The Supreme Court's Continued Climate Take

There's a lot to get into here, from the continued attempt to dismantle the quote unquote administrative State, to the way that the Clean Water Act is being targeted in a case coming up next session, to how litigation remains a very important tool even with the Supreme Court on fire. We're going to get into all of that and more coming up after this quick break.

agency is going to address something that has big economic and political consequences, it needs to be able to identify something really clear in the statute that gives it the authority to do basically exactly what it tried to do. And you know, it's sort of obvious just from describing the doctor that they pitched to the court that it

is inherently deregulatory. You know, it only applies when the government wants to do something, and the kind of tests that it asks agencies to overcome is one that will be hard, if not impossible, to overcome in most cases. So,

you know, they took the case to the court. The court accepted the case, and at the end of its term, in the last day of its term, actually issued a decision in the case that it kind of accepts the general premise of what West Virginia and those on its side I'd asked the court to do, but doesn't go all the way somewhat thankfully, So the court kind of

accepts the idea that the major questions doctrine exists. It you know, describes it using that name for the first time, and it says that in certain you know, unusual cases, in certain extraordinary cases, it's going to apply this this sort of common sense and also constitutionally based assumption that Congress didn't mean to give agencies, you know, broad authority to do things like reshape the market or you know,

impose a really significant regulation. So I say it did kind of go all the way because it it does, you know, have that limiting language there. Does the Court does say, you know, it's not supposed to apply in every case, But the decision is also pretty mushy in terms of saying what it does apply and the factors that it's going to consider. So it's a little hard to say what the effect of the decision will be because we don't have a lower court decision applying it yet.

But you know, I think it's safe to say that the reason this doctrine was kind of invented and created and taken to the Supreme Court was because it's deregulatory. It was kind of another tool in the toolbox of people who don't like federal regulations. And we know from what has happened, you know, in the run up to the decision and after it that that's exactly how it's

being used. So we know that people have kind of been making noises, either in their comments to agencies or in briefs before federal courts or press statements that they think that, you know, a whole host of federal regulations should be challenged on this basis, and that ranges from things like the Department of Transportations fuel efficiency standards for vehicles, the new rule that the SEC is working on related to climate disclosures, things going all the way down to

things that seems pretty odd, major like the PA's rules regarding overcoming tampering preventing tampering of cars to get around promission standards.

service of environmental and public interests. The IRA is first and foremost as a spending bill, So one of the the things about it is that it's basically giving money to a whole lot of different sectors, including the clean energy sector and the oil and gas sector, in the form of various tax credits and other direct spending. And that kind of policy work is not the sort of thing that the Supreme Court is going to have a lot to do with or the federal courts in general,

because it's spending. This isn't regulation, And politically speaking, that's actually been the secret to making progress legislatively on climate is to say, like, let's spend our way out of

this problem, let's invest in a clean energy economy. And the deal, of course, was that this had to go along with a lot of oil and gas and problematic spending as well, including in technologies like carbon capture and sequestration and blue hydrogen which are at best unproven, at worst really just you know, the same old stuff in disguise.

So on the IRA, some of the problematic elements have basically been the parts that are going to make it easier and cheaper to expand fossil fuel infrastructure across a lot of places in the country that already have a lot of that infrastructure, and that as a result involve a lot of pollution burdens on the people who live there, and so ironically, a lot of those communities are the foundation of a movement for climate justice that is very

much part of the political support for this legislation and for President Biden's overall success in the last presidential elections. So it's ironic that they're going to in many respects see the raw side of this deal. So what role does litigation play? Well, nothing in the Inflation Reduction Act, Nothing in there limits the role of traditional environmental laws. And that means that all of that infrastructure, oil and gas and problematic pollution generating infrastructure is going to be

subject to those laws. And so litigation is going to have a substantial role in making sure that any development that's supported under this act is going to be is going to have to pass through the gauntlet of those laws. And organizations like Earth Justice are very much going to be helping those communities fight back to make sure that the future that they get out of this bill is the future that they want. Anyway, we could go into that a little bit more, but i'll like Koti talk about the Court.

up and go home. It just means that, you know, as with any challenge in litigation, you have to be forward thinking and you know, and kind of smart about how you approach litigation and think about where the risk is and think about where you can make progress despite

that risk. And as Sam I think kind of previewed, you know, there's lots of sort of bread and butter environmental litigation that just isn't going to make its way up to the Supreme Court because it doesn't implicate the kind of big picture issues or principles that the Supreme Court is concerned about, and that those.

