer faculty.
Also today with us is Professor Robert Percival. Professor Percival is the director of the Environmental Law Program and the Robert F Stanton Professor of Law at the University of Maryland Francis King Carey School of Law. Professor Percival served as a law clerk for Judge Shirley M Hostetler of the Ninth Circuit and Supreme Court Justice Byron White. He also spent six years as an attorney for the Environmental Defense Fund.
So, Bob and Sean have something in common there in terms of clients. He has served as a visiting professor at Harvard Law School and Georgetown University Law Center. He is the principal author of the most widely used environmental law casebook. He was a Jay William Fulbright scholar at the China University School of Political Science and Law in Beijing.
And in 2009, he represented the U.S. State Department on a lecture tour of China. He wrote the first articles analyzing what the papers of the late Justices Thurgood Marshall and Harry Blackman revealed about the Supreme Court's handling in environmental cases. And he currently teaches a seminar on the Supreme Court and environmental law. So, as I said at the outset, we could not be joined by better commentators and observers and scholars and practitioners in this space as we tackle a very timely discussion of what's been happening at the Supreme Court.
I think before we dive into the details of the cases, our listeners would be very interested in hearing from both of you on your backgrounds and specifically what brought you into this world of environmental law, especially at this highest level at the appellate and Supreme Court levels. And so maybe I'll start with Sean and we'll go to Bob next.
Sean Donahue
Thanks, Christophe, for having us on. Um, planning and strategy and mostly sort of happenstance is how I ended up doing what I've been doing. Now for several decades. I took environmental law in and law school. I was interested in the outdoor cause and environmental protection, but I wasn't nearly as engaged or prepared as many of the students that I now teach.
And I was looking around for public service jobs. DOJ jobs and opening came up and the Environment division and the appellate section that proved to be really interesting. And so that experience led me into doing a little bit of teaching. And then and then I started doing amicus briefs and then and then more extensive representation for Environmental Defense Fund and then started a firm that I'm at now.
So that was basically the story.
Christophe Courchesne
Thank you, Sean. And Bob, for your part.
Robert Percival
Well, I after finishing my clerkships, I only interviewed for a public interest jobs in California because I'd gone to Stanford and fell in love with the Golden State. But it was just as Reagan was coming to office. I got hired by the Edith Berkeley office and they said, Why don't you just stay in Washington for a while? We're going to have a lot of litigation there.
And they ended up bringing the first lawsuit against OMB for blocking EPA regulations that, to the shock of everyone on the EADS Litigation review Committee, I won. And I was really hooked on environmental law. And then 11 days after I started at EDF, I was cross-examining top executives of utilities about whether to cancel a nuclear power plant in New York.
And I'd never had environmental law because the course wasn't taught. I'm dating myself when I was in law school, and I never had any experience of cross-examination. So I had to learn by doing. And it was that experience that convinced me that I wanted to help train the next generation of environmental lawyers so they would be better prepared when they came out of law school than I was.
Christophe Courchesne
Well, those stories have put both of you in important places to think about what's been happening here. And both of you have had wonderful careers that have sort of swept through a lot of different Supreme Court's different justices and I think a lot of different juries. Prudential approaches, the end of this term certainly brings us to the point of really some major changes.
And so I was wondering if each of you could maybe take a couple of those cases that came down at the end of the term that really seemed to have major implications for environmental law. Maybe, Sean, if you could take one of the cases on our list and then we'll go to Bob and we'll go back and forth a little bit.
Start with the one that maybe got the most attention. It's not strictly an environmental case, although it is kind of a natural resources case, but it's it's really a case about the whole sweep of environmental law. And that's the the pair of cases, Loper Bright and and relentless in which the court overruled its 1984 precedent in Chevron versus NRDC.
Sean Donahue
And held that administrative agencies are not entitled to deference in their interpretation of ambiguous statutes that they administer, at least not sort of as a matter of course. And that decision, it's been understood good for several years that the majority on the current Supreme Court doesn't like Chevron or what Chevron has come to mean and plan to either dramatically sort of pull back on reliance on it.
