This week a friend in the media asked me to reflect on Justice Antonin Scalia’s environmental law legacy. The resulting article includes a summary of my comments, and I offer some additional thoughts below.
The late Justice’s philosophy of strict statutory (and Constitutional) interpretation had broad implications for the implementation of a variety of environmental laws. In video interviews that were broadly disseminated after news of his death, Scalia said that he really didn’t view cases before the Supreme Court addressing environmental laws as particularly challenging or complex. He professed not to worry or care about the policy issues in a specific case; rather, he did what he normally did – read the pertinent statute and tried to figure out what Congress meant based on the plain meaning of the words.
In some interviews, Scalia actually apologized to his audience for making what they had hoped would be a more interesting explication of his views on climate change, well, boring. He said that his focus on the text made even these issues “pretty dull stuff.” But with a glint in his eye, he said, “I like it,” and you could tell by his expression and smile that he truly meant that.
The question that persists in my mind is whether Justice Scalia’s extremely consistent (but never really boring) judicial philosophy actually led to fair or reasonable conclusions over challenges to a variety of environmental legal issues. It’s a tough question.
Environmental statutes have grown in their length and complexity over time. NEPA, the grandfather of all environmental laws, comes in at a whopping six pages. Amendments to the Clean Air Act in 1990? Well, let’s say it’s a lot more than six pages.
Divining congressional intent from the more recent catalogue of laws seems to me more of a challenge than an “originalist” interpretation can provide. Most of our modern environmental statutes are messy, reflecting even more than the usual hodge-podge of “intent” sprinkled into law by proponents and opponents of a particular issue. Trying to determine what authority Congress meant to give EPA with respect to, say, cost-benefit analyses of certain air regulations, will necessarily reveal contradictions. That’s to be expected when more than a handful of the members voting on a bill really seem intent on eliminating the EPA!
If, as Justice Scalia suggested, environmental laws are no different than any other category of laws addressing a wide range of complex socio-economic issues, reliance on statutory language presumes a clarity of thought and intent that I fear is most usually missing in laws of any consequence. Sure, NEPA may be a model of legislative restraint, with an elegance and simplicity of a bygone era when the goals like preserving our fragile environmental somehow weren’t so controversial (for those interested in a trip to that bygone era, one of the founders of my firm, Henry Diamond, recently contributed a wonderful article to the Environmental Law Institute Forum on the watershed 1965 White House Conference on Natural Beauty and its role in spawning many of the environmental laws we have today and what lessons we can take from its example). But for every NEPA, there are dozens of other statutes born from a simple legislative goal – ensure clean air and water for future generations – but which cannot be implemented without making countless, difficult administrative policy choices and decisions.
If all we have to judge the propriety of an agency’s actions are the words of these sometimes incoherent and often times contradictory statutes, I fear we have set the bar too high for our current legislative branch.
Justice Scalia should be rightly honored for his integrity, adherence to the rule of law, his passion for a school of thought that has grown as a result of his leadership, and for being a well-loved and decent colleague on the Court for three decades. In the realm of environmental law, whoever takes his place should perhaps recognize that decisions weighing the government’s actions aimed at conserving and enhancing the world around us deserve a more fulsome consideration of the fundamental policy goals underlying the plain words of our statutes.