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The Jurisprudential Legacy of William Rehnquist on Environmental, Natural Resources, and Regulatory Takings Law

March 15, 2006

On March 15, 2006, ELI hosted an insightful discussion with our visiting scholar James R. May, Professor of Law at Widener University School of Law.

Chief Justice Rehnquist left an indelible imprint on the law in the four decades he served on the Court. He was a stalwart advocate of limiting federal powers and individual liberties, expanding states rights, and protecting private property from governmental regulation. Rehnquist also left his mark on environmental, natural resources, and land use law, and on the intersection of these fields with constitutional law. Justice Rehnquist’s appointment to the Supreme Court in 1971 corresponds almost exactly with the birth of modern environmental law. Chief Justice Rehnquist joined the Court shortly after the passage of these landmark environmental statutes and is the only Justice of the Court who was on the Court during its consideration of every modern environmental law case that came before it between 1971 and his death in 2005.

Chief Justice Rehnquist thus was uniquely situated to have a profound impact on the development of federal environmental law—both because of the overlap of his tenure with the development of the field of environmental law and because of his long tenure on the Court, more than half of which was as Chief Justice. The Court has heard nearly 300 environmental law cases since the dawn of the modern environmental era. Rehnquist sat on those decided after 1971, or roughly 252 of these cases, including 100 as Chief Justice. He wrote opinions in 25 percent of these cases, penning majority, concurring, dissenting and per curiam opinions 38, 12, 30 and 2 times, respectively.

The presentation was based on a co-authored work in progress with Robert L. Glicksman, the Robert W. Wagstaff Professor of Law at the University of Kansas. It focused on the opinions written by Justice Rehnquist in the areas covered, rather than on the opinions written by other Justices but joined by Rehnquist while he was on the Court. In particular, it analyzed the approaches that Justice (and then Chief Justice) Rehnquist took and the impact he has had on two related areas: the development of environmental law (including both the pollution and natural resource management components) and the development of the law of regulatory takings.