(Washington, DC): When the U.S. Supreme Court begins its new term Monday morning, it will docket as usual a number of environmental cases—but more than the public generally realizes. That is because the cases that often shape environmental policy are usually not about the environment at all, but rather concern issues of administrative procedure and standing, and often reveal conflicting models of statutory interpretation.
So writes Jonathan Adler, the inaugural Johan Verheij Memorial Professor of Law and director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law, in his essay for the November/December 2020 issue, Which Way for the Roberts Court?
And Professor Adler concludes that the trendline of the Roberts Court is not likely to change with respect to those issues when a new justice is seated to replace Ruth Bader Ginsburg later this fall.
The cover package includes three alternative views by respected legal scholars, slugged Sidebar for the courtroom space where judge and counsel can confer.
Lisa Heinzerling of Georgetown Law Center singles out the Roberts Courts’ climate change cases. She praises the court in the 5-4 decision Massachusetts v. EPA, which mandates that the agency regulate greenhouse gases if it finds they endangered public health or welfare. But subsequent decisions undercut the thrust of Massachusetts, and an additional conservative vote replacing Ginsburg could put that foundational decision at risk, hobbling U.S. efforts to rein in climate change emissions.
Two Sidebars specifically evaluate Ginsburg’s impact on environmental law and the meaning of her passing for efforts to protect public health and the ecosystem.
Robert Percival, head of the environmental law program at University of Maryland Law School, mourns a justice who ensured that injured parties could sue under federal environmental law, writing for the majority in the crucial standing decision Friends of the Earth v. Laidlaw.
And Amanda Leiter, senior associate dean at American University Law School, also notes the impact of FOE v. Laidlaw and, relatedly, praises Ginsburg’s commitment to justice, which she sees as a lodestar for future efforts to protect vulnerable populations.
The article and sidebars are available here.
The Environmental Forum, now in its 37th year of publication, is the policy magazine of the nonpartisan Environmental Law Institute, a Washington, DC-based research and education organization. Contact at forum@eli.org.