Environmental Law After Scalia: Assessing the Environmental Legacies of Potential Nominees Georgetown Environmental Law Review

TitlecardEnvironmental Law After Scalia: Assessing the Environmental Legacies of Potential Nominees

By Tirrill Moore, Online Editor

Justice Scalia’s sudden passing last month shocked the legal community. His death will have a profound impact on the legal field as a whole, but especially on the environmental law community. Justice Scalia played a crucial role in shaping environmental law discourse. His opinion in Lujan v. Defenders of Wildlife and his dissent in Massachusetts v. EPA are often cited by opponents of strict federal environmental standards, and shaped the dialogue around standing for environmental harms.[1] His opinions have also had profound effects on substantive environmental law; his opinion in Rapanos v. United States[2] narrowed the scope of the term “navigable waters” under the Clean Water Act.[3]

It remains to be seen whether President Obama will be able to have another justice confirmed before the end of his term; however, there has already been speculation about likely nominees. Four nominees have been pegged by many as likely candidates[4]: Paul Watford, a judge on the 9th Circuit Court of Appeals, Loretta Lynch, the current Attorney General, Sri Srinivasan, a judge on the District of Columbia Circuit Court of Appeals, and Patricia Millet, also a judge on the D.C. Circuit. Each one has had an extensive and exemplary legal career, but they have all touched the field of environmental law differently.

Paul Watford was confirmed to the 9th Circuit in 2012 by a vote of 61-34.[5] Judge Watford started his legal career by clerking for Judge Kozinski of the 9th Circuit and then for Justice Ginsburg on the Supreme Court. Before taking the bench, Judge Watford spent a decade as a federal prosecutor in Los Angeles.[6] Since taking the bench Judge Watford has authored several opinions on the topic of environmental law. Two notable decisions were Cottonwood Environmental Law Center v. U.S. Forest Service and his dissent in Drakes Bay Oyster Co. v. Jewell.[7] In Cottonwood the Court held that the Forest Service had violated the Endangered Species Act (ESA) by not reinitiating consultation when revising the critical habitat designation for the Canadian lynx.[8] Meanwhile, his dissent in Drakes Bay said that the Secretary of Interior did not have the authority to revoke an oyster farm’s permit to farm on a national shoreline.[9]

Loretta Lynch was confirmed as the United States Attorney General last April by a vote of 56-43 following a hotly contested nomination process.[10] Before becoming the Attorney General Lynch served as the United States Attorney for the Eastern District of New York.[11] During her brief time as the Attorney General, the Justice Department has prosecuted several high profile environmental cases. The Department secured the largest civil penalty in the history of the Clean Air Act in the case against Hyundai and Kia, and helped litigate the Deepwater Horizon oil spill, the largest oil spill in American history.[12]

Sri Srinivasan was confirmed to the D.C. Circuit in 2012 by a vote of 97-0. He began his legal career by clerking for Justice O’Connor before entering private practice with O’Melveny and Meyers.[13] Some environmentalists already fear that Srinivasan would be weak on environmental interests because during his time in private practice he represented ExxonMobil and the mining company Rio Tinto.[14] Since joining the bench Srinivasan has already handled important environmental law cases including Sierra Club v. Jewell and Hermes Consol. v. EPA.[15] The Sierra Club decision took a broad view of Article III standing, stating that the organization suffered concrete and particularized harm from the companies surface mining activities on a historic battlefield.[16] Srinivasan’s opinion in Hermes gave the EPA broad deference under Chevron to define “disproportionate economic hardship” under the Clean Air Act when determining renewable-fuel benchmarks for oil refineries.[17]

Patricia Millet was confirmed to the D.C. Circuit in 2013 by a vote of 56-38. Before joining the court, Millet spent more than a decade in the Solicitor General’s Office of the Department of Justice.[18] Since joining the court, Millet has written several critical decisions in the environmental field. For example, in Sierra Club v. EPA, Millet authored the court’s opinion that found that EPA’s Gasification Exclusion Rule, which exempted certain petroleum refining byproducts from regulation under the Resource Conservation and Recovery Act (RCRA), violated the plain language of the statute.[19]

All four have made significant contributions to the environmental legal community and all four would likely shift the leaning of the court. Both Watford and Srinivasan have taken more moderate positions on environmental issues, which may be beneficial to getting confirmed. Millet, on the other hand, has been supportive of protective environmental policies. All three of the current judges would likely give administrative agencies more deference to design environmental policies than Justice Scalia, and have been generous in recognizing standing for environmental harms. Lynch’s judicial philosophy is the hardest to predict. That being said, if her time as the Attorney General is indicative, she would likely be a staunch defender of strong environmental policies. It is unclear when, or even if, President Obama will be able to nominate and get a justice confirmed; however, any of the four above would be valuable to the environmental community.

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[1] 504 U.S. 555 (1992); 549 U.S. 497 (2007).

[2] 547 U.S. 715 (2006).

[3] 33 U.S.C. §§ 1251, et seq.

[4] See Josh Gernstein, Obama Supreme Court short list, POLITICO (February 14, 2016), http://www.politico.com/story/2016/02/antonin-scalia-replacement-219271; Tom Goldstein, How the politics of the next nomination will play out, SCOTUSblog (February 14, 2016), http://www.scotusblog.com/2016/02/how-the-politics-of-the-next-nomination-will-pay-out/. Note that while these are four likely candidates, there are numerous other qualified candidates that President Obama might select.

[5] Paul Watford, Alliance for Justice, http://www.afj.org/our-work/nominees/paul-watford (last visited March 4, 2016).

[6] Id.

[7] 789 F.3d 1075 (9th Cir. 2015); 747 F.3d 1073 (9th Cir. 2013).

[8] 789 F.3d at 1087-1088.

[9] 747 F.3d at 1093-1100.

[10] Loretta Lynch Biography, Bio.com, http://www.biography.com/people/loretta-lynch (last visited March 4, 2016).

[11] Id.

[12] Loretta Lynch, Attorney General Loretta E. Lynch Delivers Remarks at The Department of Justice’s Environment and Natural Resources Division Awards Cermemony, (September 3, 2015), https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-delivers-remarks-department-justice-s-environment-and.

[13] Sri Srinivasan, District of Columbia Circuit, https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+SS (last visited March 4, 2016)

[14] Elana Schor, Greens wary of Sri Srinivasan’s fossil fuel past, POLITICO (February 17, 2016), http://www.politico.com/story/2016/02/supreme-court-srinivasan-fossil-fuels-scalia-219358.

[15] 764 F.3d 1 (D.C. Cir. 2014); 787 F.3d 568 (D.C. Cir. 2015).

[16] 764 F.3d at 3-9.

[17] 787 F.3d at 571-576.

[18] Patricia Millet, District of Columbia Circuit, https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+PAM (last visited March 4, 2016)

[19] 755 F.3d 968, 977-980 (D.C. Cir. 2014).

2 responses to “Environmental Law After Scalia: Assessing the Environmental Legacies of Potential Nominees Georgetown Environmental Law Review

  1. Pingback: Obama starts vetting Scalia replacements: What you need to know | Grist·

  2. Pingback: Obama starts vetting Scalia replacements: What you need to know – Enjeux énergies et environnement·

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