even in figure cases. You know, we at our Justice had a pretty important Clean Water Act case a couple of years ago that our litigators what for the Supreme Court. And you know, it was the five four version, not the sixt three version. But even so, you know, we still won that case and would have won it under this court. So and that's just a matter of being, you know, understanding how this Court looks at statutes, understanding the perspective of the Supreme Court, and speaking in the

language they want to be spoken to. Right, So that's just litigating well, and you can still win cases that way. So you know, I don't mean to be like rosy eyed about everything, but I think there's a certain degree of just like, really good glorying will still win cases, and really strategic glorying can still make a big difference.

environmental laws in favor of permitting things like pipeline. And I want to ask you specifically about the Mountain Valley pipeline in a minute too, but in general, yeah, I guess how is Earth Justice approaching that that conversation and what are the things that you're kind of hoping to not see in the final version of that.

office they haven't. We haven't seen a more recent version of this side deal. In fact, the version that we have seen doesn't even include what it. What we gather are some specific deals about the the m v P the amount of value pipeline. So so a lot of what I'll say here is based on something that may not be the current deal. I mean that said that, the version that we saw from a few weeks ago includes a couple of major provisions that are problematic on

their own. One is a series of provisions that are designed to uh in quotes, streamline the permitting process, and what that functionally means is making it harder to well making making it easier for agencies to do NEPA analyzes by by making those analyzes less thorough or allowing them to do less thorough analyzes, and then by making it harder for people to comment and seek judicial review on

those analyzes. You know, for example, the statute of limitations for NEPA challenges in most cases of six years, and under this, under the draft that we've seen, it would be five months in some cases, And that may seem like, well, that geez, that five months you should you should be able to know if there's a problem with the project, But in fact, many of these projects get approved long before anyone in a community has any idea that that

something is up. And so given the way that we notify communities about what's going on, five months is often a laughably short period of time for them to be able to respond in court. There's also a bunch of other provisions that essentially require the president to prioritize oil and gas large oil and gas development for special attention through the permitting process and anyway. And there's also some

things that affect the Clean Water Act. There's some things that that are generally pro electricity infrastructure, but also contains some problematic visions. So there's a lot of stuff in there. We don't really know what the final deal is going to be, but we also know that, unlike the IRA, there's going to be a real legislative conversation about this. We know that, you know, the House hasn't already hasn't

passed this. This may be a deal among a couple of senators, but that doesn't mean that the House of Representative is going to do it. And you know, as we hope the IRA is going to be passed and this side deal is going to have to pass independently, I'll let Kurtate talk a little bit about what the rumors of what we've heard about this Mountain Valley pipeline, and you know, the side deal also includes this slightly odd judicial review provision as well.

they're already familiar with it. And so Mount Value Pipeline's first case got assigned to a panel in the Fourth Circuit and most of the later cases related to that pipeline have also been assigned to the same panel, and Mount Value Pipelines upset that it has lost some of these cases and already complaint to the Fourth Circuit itself, so you know in some of the decisions that it's lost, and I should be clear it hasn't lost all of

these decisions. When when Mount Value Pipeline is making this claim, it excludes from the baseline of the number of decisions that it's talking about a bunch of decisions related to condemnation, which is its authority to take land for the pipeline.

the Fourth Circuit in its petitions. You know, when it loses a case, it's petitioned for rehearing on bog which just means it's asked full Fourth Circuit to consider these decisions. And it's kind of jabbed at the panel in those filings, and the Fourth Circuit has been full Fourth Circuit, so including other judges right, hasn't.

They're like thoroughly recent decisions. It's not like they're like knee jerk anti pipeline decisions. They're just holding the federal agencies, which you know, have obligations under federal statutes.

set of judges, and that's like psychoanalyzed judges. But I can't imagine that the DC Circuit is going to be you know, that pleased that you know, this pipeline company thinks that, like, you know, they've they looked around the country and wanted to pick their judges and decided on.

an industry that that's where I go. Now, certainly, if they had said we want to go to the Fifth Circuit, I would have number one said, well, I can understand why, and number two I would have been all the more distressed that that they really were just, you know, forum shopping in the most naked way. But you know, so anyway that I share Curty's concern that that we're moving specific cases around, I do think it's sort of funny that they may be out of the frying pan and into the fire.

