On June 27, 2018, Justice Anthony Kennedy announced that he would retire from the U.S. Supreme Court effective on July 31. This is likely to have a profound effect on the future treatment of environmental law in the U.S. Supreme Court. Kennedy provided the decisive fifth vote in Massachusetts v. EPA in 2007, which held that EPA has the authority to regulate greenhouse gases under the Clean Air Act. In subsequent cases, both Justices Thomas and Alito have indicated that they would like to overrule Massachusetts v. EPA. Chief Justice Roberts has accepted the holding, but in Massachusetts v. EPA he dissented on the grounds that climate change litigants should not have standing to sue even if they are states. While Justice Gorsuch as a circuit judge did not embrace Justice Scalia’s campaign to manipulate standing doctrine to keep environmentalists out of court, this could be a problem area in the future. Justice Kennedy also was a decisive vote in many regulatory takings cases, voting with the majority in all ten such cases heard while he was on the Court. See the paper I wrote on this for an ABA conference last year at: https://www.americanbar.org/content/dam/aba/events/environment_energy_resources/2017/fall/conference_materials/3_percival.authcheckdam.pdf
President Trump stated that he would choose Justice Kennedy’s replacement from a list of 25 people - twenty who previously were on his list and five others added in November in an announcement coinciding with the Federalist Society National Convention. Here are four of the people on the list:
Brett Kavanaugh, judge on D.C. Circuit U.S. Court of Appeals – tried to gut the Clean Air Act’s interstate air pollution provisions in a decision overturned by the Supreme Court with both Chief Justice Roberts and Justice Kennedy voting to reverse him (EPA v. EME Homer City Generation, L.P., 134 S.Ct. 1584 (2014))
Mike Lee, U.S. senator from Utah – 0% score from League of Conservation Voters, who co-authored an oped asking the Supreme Court to declare that the Endangered Species Act is unconstitutional as applied to the endangered Utah prairie dog.
Patrick Wyrick, justice on Supreme Court of Oklahoma – protégé of Scott Pruitt who facilitated Pruitt’s cozy relationship with oil and gas interests when he served as solicitor general of Oklahoma and Pruitt was the state attorney general.
Amul Thapar, judge on 6th Circuit U.S. Court of Appeals – at the last National Federalist Society Convention criticized the administrative state as the elitist brainchild of Woodrow Wilson and railed against EPA's regulations to control mercury emissions while ignoring their immense co-benefits, see video at https://fedsoc.org/events/environmental-law-without-congress-are-alternatives-to-legislation-eclipsing-the-congressional-role
I have been getting a lot of press calls on the impact of Justice Kennedy’s retirement. Here are links to some of the initial articles: https://www.washingtonpost.com/news/powerpost/paloma/the-energy-202/2018/06/28/the-energy-202-kennedy-s-retirement-could-bring-a-seismic-shift-to-environmental-law/5b33e27930fb046c468e6f60/?utm_term=.ee0b2c904ff3
Much has happened in the months since I last posted on this blog. Shortly after my last blog post, the Supreme Court of Colombia issued an historic ruling that the Colombian government must do more to protect the Amazon from deforestation in order to vindicate the rights of future generations to a healthy environment. The ruling came in response to a lawsuit filed in January by 25 youths (wouldn’t it be great if our courts acted so quickly?). I visited Bogota for the first time at the end of April where I met up with my son who had been traveling through Central and South America for three and a half months.
On May 18th Maryland Carey Law hosted commencement ceremonies for members of the Class of 2018. A pre-graduation award ceremony honored students who qualified for the certificate of concentration in environmental law. Receiving the certificate were: Hannah Catt, Sarah DiBernardo, Devon Harman, Shannon Himes, Taylor Lilley, Catherine McGrath, David Morgan, Megan Todd, Kerri Webb, and Zack Wilkins.
A major problem in global environmental law has been the impact of foreign companies, particularly in the extractive industries, on the environment of developing countries. I have been working with Professor Seema Kakade, director of Maryland’s Environmental Law Clinic, on a new project we are going to call the Transnational Environmental Accountability (TEA) Project. This project is the logical next step in our efforts to enable students to work on issues of global environmental law, as two Maryland students are doing this summer working in Malawi with the University of Malawi Chancellor College’s Environmental Justice and Sustainability Clinic. The law school has hired Zhang Jingjing, a former top public interest environmental litigator in China, as a Lecturer in Law to supervise this project. More details are available at: https://www.law.umaryland.edu/about/news_details.html?news=2485. I and my students are super excited about the TEA Project.
Despite shocking ethical lapses, Scott Pruitt continues as EPA administrator. I recently authored a piece in The Conversation piece on how Pruitt is trying to relax the nation’s most fundamental protection against air pollution by changing the process used to set national ambient air quality standards (NAAQSs). See: Scott Pruitt’s approach to pollution control will make the air dirtier and Americans less healthy, https://theconversation.com/scott-pruitts-approach-to-pollution-control-will-make-the-air-dirtier-and-americans-less-healthy-96501
The article I co-authored with former Naval commander Mark Nevitt that compares environmental law in the world’s two polar areas has now been published by the Boston College Law Review. Entitled “Polar Opposites: Assessing the State of Environmental Law in the World’s Polar Regions,” is now available online at: https://www.bc.edu/bc-web/schools/law/academics-faculty/law-reviews/bclr.html#item/3685. The citation is: 59 B.C. L. Rev. 1655 (2018).
I have completed a Transition Guide describing all the significant changes in the new 8th edition of my casebook, Environmental Regulation: Law, Science & Policy, which was published by Wolters Kluwer at the beginning of February. I am currently finishing a new Teacher’s Manual for the new edition, which will be available in time for professors using the new edition in their fall semester classes.
Tomorrow I fly to the UK for the annual Colloquium of the IUCN Academy of Environmental Law, which is being held at Strathclyde University in Glasgow, Scotland. One of the Academy’s most successful projects has been its “Training the Trainers” program in Asia. I am featured in a new film produced by the Office of General Counsel of the Asian Development Bank's Law and Policy Reform Program that describes this program. The film is called "Developing Environmental Law Champions: Training-the-Trainers Program". It can be viewed by going to the ADB’s website at: https://www.teachenvirolaw.asia.