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, in the second of two episodes about U.S. Supreme Court rulings this last term that upended administrative law and threaten to diminish environmental protections.
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This podcast is a production of the Maverick Lloyd School for the Environment, a Vermont law and graduate school.
Christophe Courchesne
Thank you for joining us for another episode of Hothouse Earth. I'm Christophe Courchesne, director of the Environmental Advocacy Clinic and interim director of the Environmental Law Center here at Vermont Law and Graduate School. And I'm your guest host today. In our previous episode, we had a great conversation with guest Sean Donahue, a partner at Donahue, Goldberg, and Herzog, and Bob Percival, 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.
During the last episode, we discussed the various rulings by the United States Supreme Court during their last sessions. There was so much to unpack. We have to continue the conversation. So this is a continuation of the last episode, which, if you haven't had a chance to listen to it yet, please go back and do so. It gives you the summary for these cases from Sean and Bob and gives us the background so we can continue the discussion today.
Let's ask our two practitioners and scholars about their thoughts on these end-of-term Supreme Court rulings and what they mean. So we have an interesting landscape, huge cases, big principles that many lawyers and advocates, agencies, stakeholders have relied on for many years are now either in question defunct. Definitely. There's been huge destabilization, to use a word that I've heard Sean use, and certainly, a big part of a number of the defense at the end of the term as well, that these decisions sort of destabilize a lot of areas of law that we had assumed were at least relatively static or could be relied upon.
So I guess my question for both of you, thinking about the term and thinking about these decisions, you know, what does this mean for environmental law going forward as an enterprise, really, it's so centrally focused around the powers of these agencies that set the rules and allow us to protect the public that safeguard our natural resources.
How does this quartet of cases, as well as other developments over the last few years, what does it say to you about environmental law right now?
Sean Donahue
I'll take the dim view, leaving it to Bob to show the silver lining. No, it's. It's bad. It's troubling. The Ohio decision really feels like a chastisement of the EPA in search of a procedural mechanism. Just kind of like we think EPA needs to be trimmed back and here's an opportunity to do it. This set of decisions, combined with major decisions from prior terms, including the Sackett Clean Water Act case and the West Virginia versus EPA.
Major questions, less Clean Air Act case signal a period where there's clearly a Supreme Court that is skeptical is a nice word. Hostile is a less nice word to this area and the federal federal government. To me, it's troubling because there's a whole lot of statutes. It's not it's not like this is just kind of a policy initiative of a particular administration.
There are a lot of very strong statutes that, you know, that Bob has been writing about and teaching people about. And those statutes are all still on the books. And it troubles me, as I suggested before, that it feels like some of this is a kind of deregulatory movement that's coming from an unelected source that really shouldn't be making sort of major reforms and what our laws say that should be for Congress.
That's often sort of the rationale of these very changes that the court is making that it should be for Congress. But it's the court that's doing this for a long time. I told students that it appears that environmental law, that since about 1998 with the Clean Air Act amendment, we've entered a period of kind of stalemate legislatively where we couldn't get statutes equal to the challenges we face.
But it was also not possible for opponents of environmental regulation to achieve significant movement from their perspective. The laws are pretty popular generally. It was really hard to repeal statutes when once they were on the books. I feel like now there's actually been a lot of ground lost. You know, the fact it was a huge sort of revision of what everybody thought the statute meant.
So that's all very troubling. It's troubling to know that a court that issued a decision like Ohio is going to be there reviewing everything that the EPA and other agencies do for quite a while. On the other hand, if it gets people paying more attention and realizing that there is an active dispute about whether to have federal environmental laws like we thought we had, I think that could be a good thing.
Most of the structure remains in place. Most of it continues to require action and continue to expect that judges, even if they get some decisions wrong, will generally follow what the law says. And we should insist on that. And for younger people, it's kind of frightening to see backsliding when we face the most challenging problem we've perhaps ever faced.
But it's a super exciting time. We're rethinking everything. We've achieved some big things. We've got, you know, big, huge climate legislation passed for the first time. There's more expertise coming in all the time. So this is backsliding. But we're also in a period where forward motion is more possible than it was, say, in the nineties. So I don't I don't think that there's cause for despair, there's cause for some anger, some concern, rethinking of strategy, but there's plenty of room to move things forward and change the dynamic.
Christophe Courchesne
Bob Shone was starting off very dim, but offering some notes of hope around possible bright spots coming out of this. How about on your end? How do you see it and what it means for this area of law?
