Justice Stephen Breyer will be remembered for his pragmatic approach, which often led him to support environmentalists in court when he left the nation’s highest bench.
However, observers point out that Breyer has handed down some rulings during his nearly 28-year tenure on the Supreme Court that have reprimanded green groups in legal disputes.
He was not a liberal. Pat Parenteau, professor at Vermont Law School said that he was a moderate. His environmental record is generally good but not as strong, as Pat Parenteau, Vermont Law School professor. [former Supreme Court Justice John Paul]Stevens is an example. It was evident that he was an administrator law professor. He was very particular about the record.
Breyer has indicated that his retirement from the court will be in July (Greenwire, Jan. 26).
Breyer, at 83, is the court’s oldest member. He is known for his ability to launch thought-provoking hypotheticals during oral argument and to build bipartisan consensus when it comes down time to writing opinions.
These skills were demonstrated in the 2020 Clean Water Act case Maui County v. Hawaii Wildlife FundBreyer brought two of his conservative friends on board for his majority opinion which said that federal permits are sometimes required for groundwater pollution. (Greenwire 23 April 2020).
Parenteau stated that this closed a huge loophole in Clean Water Act.
Breyers decision centered on a new functional equivalent standard to determine when federal permits are required. This test was one he had invented months earlier during oral arguments.
Robert Percival, director of University of Maryland’s Environmental Law Program, said that it was a classic Breyer quote. Some describe him as a problem-solver. He was the quintessential law professor, trying out hypotheticals with his students. But in this case, he was trying them all out on Supreme Court advocates.
While the Maui Percival stated that Breyer’s vote was not an automatic one for environmentalists and avoided a major loss.
1998 case Ohio Forestry Association Inc. v. Sierra ClubBreyer, for instance, wrote the unanimous opinion stating that the Forest Service resource management plan was not suitable for judicial review. This was a major blow to the environmental challengers.
Parenteau, Vermont Law School, stated that this has been a problem for environmental litigants since then.
Breyer was a strong supporter of environmentalists standing in other cases such as his 2009 dissent at the 5-4 case Summers v. Earth Island InstituteThis was a response to a challenge from green groups to Forest Service regulations.
Former Justice Antonin Scalia led the majority opinion rejecting environmentalists’ claims that the rules affected their recreational interests in Californias Sequoia National Forest.
Scalia, a member of the conservative court wing, stated that the regulations in question here do not require or forbid any action by respondents.
Breyer, in his disapproval, argued against the majority’s view of a challenger having to face a real threat.
It is impossible to predict with any certainty whether snow will fall in New England during winter. He did not mention the names of each town where it would arrive.
He continued that the law on standing does not require such specificity. How could it?
‘Hazardous to our health?’
Former President Clinton chose Breyer to be promoted from the 1st U.S. Legal observers questioned whether he would sympathize with environmentalists’ claims, especially when it comes to federal regulations.
Thomas McGarity, University of Texas Law Professor, wrote an essay during the confirmation proceedings. ArticleThe article is titled “Could Justice Breyer be dangerous to our health?” A piece that raised concerns about Breyers writings regarding minimizing the risk of contamination and favoring deregulation of the gas industry in the 1970s during the energy crisis.
The critical question, on which Judge Breyer’s existing judicial opinions shed very little light, is whether Justice McGarity said that Breyer will keep this sympathetic posture even if the agency’s actions are contrary to his strongly held preference in free markets.
Breyer, however, was a Supreme Court justice who favored federal regulation of issues such as climate change.
Justice Breyer was a consistent vote in support of EPA and other federal actions to protect the environment. This was according to Peter Hsiao (a partner at King & Spalding).
Breyer is the last member of the five-justice majority for 2007 in the seminal case on climate Massachusetts v. EPAAccording to the Clean Air Act, the federal government has the authority to regulate greenhouse gas emissions and air pollutants.
He also advocated for judges to incorporate science in their decisionmaking (Climatewire Jan. 26).
Breyers’ departure follows calls from progressive groups for the justice of the court to step down while a Democrat is in office.
Justice Ruth Bader Ginsburg faced similar challenges during the Obama administration but she remained on the court. She died in the final months of Trump’s administration. This allowed Amy Coney Barrett, the former president, to replace her. This established a 6-3 conservative majority at the court, which will continue for decades.
Karen Sokol, Loyola University’s law professor, said that Breyer will be remembered for his timing of retirement.
She said that this helps to preserve his legacy and his reputation over the years. It could have ended badly if he stayed on until he had time to go.
While Breyers’ departure won’t allow President Biden to make any concessions to the court conservative majority, it will give him the opportunity to strengthen the liberal minority.
Biden has committed to nominate Black women if he has the chance of choosing a Supreme Court justice.Check out this related story).
According to Hsiao from King & Spalding it is possible that the Biden administration will nominate a candidate with similar views or even more on environmental safeguards.
Yesterday, green groups stated that Biden must tap a justice with strong environmental records as the Supreme Court prepares for high-stakes water and climate cases.
The climate case West Virginia v. EPAThis will be one of the last cases Breyer decides before his retirement this summer. The dispute is scheduled to be argued Feb. 28. It concerns EPA’s Clean Air Act authority to regulate power plants emissions (E&E News PM, Oct. 29, 2021).
This week, the justices agreed to hear another important environmental case. Sackett v. EPAThis could allow the court to reverse the long-standing Clean Water Act precedent.
SackettAfter Breyer’s departure, the court will likely hear and decide this matter next term (Greenwire Jan. 24).
Two cases are before the Court to weaken decades worth of clean air and water quality protections, and to limit the tools that we need to face the climate crisis, stated Mitch Bernard, chief counsel for the Natural Resources Defense Council in a statement.
He said: These cases highlight the importance of making sure his successor interprets our laws in accordance with Congress’ purpose in enacting them. He also acknowledged the importance access to the courts and the government’s responsibility to protect the environment and public health.