A First Look at Justice Scalia’s Environmental Legacy: Decisions Reviewing Agency Interpretations of Law (Part 1)

A First Look at Justice Scalia’s Environmental Legacy: Decisions Reviewing Agency Interpretations of Law

By Andrew Thornton, Staff Contributor[1]

1        Abstract

In two posts I discuss eleven of the late Justice Scalia’s significant opinions—both his opinions for the Court and dissents—concerning environmental law. The common denominator of these eleven is their posture: in each, the court was called to review an agency’s interpretation of law. The first post contains five opinions from 1984 (while then Judge Scalia sat on the D.C. Circuit) through 2006, and the second post contains six opinions from 2007 through 2015. In my conclusion to the second post I discuss possibilities for future research of his environmental legacy, to wit: fourteen additional significant opinions in domains such as standing and preëmption.

2        Part 1 of 2: Reviewing Agency Interpretations of Law from 1984 through 2006

2.1       Introduction

After having served over thirty years on the federal bench, conservative jurist Antonin Scalia died last February 13th at the age of 79.[2] He was a prolific author, both in the secondary literature—he wrote over fifty law-journal articles[3] and three books[4]—as well as in his judicial opinions. During his three years on the D.C. Circuit and twenty-nine years on the high court he authored roughly three thousand opinions, including concurrences and dissents.[5] The justice left us, in short, a formidable bibliography. It is all the more formidable for those of us interested in his environmental legacy because of environmental law’s interaction with administrative law, which was the justice’s field of study before he took the bench in 1983.

My goal in these two blog posts is to take a first look at Justice Scalia’s environmental legacy by discussing eleven significant opinions he wrote in the domain of environmental law, in particular where the Court was reviewing an agency’s interpretation of law. (My methodology for choosing these cases is described in the notes.)[6] These opinions cover almost three decades: the earliest was decided in 1986 when then Judge Scalia sat on the D.C. Circuit,[7] and the most recent was Justice Scalia’s opinion for the five-justice majority in Michigan v. EPA in 2015.[8]

In these two posts, I will look at eleven decisions in which the court reviewed agency interpretation of law, commonly known as Chevron deference when the agency interprets statutory law.[9] (One of the eleven precedes the Court’s Chevron decision, in fact, when then Judge Scalia was sitting on the D.C. Circuit.)[10] The first post covers roughly the first two decades of his service, from 1984 through 2006,[11] and the second post will cover the last decade, from 2007 through his death this year.[12]

2.2       Center for Auto Safety v. Ruckelshaus (D.C. Cir. 1984) (Scalia, Cir. J., writing for unanimous panel)[13]

In 1984 then Judge Scalia authored the first of eleven major environmental opinions in which he reviewed an agency interpretation of law.[14] Center for Auto Safety concerns EPA’s interpretation of a provision of the Clean Air Act on motor-vehicle emissions.[15] Under section 207(c)(1) of the Clean Air Act, 42 U.S.C. § 7541(c)(1), “[i]f the Administrator determines that a substantial number of any class or category of vehicles or engines . . . do not conform to the [emission standards] prescribed under section 7521 of this title [i.e., CAA section 202], . . . he shall immediately notify the manufacturer thereof of such nonconformity, and he shall require the manufacturer to submit a plan for remedying the nonconformity of the vehicles or engines . . . [which] shall provide that the nonconformity of any such vehicles or engines which are properly used and maintained will be remedied at the expense of the manufacturer. . . .”

At issue in Center for Auto Safety was a family of GM engines that exceeded the prescribed NOX emission standard of 2.0 g/mile. So, in accordance with section 7541(c)(1), EPA gave GM notice in 1980 of the failure and asked for GM to propose a remedy. GM proposed that it not fix the current engines—it could not figure out why the engines were over-emitting—but instead proposed that it engineer the 1982 and 1983 engines to exceed EPA’s NOX standard and therefore offset its current engines’ over-emission. The EPA eventually accepted this proposal and published its decision in the Federal Register.[16]

After the EPA published its decision, the Center for Auto Safety, Public Citizen, and the NRDC filed a petition for review in the D.C. Circuit under 42 U.S.C. § 7607(b)(1). They argued that GM’s offset plan did not “remedy[] the nonconformity” under section 7521(c)(1) because only recall and repair of the engines is permitted under the statute. The EPA and GM, who intervened, argued “remedy” meant something broader: a remedy at common law was any “means by which a right is enforced or the violation of a right is prevented, redressed or compensated.”[17]

Judge Scalia, writing for the unanimous panel, rejected EPA and GM’s argument. He reasoned that adopting the “specialized” meaning they offered would distort Congress’ intent, which was use the common meaning of “remedy,” which in this case “means eliminating the nonconformity of the GM vehicles or engines.” (Interestingly Judge Scalia also relied on the Clean Air Act’s legislative history.)[18]

Lastly Judge Scalia refused to defer to EPA’s interpretation of the statutory language for a few reasons. The court had no trouble contrasting the consequences of recall and repair with GM’s offset proposal; the language in section 7541(c)(1) was not so inherently imprecise to suggest Congress intended to give EPA the deference for which it argued; and EPA’s proposed interpretation of “remedy” was not one it had been using since the Clean Air Act’s enactment. On the contrary, “[f]rom 1970 until this case, the EPA consistently required recall as the remedy for nonconformity under” section 7541(c)(1).[19]

Notably Judge Scalia did not cite Chevron, notwithstanding it was published in June 1984 and Center for Auto Safety was argued in May and published in October 1984. But, because Chevron did not overrule the Supreme Court cases on which Judge Scalia relied—NLRB v. Hearst Publications, Inc. and Consumer Product Safety Commission v. GTE Sylvania, Inc.[20]—this is probably an irrelevant point.