Robert Percival
Well, now, I agree with Shaun that these are depressing decisions. It still remains to be seen just how great their long-term impact will be. It is also true, as Shaun emphasizes, that virtually all of these could be taken care of by Congress if there was a blue wave that swept into power. A pro-environmental Congress. Congress has been in gridlock for the last couple of decades on environmental issues.
But each of these could be fixed legislatively. And a few years ago, the right wing was championing this proposed legislation called the REINS Act regulation from the executive in need of scrutiny. They basically would have said no regulation can go into effect if it's a major regulation unless it's specifically approved by Congress. And that's almost what the Supreme Court's been doing.
Now with the major questions doctrine now saying agencies get no deference, essentially saying, well, if Congress didn't specifically say this is what the agency has to do, that we're not going to allow the agency to do that. So another bright spot might be that, well, if Trump becomes president and there's no Chevron deference to what his agencies are doing in trying to roll back regulations, maybe just like happened in the first Trump term, that they weren't nearly as successful in repealing regulations because they kind of run roughshod over the Administrative Procedure Act.
In many instances, this will make it more difficult for agencies to roll back regulations. And I also would point to the fact that the right-wing agenda gets so extreme at times that even this super-conservative Supreme Court won't accept it. And that's illustrated by the Consumer Financial Protection Board decision where the argument was made that the agency was unconstitutional because it's not funded through the normal appropriations process.
It gets its money from the Federal Reserve and by a 7 to 2 vote, with Justice Thomas writing the majority opinion, the court said that's not true at all. Only Alito and Gorsuch were willing to say the Consumer Financial Protection Board was unconstitutional because of these right-wing victories in the court. Red state litigants are getting ever bolder.
And I would just point to what I think is one of the most laughable lawsuits that's been filed. It's called Alabama versus California, where a group of red states are suing the blue states for allowing their state common law courts to hear lawsuits against the fossil fuel industry. And they're suing directly in the Supreme Court's original jurisdiction over disputes between states.
By making the argument that anything that hurts the profits of the oil industry hurts US red states. It's similar to what when Scott Pruitt was attorney general of Oklahoma before he became EPA administrator, Oklahoma on his behalf sued Colorado for having legalized marijuana on the idea that this was going to allow more marijuana to be transported into Oklahoma across state lines.
And the Supreme Court dismissed it very quickly. I assume that's what will happen in the Alabama versus California lawsuit that's been filed, although the right-wing machine is trying to gin up all these opinions about how the blue states are trying to distort national energy policy and the like, but it does at least show that the right-wing can go too far, even with this very conservative Supreme Court.
Christophe Courchesne
As we think of the litigants, Bob and Shon, who are emboldened now, they’ve probably been emboldened for some time. But where do you see some of the bigger risks to environmental protection from the pathways that have been left open by these decisions? There's certainly the Sackett decision provided a sort of sweeping reduction in protections of the Clean Water Act last year.
And certainly, there the knives are out for all kinds of different environmental protections in potentially lower courts and in other, other venues, as Bob alluded to with the original jurisdiction docket of the Supreme Court. Where are the biggest risks, Sean?
Sean Donahue
Yeah, I mean, it's hard to say. And I might dodge the question by saying if perhaps or if noting that so far the court has not pushed it has come close to but it has not really adopted and certainly hasn't applied to environmental regulation, the non delegation doctrine, which is another conservative means of rolling back the so-called administrative state, is of course especially potent because it limits what Congress can do instead of just requiring Congress to be more precise, so that if that were to be the next project and this kind of remarkable sequence, that that would really be scary because a lot of the statutes certainly easily satisfy the protests to escape non delegation scrutiny that has been in place for almost 100 years. But if that test were changed, who knows? What worries me as much as the threats to particular areas that might depend on agency expertise or leeway in statutory construction is something else, and that is the ability of the agencies to do their job at all resources. And we know that under the Trump in the Trump years, the agencies lost a tremendous amount of personnel, particularly sort of scientists and other experts who were really critical to them doing their job properly.
And so the combination, for example, if Trump were to win again, I would worry about the departures and either those positions being left empty or being filled by people who can't do the job and are there specifically to not do the job. In addition to that, that we kind of saw last time a lot of these changes that the court has prompted in the last few years in these decisions are ones that put tremendous new strains on the agency.