which involves the Clean Water Act. And you know, the Sackets have been serial litigators on this issue and have been to the Supreme Court before, where they won nine to zero on a fairly straightforward question about whether or not they had a right to be in court at all on this They're a couple whose claim is based on their desire to get a permit to do some development and their belief that they shouldn't even have to

get a permit. To be clear, if they had applied, they almost certainly would have gotten a permit, but they don't even feel like they should have to get one. And the permit is to is to fill in some wetlands on their property. And the real underlying question is what does the Clean Water Act protect? And everybody understands that the Clean Water Act protects lakes and rivers and

the ocean, you know, big rivers and the ocean. But the fight for some time from the right has been to constrict the applicability of the Clean Water Act to smaller streams and to wetlands. And of course any scientists would tell you that there's no way to protect the water quality and downstream rivers and lakes in those bodies that nobody nobody contends aren't protected by the Clean Water Act.

But if you want to protect those water bodies, you need to protect the upper parts of the watershed, which often involves smaller rivers, uh and streams, and then the wetlands that that feed them. So the there's a lot of industries that would like to be able to fill in wetlands and uh and and frankly pollute areas that that currently the Clean Water Act protects. And by arguing that the Clean Water Act doesn't protect those things, they're

essentially an accomplished deregulation. So they're not changing the protections of the Clean Water Act, they're changing where they apply. Now, the Court has been very interested in this issue for a while, and back when Justice Scalia was around, he wrote an important opinion that only that only attracted three other boats. It was it was only an opinion of

four justices and therefore wasn't controlling. But it suggested a much more constricted understanding of what the Clean Water Act protects. And we know that that I you know, I think everybody is pred thing that this Court will will try to put Justice Scalia's test in charge, which would again be a much more restricted understanding of what the Clean Water Act protects. That's that's the blockbuster. But there there are some other, maybe less less appreciated cases that will

have a lot to do with environmental law. I mean, it's not always environmental law cases that in fact that that effect what environmental law does, because administrative law, the law of regulations is props up and lots of lots of context, not just the environment right right.

and pop trying to get something done. But it's it should come as no surprise that organizations like the American Petroleum Institute are happy to file major amicus briefs and the Sackets are being represented by by folks who are movement and agenda lawyers. So this is this may not have been you know, I'm not sure anybody called them up and say, hey, you should try to build something

and then we'll make a case out of it. But certainly when their case popped up, it attracted a lot of attention and a lot of support because it was a it was a vehicle that a lot of not mom and pop operations were interested in seeing succeed.

state's control, not the federal government's control. So there's it's got to be really clear when there's a federal statue that invades that traditional state authority. You know, all these kind of clear statement rules is what they're called in the law, that basically act as like thoughts on the scale against federal power or agency power or this is like two of trying to develop additional tools that can be used in later cases and later challenges. So it's

not just it's about the Clean Water Act. All these groups have a very obvious interest in avoiding the application of the Queen Water Act, right, but it's also that they see this as another opportunity before this court to kind of establish broader legal principles that they can then use going forward.

kind of swinging for singles. They were trying to win small and individual cases and build big And what you're seeing in cases like Sacket is I think the other side on these things is assuming that they're going to win the narrow case, they're pretty sure they're going to win the Sacket's case, and they're swinging for the fences

to get broader principles. So in the West Virginia versus EPA case, all of us on the outside were saying, why would they have taken this case about a regulation that doesn't even exist if they were going to say that the regulation was fine. So we strongly suspect that they're going to try to strike this regulation down. So the fight is really about how far do they hit that ball into the outfield and do they get a

home run? So what you see in the briefs on the right is just egging the court's conservatives on to say as much as possible through the vehicle of the case.

balve initiative that was passed in California. It's called Proposition twelve, and it's a law that prohibits people from selling pork in California that is derived from an animal that was confined in a cruel manner, which is, you know, to find just things like you know, preventing animals from being all lie down or turn around or being in a space that's too small. And we're pretty users have challenged this law at violating what's known as the Dormant Commerce Clause.

this principle can be violated. One it is like when a state sort of literally writes a law that says like you know, if it's if it's Texas, and they write a lot it says like Louisiana products can't be sold here.

