With the recent passing of Justice Antonin Scalia, the current 4-4 ideological split on the U.S. Supreme Court could ultimately help benefit President Obama’s energy and environmental policy agenda. Any decision rendered by the Court with a 4-4 split will revert to the decision of the lower court. Until now, President Obama has had seven years to fill seats on the lower courts (including six with the Senate controlled by Democrats), meaning most decisions coming to the Supreme Court will probably provide the Obama Administration with a built-in advantage. With this in mind, let’s take a quick look at forthcoming litigation affecting energy and environmental policy.
When the justices of the Supreme Court convene again in conference, they will be deciding whether to grant cert to the American Farm Bureau Federation’s (AFBF) challenge to EPA’s efforts to implement the Clean Water Act (CWA) in the Chesapeake Bay region. Many fear that the EPA’s plan could be used as a template for how to best clean (and, in effect, micromanage local land use and development) other water sheds including the Mississippi River. With the loss of Justice Scalia, there is some doubt whether they Court will hear the case, much less rule in favor of AFBF. If the Court were to split 4-4 or decide not to hear the case, the decision would revert back to lower court decision ruling in favor of EPA.
Litigation surrounding the CWA will continue as states and affected groups challenge EPA and the Army Corps of Engineers’ rule redefining “Waters of the United States.” The rule was finalized after the Supreme Court already twice checked the agencies’ overly broad interpretation of the CWA in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) and Rapanos v. United States (2006). The two agencies doubled down on this broad interpretation by finalizing a rule that gives them even greater regulatory authority over smaller waterways and wetlands, perhaps including even drainage ditches, ephemeral streams or backyard ponds. Before the litigation got under way in earnest, the U.S. Court of Appeals for the Sixth Circuit imposed a nationwide stay, preventing the agencies from implementing the rule. The Supreme Court could conceivably hear oral arguments in this case before President Obama’s term is up, meaning the lower court decisions could ultimate stand with a 4-4 split on the Supreme Court provided the Senate does not confirm a successor to Justice Scalia.
In what was undoubtedly one of the most significant blows to EPA in recent memory, the Supreme Court by a 5-4 vote recently ordered a stay on implementation of the agency’s Clean Power Plan. The recently finalized regulation – the centerpiece of President Obama’s climate policy initiative and the U.S.’s commitment to the recent Paris climate agreement – would reduce domestic carbon dioxide emissions by 32 percent from 2005 levels by 2030. While the Supreme Court is not expected to hear oral arguments in until 2017, Justice Scalia would likely have been a key figure in the case. Interestingly, one potential replacement to Justice Scalia that President Obama is rumored to be considering is Sri Srinivasan, currently a judge on the United States Court of Appeals for the DC Circuit and a member of the three-judge panel that will be considering the legality of the Clean Power Plan later this summer.
Robert Jackson is a researcher at the American Legislative Exchange Council.