So doing rules where there's no deference can be done. And sometimes the agencies will be able to fit their rationales well with with what the court is now demanding in terms of emphasizing fact-finding and really documenting the long pedigree of an interpretation, all those things. But that takes resources. The corner post is an obvious example. Just you could have more lawsuits.
Loper Bright will invite challenges to old policies and challenges to new policies that wouldn't have been challenged before because they were sort of clearly going to be upheld. So I worry about that, that sort of degradation, innovation of the relevant parts of the government itself, which are really critical to carrying out our environmental law.
Christophe Courchesne
How about you, Bob?
Robert Percival
Well, I would say that right now there's a full-court press to try to get the court to reverse one area where it's been really good, and that is that respect for federalism. The court has stayed out of intervening in state tort litigation. And there are now dozens of lawsuits being brought by cities, counties, and states against the fossil fuel industry for having engaged in a massive disinformation campaign about the impact of their products on climate change.
Those are being brought under purely state tort consumer protection laws, and the court has pretty much stayed out of it. There was a case it heard in 2021 where it involved Baltimore actually bringing one of these lawsuits. And the question was the very technical issue of civil procedure. What must the reviewing court look at and decide about whether a remand order back to state court was legal in all of these cases, the fossil fuel industry has tried to remove them to federal court and then argue on the basis of that 2011 American Electric power decision that the Clean Air Act has displaced the federal common law of nuisance.
That was a very different case. It was brought as a federal common law action and it sought a regulation to limit emissions of greenhouse gases. The state litigation is very carefully crafted so that it doesn't ask for orders about what's going to be our policy for controlling greenhouse gas emissions. It's all brought under state common law. And when the Baltimore case was argued in the Supreme Court three years ago, they said, well, now that we're in the Supreme Court, why don't you just reach out and preempt all climate litigation and say, because it's a global problem, it has to be governed by federal common law, and then voila, because of American Electric power litigations all
wiped out by the Clean Air Act. And Justice Amy Coney Barrett in oral argument said that would be awfully aggressive of us herself, the daughter of an oil industry executive. And then in April of last year, the court denied cert. In all of these cases where every single lower court has said they belong in state court and remanded them back to state court.
Now, there's this Hawaii case where the Supreme Court of Hawaii, as like all the others said, this is purely state common law litigation. It's not preempted by the Clean Air Act. And there's a major push now to get the Supreme Court to take that case and wipe out all state climate litigation. On June 10th, the court asked for the views of the solicitor general on whether or not should take these cases.
Justice Kavanaugh dissented when the court denied cert in the past, so he's likely to vote in favor of the oil industry in these cases. If the court does that, then it's it's like kind of abandoned all judicial restraint. Chief Justice Roberts has been trying to kind of moderate the tendency of the right-wingers on the court and have the court take only incremental steps, which is why they kept putting off whether or not to overrule Chevron.
But now he's kind of abandoned that. And it's all in on, you know, even major changes that roll back the environmental laws. So it's a brave new world we're in now, and there'll be lots more environmental litigation going to the Supreme Court.
Christophe Courchesne
So the Supreme Court's a big new venue where it had been quiet in various fronts for for many years. And now it seems every term we have some major set of things to contend with. Are there other things you're looking ahead to next term to watch things that are on your radar screens as points to keep an eye on as the as the term evolves, all arguments to come in the fall, or what have you, that may make a difference and we may be talking about it this time next year or.
Sean Donahue
Well, there's a whole series of significant rules that the Biden administration has issued. For example, a very conservative panel of the D.C. Circuit denied a motion to stay the the EPA's methane oil and gas rule under the Clean Air Act, a significant rule because of the importance of methane as a climate pollutant. So that, one, there may well be efforts to get the Supreme Court involved in that.
Then there are a series of other rules. The replacement for the Clean Power Plan that that that also there are pending motions to stay and we may see others. And so how the court whether the court sort of makes it a regular practice to just say things even on relatively thin grounds, there's been some suggestion of a little bit of discomfort with the use of the shadow docket.
So that'll be a big thing that I'll be looking at this coming term.
Robert Percival
And the court's already granted cert in the ANEPA case, which kind of surprised some people because, you know, NEPA was recently amended and CQ issued new regulations, but the Supreme Court still took this NEPA case from Utah, where the courts, lower courts had ruled that you should at least consider climate change impacts if you're going to license a new railroad to make it easier to transport fossil fuels.
