Year in review: 2021 paved the way for enviro law action

Source: By Pamela King, E&E News • Posted: Sunday, January 2, 2022

Here are some of the biggest developments in environmental law in 2021. Francis Chung/E&E News

President Biden’s first 11 months in office have brought new environmental regulations for litigants to spar over — and new judges to referee the disputes.

The year’s biggest environmental law milestone — the Supreme Court’s October decision to review EPA’s climate authority — is thought to be the direct effect of former President Trump’s work to reshape the federal courts, which Biden is now attempting to recalibrate.

The unusual case asks the justices to weigh in on the scope of EPA’s power to issue climate rules under the Clean Air Act, even though no such regulation is currently on the books.

“That is a case that the Supreme Court I clerked at would never have taken,” said Sam Sankar, senior vice president for programs at Earthjustice. He clerked for now-retired Justice Sandra Day O’Connor in 2003.

Before the Supreme Court granted West Virginia v. EPA, a lower bench struck down Trump’s rule gutting the Obama-era Clean Power Plan, handing Biden a clean slate to craft a new regulation governing power plants’ carbon emissions.

The courts this year scrapped other Trump regulations, such as the 2020 Navigable Waters Protection Rule that significantly limited Clean Water Act jurisdiction, and turned away a conservative group’s attempt to chip away at an Obama-era marine monument.

Despite those rulings, observers say the Supreme Court — which now includes three Trump-appointed justices in its six-member conservative majority — appears poised to block the Biden administration from protecting broad swaths of land or issuing sweeping environmental rules.

While Biden has moved quickly to add judges of diverse racial and professional backgrounds to the federal district and appeals courts, he has not yet had a chance to fill a seat on the nation’s highest bench, which is often the final stop for high-profile legal battles.

“Biden might get favorable rulings in the lower courts, but if it’s a large enough issue, he’s going to hit that very conservative Supreme Court,” said Allison Wood, a partner at the firm McGuireWoods LLP.

Here are some of 2021’s biggest developments in environmental law:

SCOTUS climate case

In late February, the Supreme Court will hear arguments in the biggest climate case in more than a decade.

Depending on how the Supreme Court rules, the justices could significantly limit EPA’s ability to require systemwide emissions reductions measures for power plants — as the Obama administration did with its 2015 Clean Power Plan.

Many of the court’s current members appear ready to rein in the agency’s power (Greenwire, Nov. 3).

The Supreme Court could also weigh in on a much bigger question of how much authority Congress can hand to federal agencies through statutes like the Clean Air Act.

Schiff Hardin LLP partner Jane Montgomery said it is time for the justices to speak on the issue.

“That answer will either spur action from Congress to clarify EPA’s authority or it won’t,” she wrote in an email. “But at least regulated communities will have an answer about EPA’s authority to regulate non-emitting units and what a ‘system’ is or is not. The fallout will be squarely in Congress’ lap.”

Environmental groups and left-leaning states say they aren’t holding out hope for climate action from Congress, where Democrats hold a razor-thin majority that could be upended in the midterm elections.

Before the justices granted the case, EPA had told the Supreme Court that the carbon rule litigation was not worth the justices’ limited time, as the agency was still at work on a fresh rule and had no intention to return to the Clean Power Plan.

The agency still intends to release its proposed regulation by early July, which is around the same time the Supreme Court is expected to deliver its ruling.

The case, which the Supreme Court could have declined to take, has the potential to be a disaster for federal climate action, said Vermont Law School professor Pat Parenteau.

Four justices must vote in favor of taking a case, but five are needed to form a majority opinion. If the Supreme Court decided to take this case, Parenteau said, the justices supporting the grant must feel that they have five votes to do something.

“What that something is, of course, we have no idea,” he said.

Biden judges

As of this month, Biden has nominated 73 federal judges, surpassing the number Trump had tapped during his first year in office.

With the assistance of Republican leaders in Congress, Trump installed more than 230 federal judges during his four years in office, including three members of the Supreme Court.

Democrats and judicial activists say Biden or former President Obama should have had the chance to fill at least one of those high court seats. Progressives have called on Justice Stephen Breyer, the court’s eldest member, to step down soon so Biden can choose his successor.

Biden has also faced pressure to create new openings on the bench. He appears unlikely to do so, and the bipartisan commission he convened to study judicial reform this month handed off a report highlighting “profound disagreement” on expanding the court (Greenwire, Dec. 8).

But Biden has moved quickly to nominate record numbers of women and jurists of color to federal district and appeals courts. The Senate has now confirmed 40 of those picks — meaning Biden had more confirmed judges in his first year than any president since Reagan.

“Biden and the narrow Democratic Senate majority have been highly successful in attaining what they pledged to do: countering Trump’s adverse effects, particularly on the appellate courts, from appointing so many exceptionally ideologically conservative judges,” wrote University of Richmond law professor Carl Tobias in an email.

The Senate recently confirmed two of Biden’s four nominees to the 9th U.S. Circuit Court of Appeals, a West Coast court that frequently hears environmental cases. Over four years, Trump tapped 10 judges for that bench but was unable to transform the court’s leftward ideological leanings.

And at the U.S. Court of Appeals for the District of Columbia Circuit, which is often the final stop for legal battles over EPA rules, Biden has had the opportunity to nominate two judges.

