The contrasting environmental records of Vice President Gore and Governor George W. Bush will be hotly debated during the presidential campaign, but the potential impact of their appointments to the Supreme Court should be of equal, if not greater, concern. If, as President, Bush were to appoint Justices with views similar to those of Antonin Scalia and Clarence Thomas, the scope and strength of federal environmental law could be gravely weakened.
To date, the Rehnquist Court's environmental record has been mixed. While no darling of the greens, neither has it been consistently "brown." As evidence of the Court's lack of a clear environmental vision, consider two nineties cases brought under the same law--the Endangered Species Act. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995), the Court strengthened the act by broadly interpreting the requirement of "harm" necessary to trigger its protections. Although a lower court had interpreted "harm" to mean actions causing the direct injury or death of an endangered species, the Supreme Court broadened the meaning to include indirect actions that impair its essential behavior patterns. In the Sweet Home case, the Court prohibited logging of old-growth forests not because it killed spotted owls but because it destroyed their habitat, jeopardizing their long-term survival. As a result, the Endangered Species Act's reach was significantly extended to cover not only actions likely to cause the injury of a species but the range of actions that adversely modify its habitat. In Lujan v. Defenders of Wildlife and Lujan v. National Wildlife Federation, however (see below), the same Court erected significant obstacles to citizens' suits that seek to enforce the act.
The lack of a consistent pro- or anti-environment stance for the Court as a whole, however, does not mean that particular Justices' decisions in environmental cases have been random. In a recent analysis of the Supreme Court's environmental decisions over the past three decades, Georgetown law professor Richard Lazarus found two current Justices with consistent anti-environmental voting records: Scalia and Thomas. Their anti-environmental votes and the voting patterns of other current (and future) Justices can best be explained by focusing not on their views toward environmental protection per se but rather toward two distinct political issues--separation of powers and the protection of private property rights. As a general matter, Justices who believe in vigorous checks and balances between the branches of government (such as a strong role for the judiciary in reviewing agency action) and the right of government to restrict uses of private property will be more likely to decide in favor of environmental protections. These two predictors become most evident in reviewing the two major fault lines currently running through the law--citizens' access to courts and the scope of private property rights.
Virtually all of our major environmental laws contain citizen-suit provisions, providing a legion of private attorneys general to supplement the government's role in enforcing environmental laws. For citizen suits to vindicate the protections promised by those laws, however, private parties must be able to get into court in the first place. And to do so they must satisfy the requirements of "standing." They must demonstrate (1) that they have suffered an injury in fact; (2) that the injury is the result of an act forbidden under the law; and (3) that the court can provide redress. Primarily because of its narrow view of what constitutes an injury, the Rehnquist Court has until recently made it increasingly difficult for environmental plaintiffs to meet the requirements of standing.
In two of the Court's most significant decisions of the nineties, the Lujan cases, Justice Scalia wrote that plaintiffs must demonstrate specific links of causation between the challenged act and the claimed harm to the plaintiffs. In the case of actions alleged to threaten endangered species, the Court required plaintiffs to show that they had a particular economic or physical connection to the species, expressly ruling out aesthetic or recreational injuries. The net effect was to restrict citizens' access to the courts. Some lower courts have since denied standing to plaintiffs unable to show particularized harm from a polluter's specific discharge. Proving this is well nigh impossible, because it is unusual that a harm resulting from pollution can be traced back to a single source. Usually, the degradation of air and water quality occurs over a long period of extended pollution from multiple sources.
The underlying logic for closing the doors of courts to many environmental concerns lies in separation of powers. Justice Scalia argues that the executive branch, not the public or the courts, is responsible for seeing that the laws are faithfully executed. If citizens are concerned about agencies' poor compliance with statutory mandates they should go to Congress for a legislative fix or to the executive branch for a political resolution. The problem with this pat answer, of course, is that Congress provided for citizen suits expressly to insure that the executive branch did enforce the laws. Recall how Reagan Administration appointee Anne Gorsuch neutered the Environmental Protection Agency.
Recently the Court reversed its holdings on environmental standing in midstride. In Friends of the Earth v. Laidlaw Environmental Services (2000), the Court breathed life into citizen suits, holding that plaintiffs do not have to show an actual physical injury to the environment. Eliminating the need for precise tracing of cause and physical effect, the Court stated that the plaintiff's reasonable concern about the effects of toxic pollutants released by the Laidlaw company on recreational, aesthetic or economic interests was sufficient for standing. This makes it much easier for a plaintiff to demonstrate injury. Justices Scalia and Thomas, it should be noted, strongly dissented.
The second major fault line--protection of private property rights--runs through what are called "takings" cases. The Fifth Amendment to the Constitution provides that private property cannot be taken for public use without just compensation. Housing construction along the coastline, for example, can adversely affect the environment by increasing beach erosion. Such use of private property may be restricted for the public benefit of coastal conservation. Yet if the government had to compensate every landowner whose property value diminished as a result of such zoning, the cost of enforcing such restrictions would be prohibitive. The problem for the courts lies in determining when restrictions are so complete and unfair that they constitute a "taking" for which the property owner must be compensated.
The Rehnquist Court has applied the takings clause aggressively and shifted the balance toward greater compensation for property owners. In the important decision Lucas v. South Carolina Coastal Council (written by Justice Scalia in 1992), for example, the Court required compensation for regulations that deprive the property owner of all economically valuable use of the land unless the government can prove the restriction is necessary to prevent what has traditionally been recognized as a common law nuisance. This not only switched the burden of proof onto the government but, in another part of the opinion, left the door open for lower courts to require compensation for less than total diminution (and some have done so). The net result has been expanded protections for private property owners and cost constraints on legislatures seeking to protect public resources. The case had a slim majority, so new appointments will surely be important in determining the trajectory of takings jurisprudence.
If Governor Bush appoints Justices who share the views of Scalia and Thomas on rigid separation of powers and strong protection of private property rights, the remarkable gains of environmental law over the past three decades will very likely be slowed or even reversed.