So that will be on the court. Stock at the Nuclear Regulatory Commission is asking for a review of a decision by the Fifth Circuit, saying that NRC has no authority to license interim storage facilities. So that and also the California waiver decision that was reached by the D.C. Circuit upholding this longstanding decades-old practice of letting California have more stringent regulations under the Clean Air Act.
That's something that the industry groups are taking. The Supreme Court and it's actually kind of laughable. They made the argument in that case that the equal footing doctrine on which states are to be admitted to the union on an equal footing with one another means that California should not be allowed to have more stringent clean air standards and I kind of questioned the standing of the red states to make that argument because they're essentially saying we've been deprived of our sovereignty; because we're not also allowed to make more stringent regulations than the national minimum when that's the last thing these red states would ever want to do.
Christophe Courchesne
As we sort of wrap up our discussion today, one thing that's on my mind is how should students look at this? Shun began with some reflections earlier on that. How should students look at this, this landscape, especially folks coming into law school or engaged in their studies and internships or extra chips, trying to figure out how I fit into this field and where where should I devote my energies in light of this sort of bleakness at the federal judiciary?
If you were starting out, Sean and Bob in law school today, how would you think about these questions, knowing what you know now?
Sean Donahue
I think that it's a great time to be going into environmental law and policy. It's, you know, the problems are huge, but you kind of wouldn't want it otherwise, right? It's like that's why you choose to devote your career to it. There's a lot of movement. There's positive movement as well as negative. As I mentioned, big new climate laws, a lot of progress, and say a lot of progress out there on the ground with clean energy, and just a ton to do.
What it means is it's it's really hard on those who compile environmental law. Casebook The law has become very unstable, but there is need for and room for advocacy, for pushing back, for shining a light on some of these things that are were going on in corners of the law that didn't get a lot of broad attention. So I think that's actually a pretty easy question.
It's a great time. There's going to be a need for a lot of new ideas. How do we protect wetlands if you know, the way we thought we could do it is not possible, at least without the new legislation? What do we do to get that legislation? One can be despondent about where the court's gone.
I think it's very disappointing that the court has taken on this role, and I think a lot of the decisions are sort of not technically impressive, but in terms of reasons to want to go in and join, join the fight and bring about change, I think it's a great time.
Robert Percival
Well, speaking of Case books, the new 10th edition of my case book came out and it, of course, includes West Virginia versus EPA and the Sackett decision. But as Sean mentioned, it's a moving target in the section where we have an excerpt from Chevron, I note the oral argument and Loper Bright. And so it looks very likely that the court's going to overrule the Chevron Doctrine.
So at least I predicted correctly in that respect. You know, I would say we have to stress to law students that the stakes are really high because we've lived in a government where there was tremendous respect for the rule of law. It always amazed me that when the Supreme Court comes down with a decision, the executive branch complies with it, and I think the most dangerous thing the court did this year was the decision in the Trump case, the decision on presidential immunity because it said that the president has absolute immunity for official acts, that courts cannot inquire into the motive for the act, and that any evidence of an official act cannot even be
introduced at trial when someone is being prosecuted for an unofficial act. And it seems to me that President Trump, if he doesn't like a court ruling, could simply say as an official act, I'm directing the executive branch to ignore the court decision and he can't be held liable for that. And if that happens, then the rule of law, respect for our court system will just erode and it will be as though we have not had the kind of proud constitutional tradition that we've had all along.
Sean Donahue
Yeah, I, I agree with that. I agree 100% with with that assessment of where the real damage was this term and could not it better.
Robert Percival
So, I also would say to law students - vote. That's my advice to you vote because the stakes are so high.
Christophe Courchesne
Well, thank you both for joining us today on Hothouse Earth and being part of a wonderful conversation about a very difficult term at the Supreme Court. Not always a pretty picture Every, every direction you look.
Robert Percival
Thanks
Sean Donahue
Thank you.
Christophe Courchesne
Thanks also to all of you listeners that are joining us today. I do want to say briefly that at Vermont Lynn Graduate School, we have a wonderful summer program in the Environmental Law Center. And if you come in the future to join us for that, you might just get a chance to learn from one of these two gentlemen, Shawn or Bob, who have been wonderful additions to that program over the years.
And the students really could not appreciate the stakes any better from learning from these two wonderful teachers, practitioners, and scholars. So thanks to everyone. And please tune in again soon for the next edition of Hothouse Earth.
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