The Roberts Court and the Environment

49 Pages Posted: 26 Aug 2009 Last revised: 26 Jun 2023

Date Written: August 24, 2009

Abstract

Over the years, academics have criticized the Supreme Court for failing to treat “environmental law” as a unique area of law or for being hostile to environmental law. The October 2008 Term of the Court was particularly harsh on the environment. The Court decided five cases that raised issues of environmental law and the environment was the loser in each case. Although the Roberts Court is only beginning its fifth term in October, some preliminary observations can be made about the Court’s treatment of environmental law. This article examines the environmental jurisprudence of the Roberts Court over its first four terms and briefly explores whether the ascendancy of Justice Sonia Sotomayor to replace Justice David Souter may influence the Court’s decision-making in environmental cases.

Despite the rulings of the past term, the Roberts Court, over four terms, has not been overtly hostile to the environment, although the Justices seem to be increasingly polarized in environmental cases, and the Courts’ decisions, on the whole, are generally more harmful to the environment than beneficial. For the most part, though, the Court continues to treat environmental cases as administrative, statutory or constitutional law cases that merely arise in the context of environmental disputes.

While it may be difficult to characterize the environmental decisions of the Roberts’ Court, as a whole, as “pro-environment” or “anti-environment,” a couple themes consistently appear in the Court’s resolution of those cases. First, in most of the environmental cases that the Court has heard, it has adopted a position advocated or defended by a federal, state or local government when governmental interests are at issue. Second, in all of the environmental cases that implicate federalism concerns, the Court has rendered decisions that are in favor of States rights, regardless of whether the decisions are beneficial to, or harmful to, the environment. Finally, while the Court continues to rely primarily on textualism to interpret statutes, the Court has not relied on textualism to support its decisions in most of the cases that have been harmful to the environment. On the contrary, in many of the Court’s pro-environment decisions, the Court relied on the plain meaning of the environmental laws to resolve the cases.

Suggested Citation

Johnson, Stephen Martin, The Roberts Court and the Environment (August 24, 2009). Available at SSRN: https://ssrn.com/abstract=1460969 or http://dx.doi.org/10.2139/ssrn.1460969

Stephen Martin Johnson (Contact Author)

Mercer University Law School ( email )

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Macon, GA 31207-0001
United States
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(478) 301-2101 (Fax)

HOME PAGE: http://www.envirolawteachers.com

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