And in fact, the court hadn't cited Chevron, even in some cases where it would seem applicable. And it had been, I think, something like eight years since the court had relied on Chevron in a decision and there had been several justices who had really criticized it. But it was still an open question whether the court would go so far as to overrule a case that is one of the most, if not the most cited administrative law cases ever, a case that was unanimously decided by a six-member or in 1984.
The case that the court has relied on in scores of its own cases, including many unanimous ones, and that lower courts have relied on in thousands of cases. And so this was both a really important moment in administrative law and another moment in sort of assessing how aggressive this six to three conservative majority is willing to be in revisiting sort of very fixed guideposts of American law.
And the fact that they kind of came out, as this opinion does, and kind of very confidently says Chevron is overruled. It's still striking. It's still I'm sure Bob joins me. And if you actually look at the Chevron decision online, it's got the like overruled mark on it. And that's a little bit shocking. Um, I think maybe I will just say a word about the significance for environmental law.
Chevron itself was an environmental decision, a Clean Air Act decision where the environmental group NRDC lost. It had been arguing that a deregulatory tree initiative by the Reagan administration contravened the statutory Clean Air Act, and the court deferred to the agency and kind of makes the pitch for pragmatism and a little bit of judicial modesty that that agencies have expertise and judges, once they've determined that a statute doesn't answer a question and a clear way to acknowledge the expertise and co-equal status of an executive branch official who's been charged with applying a statute.
I think Chevron kind of changed meaning over time. It was originally thought of as a protection for executive authority. Maybe room for moving away from rigid or very stringent readings of statutes and that's and it had support initially from justices like Justice Scalia was a big a big fan. It was seen as as protective of separation of powers because it protected the executive co-equal status as interpreter of laws. And it came over time, particularly during the Obama administration, to mean something very different, especially to conservatives. It came to be a license for agency to do ambitious things with less than clear statutory mandates. It got some of the same kinds of criticisms that ended up informing the major questions doctrine, which the Supreme Court, the same Supreme Court formalized and unveiled as a separate doctrine that agencies really should not have too much authority, that they really need very clear textual instructions from from Congress.
And so by 2024, Chevron had become this real, that noir among conservatives. And it was like a sort of article of faith that we don't like Chevron. It gives agencies too much power. It's intention with the separation of powers in a different way that judges are the ones who are supposed to say what the law is, and basically all of that.
And this to me is a real disappointment. And that and the I think that the majority opinion by Chief Justice Roberts, I, I guess I could get points for sort of adopting this line of argument in a way that's very sort of clear and emphatic, and maybe I can kind of see where they're coming from. But it it really didn't acknowledge some of the countervailing arguments makes the history far too neat.
Chevron really did build on a pretty big tradition of deference that predated 1984 that the court kind of treats it as this like an aberrant wrong turn that the court made. I think I'll just there's obviously lots that can be said and has been said and will be said about this. I think I'll just say for environmental practitioners now, it's important to note that while it's in general a troubling development because it signals to Wirth that agencies should not get lots of leeway from the court.
But the the court does still acknowledge that there are circumstances where giving the agency reading or decision weight is appropriate, including where the statute clearly confers discretion on the agency. And that's going to end up being an awful lot of cases. I think when we actually look at environmental statutes, because they tend to not be sort of self-executing, they tend to rely on agencies like EPA, the Department of the Interior, many others.
And so I think some of the kind of acknowledgments and the decision will prove pretty important. I think a lot will depend on how the Supreme Court and others apply these new instructions over time. But it's pretty skeptical about claims, about agency expertise. I think it should be viewed as part of a conservative movement to roll back the power of administrative agencies.
