The U.S. Supreme Court and the Future of Environmental Protection

Monday, May 13, 2024
Jay Austin

Senior Attorney; Editor-in-Chief, Environmental Law Reporter®

Today’s Supreme Court is, to borrow a phrase from a recent discussion, reshaping American life. It’s doing so across numerous areas of law, prompting commentators, professionals, and everyday citizens to adapt to a rapidly evolving legal landscape. A new ELI Research Report examines the Court’s current relationship to the nation’s foundational environmental laws, looking back to landmark precedents, analyzing recent decisions, and reflecting on future directions. The report documents the gradual yet marked shift from a widely held societal consensus about the priority of federal environmental regulation to the more constrained, piecemeal approach unveiled in the Court’s recent decisions. 

The Chevron doctrine of judicial deference to agency interpretations is central to this narrative, and the Court will soon rule on its future in the Loper Bright/Relentless fisheries cases. That ruling may prove disruptive for both agencies and regulated entities, as parties have relied over the past four decades on Chevron’s familiar framework. A decision that alters this long-standing administrative law precedent would effectively redraw the allocation of authority among all three federal branches. 

It’s not the only pending decision with broad, uncertain implications for environmental protection. With less than two months left before the Court’s term concludes at the end of June, we can expect a flurry of opinions—of the 60 or so cases argued since last fall, the Court so far has only issued 20 decisions. In addition to the Chevron question, there are potentially significant rulings on U.S. EPA’s authority to address interstate air pollution (Ohio v. EPA), the role and authority of federal administrative law judges (SEC v. Jarkesy), and the deadline for filing court challenges under the Administrative Procedure Act (Corner Post v. Board of Governors of the Federal Reserve System). 

These cases may join other momentous decisions from the past several Supreme Court terms that, taken together, are redefining the scope and breadth of environmental law as it has existed since ELI's inception over 50 years ago. The new report traces this arc, from the first Earth Day in 1970 to subsequent major laws enacted during the “environmental decade,” including on air, water, and fisheries resources, and analyzes some of the landmark cases related to these laws, then and now. 

court cases

In the Clean Air Act context, Chevron itself was a unanimous opinion, authored by Justice John Paul Stevens. It deferred to the Reagan EPA’s interpretation of “stationary source,” and in the process outlined what became known as the Chevron two-step. Stevens’ opinion took pains to point out that judicial deference to agencies was not new, but “well-settled” in the Court’s precedents. The case is now so well-known that it has become a subject of multiple parody videos, with law students demonstrating the principle to orchestrated song-and-dance sequences. 

While Chevron held sway for decades, in recent years the Court has chosen to ignore or circumvent it. Then in West Virginia v. EPA (2022), another Clean Air Act decision, six justices struck down EPA’s moribund Clean Power Plan,  implicitly coined a “major questions” exception to the Chevron analysis, and did so without referencing that doctrine. While Chief Justice John Roberts asserted that this exception is limited to “extraordinary cases,” West Virginia has in fact led to a proliferation of major questions litigation across all areas of federal regulation. 

Similar developments are seen under the Clean Water Act. Just one year after Chevron, the Burger Court issued another unanimous opinion in Riverside Bayview Homes, upholding the U.S. Army Corps of Engineers’ definition of “waters of the United States” in the context of freshwater wetlands. Applying the Chevron framework, Justice Byron White looked to the statute’s stated purposes, downplaying semantic analysis in favor of an ecological view that recognized the agency’s expertise and wetlands’ vital role in countering water pollution. 

Last term, however, the Court turned that approach on its head in Sackett v. EPA, an “absolute bombshell” wetlands case that curtailed Clean Water Act coverage as it has been understood for decades under multiple administrations. Justice Samuel Alito did not mention Chevron at all en route to finding no “clear statement” that Congress intended the Act to extend any further than relatively permanent, continuously flowing water bodies and wetlands with a continuous surface connection to them. Alito’s dictionary-based approach to the statutory term “adjacent wetlands” has been criticized, including in Justice Brett Kavanaugh’s concurrence, for being unduly semantic and failing to consider the Act’s ecological dimensions. 

Loper Bright/Relentless may become the next chapter in this story, this time against the backdrop of fisheries management. What began as a challenge to a National Marine Fisheries Service rule requiring Atlantic herring fishers to pay costs associated with on-board monitors has morphed into a broader question presented—whether to overrule Chevron itself. The Court’s willingness to address this question is all the more surprising because the briefs sidestep any concrete evidence that petitioners suffered a particularized injury from the monitoring rule. NOAA reported that in the less than two years that the challenged rule was in effect, “100 percent of the industry’s at-sea monitoring costs” for the program were reimbursed. 

Despite this threshold question about the plaintiffs’ standing, oral argument suggested that the Court again seems poised to issue a decision that will refashion long-standing administrative law practice, not only for EPA and other agencies charged with environmental protection, but for regulatory bodies across the federal government. 

Good environmental governance has long relied on sound, science-based agency decisionmaking. That fundamental premise may be eroding as a landscape that was stable for decades continues to shift—with more perhaps yet to come.