Scalia’s Legacy And Environmental Law

For a wrap-up on the late justice’s impact on environmental law, my UC Berkeley Law colleague Dan Farber has an excellent summary on Legal Planet:

The upshot was to restrict EPA’s authority to interpret environmental statutes, make property rights a stronger bulwark against environmental protection, restrict the ability of environmental groups to go to court, and limit federal authority over rivers and wetlands.

Meanwhile, another colleague at UCLA Law, Ann Carlson, games out the future of the Clean Power Plan with the court vacancy:

With his death, the odds that the CPP are upheld have increased dramatically. I’d rank the change in odds as moving from less than 25 percent to higher than 75 percent, with the caveat that predicting Supreme Court outcomes is a bit like reading tea leaves.

For my part, Scalia’s death is another reminder of why we need to limit the amount of time justices can serve on the Supreme Court.  Having justices serve to the point of death or infirmity is not in the public interest, particularly now that they live longer and get appointed younger.  The Rick Perry proposal (yes, that candidate) to cycle judges out every 18 years would be a great solution, as Harold Pollack flags in Politico.

Finally, while I disagreed strongly with many of Scalia’s decisions, particularly in his later years when his principles gave way to the “motivated reasoning” he was so (rightly) intent on curbing in other judges, he did author one opinion that always astounded me for its prescience.  The case was Morrison v. Olson, which dealt with the legality of the Justice Department’s independent counsel position.  Writing in dissent of the decision to uphold the position in 1988, a full ten years before Ken Starr made the office infamous with his prosecution of the Lewinsky scandal, Scalia accurately predicted the future:

An independent counsel is selected, and the scope of his or her authority prescribed, by a [487 U.S. 654, 730] panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame. The independent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual.

Scalia was right on, and his dissent is worth reading in full. But the political game continues, with big consequences for the environment and planet at large.


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