So that's just a bit on the decisions. The court did address something that had come up at oral argument as a major concern, which is we have 40 years of precedent and of agency decisions issued under the Chevron framework. Are they all now invalid or are they automatically up to be overturned or reexamined? The court says in a somewhat tepid couple of paragraphs at the end.
Well, those decisions will not sort of automatically be subject to overruling just because they relied on Chevron. But I think that's like a really big question. If you see law firms or are coming out with all kinds of roadmaps for challenging things and claiming that this is a sea change, I'm not sure it's going to prove to be that big.
And I think when you look at a lot of these older policies, many of them will be in areas that the that the Looper decision recognizes are ones where agency should get substantial weight and maybe should be reviewed only under the deferential, arbitrary and capricious standard, because an awful lot of the statutes really are clearly asking the agency to make the call rather than the court.
But but that remains to be seen. It's clearly just extra timely, disruptive moment. It would have been unthinkable 15 years ago. It was not as well discussed. The only big, very unsettling thing that happened to environmental law this term. But if it had been the only one, it still would have been huge because the implications are the vast majority of federal environmental law still still coming to terms with it.
Christophe Courchesne
Thank you, Sean, and terrific summary of the decision, which really is Titanic. I think we all of us in the environmental field looking at that change in how the court really announced a huge set of rules around this that we'll have to grapple with in future cases, something that we didn't expect to see. I think you're right. 15 years ago we did not expect to see a red flag on the Chevron case as being overruled so explicitly, even as it had been quietly discarded at the Supreme Court level for some time.
Bob, since it's such a big case, I'm wondering if you have some thoughts on or Bright to share right off the bat. And then if you have one of the other cases that the Supreme Court decided towards the end of the term that you'd like to talk about more than welcome to do.
Robert Percival
So yeah, I would just say as far as the consequences of Lawfare, bright as Sean mentioned, it was well known that a majority of the justices hated Chevron. So as a result, I called Chevron Dead Man Walking. No one cited it in their briefs. No one argued to the justices. You have to defer to the government agency because of Chevron.
So, in a sense, it's not going to have a huge impact right away. But it suddenly it became such a big cause for the right-wing like this is necessary to rein in the agencies. Yeah, the Leonard Leo Federalist Society money machine poured in amicus briefs from these organizations they funded, saying that Chevron's the worst thing ever. When Justice Gorsuch got on the court, he immediately said he wanted to overrule Chevron.
And Chief Justice Roberts kept trying to hold them in because he didn't want the court to look too disruptive. But it was clear the majority of the justices didn't like Chevron. So in that sense, it won't have a huge impact in the Supreme Court. Non told in the lower courts it had a bigger impact than it did in the Supreme Court.
And it's kind of ironic that David Doniger lost the Chevron case for NRDC and Gorsuch. Burford EPA was rolling back clean Iraq regulations. They said, let's defer to the agency. And now the positions just flipped entirely. And he's filing an amicus brief saying, no, you got to keep Chevron. So it's amazing how that changed over time. The case I'd like to talk about is Ohio versus EPA.
And I think it is significant because it shows another major change in Supreme Court jurisprudence, and that is the use of the shadow docket or emergency docket. It all really started back in February 2016 when the Supreme Court shocked everyone in February by voting 5 to 4 to grant a stay of the Clean Power Plan, even though the D.C. Circuit, which was hearing the legal challenges to it, had explicitly and unanimously denied a stay.
And it was because they got Justice Kennedy's vote in a very closely divided Supreme Court that had previously decided Massachusetts versus the EPA, that EPA had the authority to use the Clean Air Act to regulate greenhouse gases. But now, because of all these claims that the lights would go out if you didn't immediately stay a plan whose first compliance deadline really wasn't until 2030, the court intervened and as a result, now industry groups have been running to the court at the drop of a hat.
Say it's a block this regulation. Well, the Ohio versus EPA case actually involved a portion of the Clean Air Act that's designed to prevent downwind states from being unable to comply with the National Ambient Air Quality Standards because of pollution from upwind states. It's also called the Good Neighbor Rules. And back in 2015, 2016, the Obama administration finally started aggressively using that portion of the act to require states that were causing pollution problems on a transboundary basis to revise their state implementation plans to cut down on transboundary pollution.