burdens on interstate commerce. And the last one, which is kind of the most important for the discussion we're having, is this principle called the extra territoriality principle, which is the idea that if they're even if a law is like written to address in state activity, if it has effects outside of the state that can raise concerns that

would require the application of a constitutional test. And you know, obviously this case is important on its own facts, but the reason it's important in a broader sense is that folks have challenge laws like renewable portfolio standards under this extra territoriality principle. You know, the idea being if a state says, you know, x percentage of our energy has to come for renewable sources. We live on an interconnected grid, and so that has effect on the production of energy

outside of the state. And in a sort of like weird moment of potential hope, conservative judges, a lot of conservative judges, i should say, not all of them, but are kind of unhappy with this extra territoriality idea because you know, the whole dormant commerce clause enterprise is not really based in the text of the constitution in this extra territoriality principle is like kind of the most formalist of all that, right, It's like, if there are some

effects that you question, it's constitutionality. And like almost everything has effects. Almost everything in our modern world has effects outside of the state. And so just Ascorsage actually wrote an opinion when he was on the Tenth Circuit upholding Colorado's renewable portfolio standards under this under a challenge based

on this extra territoriality principle. And so you know, I think there's a chance that in this in this case, the court maybe goes towards limiting that and then like keeping those kinds of RPS laws on safer grounds, not you know, in the text of the opinion, but sort of as a consequence of the opinion. So that's one

to watch as well. And then there are just kind of like other cases that you know, you might not think of as environmental cases, but you know, the court's hearing a big affirmative action case next term, and you know it'll be important to see what the Court says about that for things like you know, environmental justice laws or projects or programs, and you know which like try to protect overburdened communities, and often there is right up

corollary with race, and so understanding what the court thinks about when you can address those situations is going to.

about state standing. And that's totally you know, it's the Court's will be taken like maybe two sittings worth of cases, so there'll be more more to come.

pretty small in the grand scheme of things. In other countries, it's an order of magnitude, if not less than that, in terms of what the resources are there. Having said that, those those organizations and regular old people in other countries have been very successful in pushing back on international and US oil companies for the local harms that have been

happening where they have resources to bring those cases. Again, the public interest legal community in those in countries like you know, South Africa or Australia or Latin America, you know, in general, they're just much less well resourced than we are in the US, and the structures for public interest law are much less developed. But the flip side is some of those countries have provisions in their constitution that

are more directly relevant to those claims. And so we're seeing, for example, in places like South Africa, where where planets have been able to say, hey, look, you know, we have legal protections on these things, and you the courts need to figure out ways to make bring those protections to life.

violates the state constitution. And then there are also states like Louisiana and Hawaii that have public trust doctrines, and those are doctrines that say that the state government that state land is that there's an obligation of the government to be protecting that in the public interest. And in some of those states we've been able to make some headway, and other public interests litigans have been able to make some headway and saying hey, your state courts need to

do something with these things. These can't just be written

on paper. And then finally, there are states like New York that are enacting transformative legislation like the CLCPA, the Climate Leadership and Community Protection Act in New York, and those are super important tools, and I think those are increasingly going to be the focus of political climate and state level climate action because those laws are going to be really important, and we're going to see those being done both statutorily by legislators and I think also through

ballot initiatives that we've seen in places like Washington State and elsewhere to bring real legal protections at the state level into play.

And I do agree that with a highly deregulatory and skeptical of agencies Supreme Court, that kind of litigation is is going to be harder, and that we're going to have to be more thoughtful and cautious in the cases that we bring and more aggressive in our defense of regulations that around the books and statutes that are on

the books. On the other hand, you know, the Climate Justice and environ Mental justice movements are deeply dovetailed with the need for getting systematic change in the way we regulate pollution and climate, and a lot of those cases are very much local, fact intensive and specific cases about specific harms and specific violations of law that are part

and parcel of a movement for broader change. And those kinds of cases brought on behalf of communities where you're going into court saying this isn't about some abstract principle that's way over there in Washington, DC. This is about real people and a pipeline or a mine, or pollution that's affecting real lives, whether it's lead in the water

or a smog in the air. Those cases are going to be really important in the years to come, and those are cases where what matters is the facts you bring, the partners you bring, the the industries that you're you're dealing with. Those I think those cases are very live and I don't see any way in which those cases are going to be, you know, like fundamentally harder, harder

to bring. You know, there's there's things like standing and others that that the that the that the right wing courts are trying to these little doctrines that the Court is trying to chip away in the side, but I fundamentally believe that those cases are going to be both increasingly important and that they're going to be continued to be very viable and very very powerful.