Endangered Species Law & Policy

Yes, no, maybe so. With the passing of Justice Antonin Scalia, many have already started to prognosticate about the sea change that will inevitably follow. While it is certainly possible that such a sea change will come to pass, it also possible that the Supreme Court will remain much as it has been for more than a decade, with a staunch 4-person conservative block, a staunch 4-person liberal block, leaving Justice Kennedy to decide who wins and who loses. This possibility exists, because right now there are numerous moving parts that could impact who will fill the ninth spot on the Court.

For example, right now we do not know whom President Obama will nominate, if anyone – although from recent statements by President Obama, it seems clear that he will be nominating someone for the position. Next, we do not know whether the Senate will vote on the nomination. Because it is an election year, it is possible that even if the President nominated an individual that the Republican controlled Senate may otherwise have confirmed, that the Senate Republicans will filibuster until the next President is sworn into office, thereby precluding a vote on President Obama’s nomination. It is also possible that President Obama will nominate an individual that he knows the Republican controlled Senate will not confirm, resulting in a vote that leaves the vacancy open. These are just some of the possibilities in the short term, because if we try to look beyond the next nine months we have to make educated guesses about who will be the next President of the United States and whether the makeup of the Senate will dramatically shift. Notably, all of this doesn’t even take into account the fact that one never really knows how the Supreme Court Justice may vote on particular issues. Perhaps one of the best examples of this is Justice Anthony Kennedy, who was nominated by President Reagan but is often seen as voting with the liberal block on key conservative issues.

All of that said, there are no doubt a number of significant environmental decisions that are either before or bound for the highest court in the land, and there is the very real possibility that Justice Scalia’s passing will eventually be seen as outcome determinative. This includes cases like North Dakota v. EPA, which challenges the legitimacy of the Clean Power Plan rule promulgated by the EPA under the auspices of the Clean Air Act. And, In re: EPA and Dep’t of Defense Final Rule, which challenges the legitimacy of the waters of the United States rule promulgated by the EPA and Army Corps of Engineers under the auspices of the Clean Water Act. In addition to these cases, challenges are likely on the way for the recently finalized critical habitat rules and policy issued jointly by the U.S. Fish and Wildlife Service and National Marine Fisheries Service under the auspices of the Endangered Species Act, as both the regulated and environmental communities appear upset over their impact, or lack thereof. (See our February 8, 2016 post for a further discussion of the final rules and policy.)

More generally, depending on who replaces Justice Scalia, one could easily imagine a sea change in standing jurisprudence, making the federal courts more accessible to environmental challenges. (See Greenwire, New era begins for environmental law, Obama’s climate rule Feb. 14, 2016). Whether this will come to pass, and what impact Scalia’s passing will have on the Supreme Court’s environmental jurisprudence, only time will tell.