And Judge Brett Kavanaugh, when he was on the D.C. Circuit, struck down some of those initial regulations by adopting a really hyper-technical interpretation of the act that would effectively make it impossible by saying that unless you can absolutely prove that this is what pushed the state over was pollution coming from another state you couldn't over control in order to be precautionary.
And that was referred 6 to 2 by the Supreme Court in the Amy Homer City decision with only Justices Thomas and Scalia dissenting. And now when the EPA is strengthening those regulations, a year ago, an emergency motion was filed last year asking the Supreme Court to stay in even before the lower courts had heard legal challenges to it.
And in some of the Trumpian circuits, there were states granted for parts of the plan that applied to some of these red states. And as a result, the states who didn't get their stay in the D.C. Circuit argued, well, now the whole plan is defeated because instead of 23 states being part of this federal effort to control transboundary pollution, there'll be a lesser number, at least temporarily, until the legal standard challenges are heard.
And the court in this case did something really unusual. They said, well, let's hear oral argument. They've been criticized a lot of times for acting without even hearing oral argument as they did when they say the Clean Power Plan. And then they treated it as though it was almost litigation on the merits. And in a 5 to 4 decision written by Justice Gorsuch, the court said, well, there was this comment in the record that EPA didn't really respond to and therefore the likelihood of success in challenging this regulation is really great and we should therefore stay.
Then the interesting thing about this case was Justice Amy Coney Barrett, who votes with the conservative super majority most of the time, actually wrote the dissent for all four female justices on the court, saying that this is basically kind of a ridiculous argument. EPA's plan was sound and it wouldn't have changed anything about the overall plan if a few states weren't part of it.
And so that was quite a surprise that she voted in dissent and wrote the dissent, criticizing the majority for having done this. So another illustration of how the court now has become a court that will provide relief at the drop of a hat to industry even before the lower courts here, the legal challenges to EPA regulations, including long-standing regulations.
Christophe Courchesne
It's been a fascinating case, that Ohio case, as it's evolved in such an odd procedural posture, getting the full merits treatment, despite the fact that there really haven't been the underlying merits litigation having proceeded and certainly the environmental Advocacy Clinic at Vermont Line Graduate School, our student attorneys represented some air quality scientists who were looking to file an amicus brief in the merits litigation that is still underway in the D.C. Circuit.
And I know that Sean and his phone have been active in that case as well on behalf of EDF. And so there's a way in which that just with turning the normal litigation process on its head and then you had a full dress fight at the Supreme Court about whether the whether the rule should be stayed is sort of a fascinating inversion and a lot of skepticism of EPA from the majority and a willingness to second guess EPA even on an incomplete record.
Maybe, Sean, if you want to take other developments at the end of the Supreme Court term, you want to throw into the mix.
Sean Donahue
Sure. And on the theme of kind of unsettling things that we thought were pretty settled, like, you know, we thought that if a lower court had refused to stay an agency rule, at least until the Clean Power Plan, for example, it was just not a thing that you can go to the Supreme Court and get it overruled.
We thought that that Chevron, while there were certainly some important developments in how it was applied and when it applied, but that the basic framework we thought was was around to say another of the decisions that came out actually on the very last day of the term is also a blow to stability. And that is the corner post case, which was not an environmental case, but involves a statute that is very important for a lot of environmental cases, and that is the statute of limitations that applies to actions against the United States where there's not a more specific statute of limitations provision.
And so, for example, this provision, it's 20 401a it applies to NEPA claims claims under the National Environmental Policy Act and a bunch of other important environmental statutes. The statute of limitations sets a six-year so pretty generous period for for bringing suit. But six years is measured from the time in which the claim accrues. And that was the subject in cornerpost to the company that was the petitioner and cornerpost argued that it hadn't been in existence at the time that this Federal Reserve rule that it was challenging came out, which was many, many more than six years prior.