Biden has not yet filled the seat held by Judge David Tatel, a Clinton appointee who said he would take senior status after the president chooses his replacement, but the president this year placed Judge Ketanji Brown Jackson on the D.C. Circuit.

Jackson is expected to be Biden’s pick for a Supreme Court nominee — if he has the chance to choose one.

WOTUS in flux

The courts have yet to offer a definitive answer on which waterways and wetlands are automatically subject to Clean Water Act protections.

Legal observers say they don’t expect clarity anytime soon — especially after the U.S. District Court for the District of Arizona this year struck down Trump’s narrow definition of waters of the U.S., or WOTUS (Greenwire, Aug. 30).

EPA has said it plans to issue a new WOTUS regulation that will likely differ from both the Trump Navigable Waters Protection Rule (NWPR) and Obama’s broader Clean Water Rule.

In the meantime, however, the agency has responded to the Arizona court’s ruling by reverting to the regulatory regime that predated the Obama rule.

“That regime is admittedly more confusing than the Clean Water Rule,” said Vermont Law School assistant professor Jim Murphy. He later added: “It’s definitely less consistent. The good news is that it is definitively much more protective than NWPR.”

Unlike Clean Air Act cases, which are generally consolidated in the D.C. Circuit, Clean Water Act lawsuits are scattered across federal district courts nationwide, giving Biden’s lower court nominees ample opportunity to sort through which streams and wetlands fall under Clean Water Act jurisdiction.

In a separate but related round of litigation, the Pacific Legal Foundation this year called on the Supreme Court to clear up 15 years of confusion after the 2006 case Rapanos v. United States delivered two competing tests for determining when a federal water permit is required.

The property rights-focused law firm has asked the Supreme Court to favor late Justice Antonin Scalia’s narrower test, which served as the basis for Trump’s NWPR (E&E News PM, Sept. 23).

Any Supreme Court ruling on the issue would shape the Biden team’s new WOTUS definition.

“Ultimately, the Supreme Court revisiting Rapanos is necessary for the [Biden] administration to proceed with interpreting the statute,” wrote Pacific Legal Foundation attorney Charles Yates in an email.

The justices could decide whether to hear the case, Sackett v. EPA, as early as next month. Like all cases angling to reach the Supreme Court, it faces slim odds of review.

SCOTUS invites monuments battle

Utah officials are gearing up to challenge Biden-era national monument decisions after the Supreme Court this year invited more disputes over designations.

In a statement accompanying the denial of a petition over a marine monument off the coast of Cape Cod, Mass., Chief Justice John Roberts said the court was open to “other and better opportunities” to examine the limits of the Antiquities Act (Greenwire, March 24).

The 1906 statute allows the president to create national monuments on “the smallest area compatible” with preserving landmarks, structures and objects of interest.

“Somewhere along the line, however, this restriction has ceased to pose any meaningful restraint,” Roberts wrote in March. He added that other litigants may bring challenges “without the artificial constraint of the pleadings in this case.”

At issue in the petition the court denied was a challenge of the Obama administration’s designation of the Northeast Canyons and Seamounts Marine National Monument, which covers a Connecticut-sized swath of ocean.

Trump — who tried to shrink other monuments — had attempted to walk back fishing restrictions within the marine monument, leading the courts to question whether judicial interference was warranted. Biden later reinstated the restrictions.

But a new Supreme Court showdown may be on the horizon.

In October, Biden said he would restore more than 2 million acres of public land to the Bears Ears and Grand Staircase-Escalante national monuments, which Trump scaled back while he was in office.

Utah Attorney General Sean Reyes (R) said in a recent statement that his office was evaluating its options to address Biden’s move and had hired the law firm Consovoy McCarthy PLLC, a firm with deep Supreme Court expertise, to assist (Greenwire, Dec. 6).

“We have done so because recent opinions from members of the U.S. Supreme Court strongly indicate that President Biden’s use of the Antiquities Act is the wrong way to protect such vast areas of southern Utah,” Reyes said in his statement.

He added: “We continue to urge Congress to work with the State, with local governments, and with Tribal nations on a long-term legislative solution for the conservation of these lands that would end the existing uncertainty and avoid a potentially acrimonious legal challenge.”

EJ at the fore

Federal judges and Justice Department officials this year continued to take notice of disproportionate pollution and climate impacts for low-income and minority communities.

The trend reflects increased White House attention on environmental justice after George Floyd, Breonna Taylor and other people of color were killed at the hands of police officers last year, leading to a new upswell in the Black Lives Matter movement.

While DOJ has been slow to implement some of the Biden administration’s biggest environmental justice goals, it last month launched a landmark investigation of wastewater disposal management in a predominantly Black community in Alabama (E&E News PM, Nov. 9).

The department is expected to make environmental justice a focus of its enforcement work.

Environmental justice also popped up in court decisions this year, including a recent dissent by 9th Circuit Judge Johnnie Rawlinson in a fight over a federal environmental review of a massive airport terminal in a heavily polluted California neighborhood populated largely by people of color.

The judge, a Clinton appointee, said the case “reeks of environmental racism” (E&E News PM, Nov. 18).

“The switch has really flipped on the discussion of environmental justice,” said Sankar of Earthjustice.

He later added: “That’s not a dissent you would have seen written a few years ago.”

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