Dear EarthTalk:

What’s on the Supreme Court’s docket in terms of cases with any bearing on nature, wildlife or the environment? Historically has the Court tended to be friend or foe to the environment?

S. Jackson, Miami, FL

There has been little consistency in Supreme Court rulings on environmental protection over the years, mainly because such protections are not directly addressed in the Constitution. That said, all of the Court’s recent decisions have leaned conservative. In June of 2022, the Court ruled 6-3 in West Virginia v. EPA that the U.S. Environmental Protection Agency (EPA) did not have the ability to regulate carbon dioxide (CO2) emissions. This decision gutted many regulations designed to fight climate change. However, Congress’ subsequent passage of the Inflation Reduction Act in November 2022 circumvented the contentious ruling by specifically earmarking funding for domestic energy production and renewable energy. The bill defines CO2 as a pollutant, which puts these emissions back under the EPA’s purview. 

Several cases on the Court’s docket with environmental tie-ins are likely to be decided in 2023. To wit, in Sackett v. EPA, Chantell and Michael Sackett are suing the EPA for ordering them to cease building an unpermitted house on a lot which contains wetlands. The Sacketts argue that this is “overreach” since their proposed home, although next to a tributary of Idaho’s Priest Lake, is intended to be a few hundred feet from the lake itself. The EPA says that the wetlands are under its jurisdiction because of the “significant nexus” test to determine how federal waters would be impacted by development. This test can be hard to define and understand because hydrology varies in different locations. The Court seems likely to try to create a new measurement, which could have consequences far beyond rural Idaho.

Another as yet undecided case is National Pork Producers v. Ross, concerning California’s Animal Farm Confinement Initiative, which prohibits the knowing sale of pork from facilities that confine sows in less than 24 square feet. The initiative is designed to prevent animal cruelty and decrease the risk of zoonotic (animal to human) diseases. The National Pork Producers Council argues that this is, in effect, regulation of pork production outside the state, in violation of the Constitution's “dormant commerce” clause. The 2023 ruling will have ramifications for animal welfare, but it may also open up challenges to states’ environmental regulations depending on the Court’s interpretation.

Several historic cases have had significant impacts on environmental policy. One was 1920’s Missouri v. Holland, in which the Court ruled that an international treaty protecting some migratory birds did not violate the 10th amendment, overruling states’ rights in the process. Another landmark environmental case is 1972’s Sierra Club v. Morton in which the Court rejected a Sierra Club lawsuit to block the development of a ski resort at Mineral King in the Sierra Nevada mountains as the plaintiff did not allege any direct injury. Justice William O. Douglas wrote a famous dissent which still inspires environmental and animal rights advocates to this day arguing that ecological features should be given the protection of legal personhood.

CONTACTS

• Supreme Court curbs EPA’s power to regulate carbon emissions from power plants, www.hsph.harvard.edu/news/features/the-supreme-court-curbed-epas-power-to-regulate-carbon-emissions-from-power-plants-what-comes-next/;
• Supreme Court Poised to Scrap U.S. Waters Test, bnanews.bna.com/environment-and-energy/supreme-court-poised-to-scrap-us-waters-test-attorneys-say;
• Giving Bodies of Water their Day in Court, studentorgs.kentlaw.iit.edu/ckjeel/2021/04/05/legal-personhood-the-growing-movement-to-give-bodies-of-water-their-day-in-court/.