So the argument was that it claim had not accrued for purposes of this statute of limitations until it had suffered an injury itself. And therefore the statute didn't run. And so the fact that it was more than six years from when the regulation was issued was no bar. And the government's argument was like, this can't possibly be right.
This would let parties come in and challenge, you know, ancient rules would be very destabilizing, but the majority rejects that. And this is a decision written by Justice Barrett rejects our position and says, no, this is the plain language of what accrual cruel means. That means that you can start a company or perhaps start a advocacy group long after a regulation or other policy is is promulgated and then you will still be allowed to challenge it as long as you sue within six years of your creation.
So it is regarded as having really substantial destabilizing effects. So one important thing about it is it doesn't apply to all environmental statutes. There are quite a few statutes that have another more specific and more limiting statute of limitations. For example, the Clean Air Act provides that you have to sue within 60 days of the time that the agency rule or decision is published in the Federal Register, and that is not subject to the corner post-decision.
But there are still lots and lots of other agency decisions across the board. So if you combine corner post with Loper, Bright would seems to sort of portend a lot more avenues for challenging agency decisions. I should have noted about Looper, and I should note about cornerpost that the decisions they rest on statutes and so Congress could change the law.
It's maybe a misnomer to say, overrule the decisions, although we often talk that way, or they could provide for judicial weights to be accorded to particular kinds of agency interpretation. They could establish a statute of limitations for particular kinds of agency decisions that would otherwise be subject to that cornerpost wide-open rule. That would be that's another big one.
Christophe Courchesne
Thank you, Sean. How about you, Bob?
Robert Percival
Yeah. The last one I talk about is the Securities and Exchange Commission versus Chair Casey because this has important implications. It was a case where a person was sued for violating the securities regulations with respect to misinformation of investor shares, and they saw it a substantial civil penalty. And George Casey argued that he was entitled to a jury trial, rather than having his case heard by an administrative law judge employed by the Securities and Exchange Commission and the court in a 6 to 3 decision by Justice Roberts ended up holding that the Seventh Amendment right to a jury trial applied in this case so that they couldn't impose and collect a substantial civil penalty for
violating securities laws without having it tried by a jury trial. Now, in the past, there had been a public rights exception to application of the Seventh Amendment right to a jury trial, that if the government was enforcing a public right created by statute, then you didn't have the right to a jury trial. But Roberts instead said that this actually sort of smacks of a common law fraud action in a common law, the Seventh Amendment was entitling you to a jury trial.
And it's kind of interesting that he takes kind of a non-originalist perspective and says that the Seventh Amendment is not limited to the kind of common law actions that were available when the Seventh Amendment was ratified, but instead to any statutory claim that's legal in nature so that if you're seeking damages rather than equitable relief, you can in fact invoke that Seventh Amendment right to a jury trial.
But certainly this is going to, in fact, make it more difficult to bring enforcement actions through administrative procedures rather than going to court and having a jury trial. In her dissent, Justice Sotomayor said that the epitome of a public right is anything where the government itself is making a claim of enforcement and that this was really unprecedented to hold, that the Seventh Amendment applies in these circumstances.
So the full implications of this decision for EPA's environmental appeals Board and its system of an administrative law judges aren't there yet, but it is kind of a frightening decision from the standpoint of making it more difficult to enforce regulatory statutes.
Christophe Courchesne
Thank you, Bob, for that Excellent summary. And thanks to you both. Sean and Bob, for your surveys of these important cases that came down in June from the Supreme Court. Thank you for joining us on Hothouse Earth and thank you to the listeners who are joining us today. Please tune in to the next episode where we're lucky to have Sean and Bob continue the conversation about these rulings and share their insights into the repercussions of these decisions and what the future holds for environmental law in the wake of these decisions.
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