Conservative Supreme Court Justice Samuel Alito is poised to play a major roll in reshaping the law on environmental issues. He was criticized this week for his draft opinion that overturned abortion rights.
Since his confirmation as an associate justice in 2006 at age 72, George W. Bush’s appointee has been known for being a reliable critic and critic of federal environmental regulations. Some of his views regarding the environment have been moved to minority dissents.
Alito could have a chance to be more powerful than ever with the court’s newly empowered conservative majority.
The relatively low weight that Alito puts on precedent and his disdain for those who disagree with his view suggest that he’s going to be more aggressive than he has been in the past, said Dan Farber, a law professor at the University of California, Berkeley.
Alitos influence can be used to persuade his colleagues behind closed doors and write decisions that will guide lower courts throughout the country. They include environmental regulations and the state’s ability to sue for damages due to climate change.
His new influence on the high Court was evident this week when his draft of an opinion that would overturn the decision was revealed. Roe v. WadeWas POLITICO leakedThis caused a political storm. One of the biggest takeaways for legal experts is that Alito seems to have gathered the support from the courts conservative wing on one the most prominent issues before the court. There could be more where that came.
POLITICO reported that Justices Clarence Thomas and Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, all Republican appointees, voted with Alito during conference on the abortion right decision. The report cited a person familiar in the courts’ deliberations. The three Democratic appointees were expected to dissent, while Chief Justice John Roberts position is unknown.
Roberts yesterday confirmed that the draft leaked was authentic, but stressed that Alitos draft opinion was inadmissible. Dobbs v. Jackson Womens Health Organization It was not final.
Legal observers still believe the five-justice majority will prove difficult to break once the public is aware of how they voted in this case. If the final ruling of the court is similar to the leaked draft, it could pose problems for broad interpretations and modifications of other transformational laws such as the Clean Air Act, according to Karen Sokol, Loyola University New Orleans’ law professor.
She said that she doesn’t know if old ideas about the justices’ workings still apply. Roberts doesn’t matter because this is a different majority.
Statistics compiled by SCOTUSblog show that Alito is still in opposition to more Republican-appointed colleagues than Thomas.
Jonathan Adler, a professor from Case Western Reserve University School of Law, said that Alito may emerge as a stronger voice in the conservative wings, which could be bad news for environmentalists.
Adler said that his conservatism is consistent with the rest of the justices.
Roberts was the Trump administration’s key swing voter. He often sided with the four-member liberal wings in cases involving regulatory procedure and environmental protections. The courts 2020 balance shift to a 3-3 majority, which weakened Roberts’ vote.
According to Pat Parenteau, a professor from Vermont Law School, the leaked draft opinion on abortion rights seems confirm that Roberts is not in control of the court and that Alito could become the new leader for the hard-right wing.
Carbon dioxide isn’t a pollutant
Alito could play a key role in reforming federal climate policy laws.
The landmark 2007 climate change ruling Massachusetts v. EPAAlito was among the four dissenting justices along with Roberts Thomas, Thomas, and then-Justice Antonin Scalia.
The majority sided with the states who argued that EPA had the authority under the Clean Air Act to regulate greenhouse gasses. Roberts dissent joined Alito in arguing that states don’t have standing against EPA. Alito also signed Scalias dissent concluding the court erred in affirming EPAs authority over greenhouse gases.
Alito said that carbon dioxide was not a pollutant a decade later in 2017. Keynote speechClaremont Institute. When Congress authorized regulation of pollutants, it was thinking about substances like sulfur dioxide. Congress was not considering carbon dioxide and other greenhouse gases.
Parenteau said Alitos track records show that he is a strict constructionist and believes that agencies like EPA have too many powers and that Congress is delegating authority without adequate safeguards.
2011 case American Electric Power vs. ConnecticutThe Supreme Court unanimously ruled that the EPA’s authority to regulate greenhouse gasses was incompatible with states’ rights to sue power companies for their emissions.
Thomas and Alito wrote a quick concurrence that addressed the 2007 court ruling.
I agree with the Court’s displacement analysis on the assumption (which I make for the sake of argument because no party contends otherwise) that the interpretation of the Clean Air Act adopted by the majority in Massachusetts v. EPAHe was correct.
The court has again heard the EPA’s climate authority. West Virginia v. EPAThe decision is expected to come down by the middle of summer. Legal observers generally agree that it is unlikely that the justices will use the case against them to overturn. Massachusetts v. EPAThey expect the court will rein in the federal government’s emissions authority.
Adler observed that the draft DobbsThe Supreme Court’s duty to uphold precedent in constitutional cases was dealt with in the ruling. Adler stated that Alito could win a majority support for his view of stare decisis in statutory battles such as those over EPAs Clean Air Act authority. This would be significant for environmental law.
Although I don’t see any evidence that Thomas would be willing or able to go with Alito, we might see it in the future. West Virginia case, Adler said.
He added that it would be a big deal.
Water regulations
Alito could have another chance at changing the judiciary’s approach to environmental protections next term in a case that could reduce federal Clean Water Act safeguards.
The justices’ views on the matter have been well-documented.
In a dissenting view in the 2020 case County of Maui and the Hawaii Wildlife FundAlito criticized six members of the majority who gave EPA too many powers when they backed a new test to determine if groundwater pollution is subject to federal permitting requirements. He stated that states have the authority.
Alito wrote in his dissension that if the Court was going to create its own legal rules instead of interpreting those created by Congress, it might adopt rules that can be used with some consistency. However, the Court has created a rule which provides no clear guidance and allows for arbitrary and inconsistent applications.
Another major case relates to the government’s regulation of wetlands. Rapanos v. United StatesAlito joined Scalias plurality view. The court found that the Army Corps of Engineers had erred in determining which areas are subject to Clean Water Act rules. Scalia also included Thomas and Roberts.
Scalia’s plurality decision in the 2006 case established an extremely narrow test for determining Clean Water Act jurisdiction. Federal courts, however, have generally adopted the broader test laid out by Justice Anthony Kennedys concurring view in Rapanos.
The Supreme Court will speak again on the Kennedy Clean Water Act test and Scalia. Sackett v. EPANext term, the case will be argued. Legal observers suggest that the court may now be able to vote Scalias’ test as the correct approach. Alito could be a key figure in those deliberations.