In 1986 Judge Scalia was nominated by President Reagan to fill Justice Rehnquist’s seat upon that justice’s replacing the late chief justice Warren Burger.[21]

2.3       City of Chicago v. Environmental Defense Fund (1994) (Scalia, J., writing for seven-justice majority)[22]

After his appointment to the Supreme Court, City of Chicago v. Environmental Defense Fund, an appeal from the Seventh Circuit, was arguably the first Chevron case for which Justice Scalia wrote a significant opinion.[23] At issue in this case was whether a municipal incinerator owned by Chicago was regulable under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA).[24] Section 3000(i) of that law, 42 U.S.C. § 6921(i), excludes from hazardous waste regulation any “resource recovery facility recovering energy from the mass burning of municipal solid waste” if that facility burns only “household waste . . . and solid waste from commercial or industrial sources that does not contain hazardous waste . . . under this section . . . .”

The Environmental Defense Fund filed suit under the citizen-suit provision of RCRA, 42 U.S.C. § 6972, and argued that Chicago’s incinerator produced hazardous waste—municipal waste combustion ash—that should have been regulated under the hazardous-waste provisions of RCRA, 42 U.S.C. §§ 6921–6934. Chicago responded that because its incinerator was exempted under section 6921(i), whatever its incinerator emitted—the ash—was also exempt.[25]

Justice Scalia held for a seven-justice majority that the “plain meaning” of section 6921(i) “is that so long as a facility recovers energy by incineration of the appropriate wastes,” that is, household waste and nonhazardous commercial and industrial waste, then “it (the facility) is not subject to Subtitle C regulation as a facility that treats, stores, disposes of, or manages hazardous waste.” The Court thus rejected Chicago’s argument that the emission from an exempt facility made was per se also exempt.[26]

Although Chicago cited section 6921(i)’s legislative history, Justice Scalia would have none of it: “it is the statute,” he wrote, “not the Committee Report, which is the authoritative expression of the law, and the statute prominently omits reference to [hazardous-waste] generation.” Lastly he refused to adopt the plea by the Solicitor General, appearing as amicus curiae on behalf of Chicago, that the Court ought to defer to EPA’s interpretation under Chevron, for “whatever ambiguity [section 6921(i)] contains,” Justice Scalia wrote, cannot support the interpretation of Chicago and EPA.[27]

2.4       Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995) (Scalia, J., dissenting)[28]

At issue in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon were two statutory provisions and one implementing regulation.[29] First, section 9(a)(1) of the Endangered Species Act, 16 U.S.C. § 1538(a)(1), forbids anyone to “take” any species that the Secretary of the Interior designates as endangered or threatened. Second, section 3(19) of the Act, 16 U.S.C. § 1532(19), defines “take” to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt” the same. And in its implementing regulations, 50 C.F.R. § 17.3, the Interior Department further defined “harm,—a kind of “take”—as any “act which actually kills or injures wildlife,” including “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.”

The Sweet Home Chapter of Communities for a Great Oregon and other organizations—representing the interests of landowners, loggers, and “families dependent on forest-product industries in the Pacific Northwest and the Southwest”—filed suit in federal district court in Washington, D.C., seeking a declaratory judgment that the Secretary of the Interior exceeded his statutory authority in the regulation defining “harm” beyond direct force against endangered or threatened wildlife, to include habitat modification and degradation.[30]

The six-justice majority (Stevens, J., joined by O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ.) deferred to the Secretary of the Interior’s interpretation of “take” for three reasons: first, the ordinary, dictionary meaning of “harm” is “to cause hurt or damage [or] injure,” without any restriction to injuries directly caused. Second, one of the central purposes of the Endangered Species Act is to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . . .” And third, Congress likely understood the prohibition on takings in section 1538(a)(1) forbade indirect as well as direct harms because Congress subsequently authorized the Secretary of the Interior in section 1539(a)(1)(B) to permit takings otherwise prohibited “if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” Justice Stevens, writing for the majority, reasoned that “[n]o one could seriously request an ‘incidental’ take permit to avert [section 1538] liability for direct, deliberate action against a member of an endangered or threatened species,” which the Sweet Home Chapter’s interpretation would require.[31]

Justice Stevens wrote in conclusion that because the Secretary’s interpretation of “harm” was reasonable and Congress did not unambiguously manifest its intent to restrict “take” to direct harms, injuries, etc., the Court would defer to the Secretary’s interpretation under Chevron.[32]

In a dissent about as long as the majority’s opinion, Justice Scalia opens by focusing on the facts that the Act, by his reading, “unmistakably . . . (1) forbade the hunting and killing of endangered animals, and (2) provided federal lands and federal funds for the acquisition of private lands, to preserve the habitat of endangered animals.” His decision to open his dissent with these “unmistakably clear” facts is unusual and difficult to understand in light of the majority’s emphasis on and the justice’s later discussion of the relation of the challenged regulation to the statutory text. Nevertheless Justice Scalia does go on to perform a straightforward Chevron analysis.[33]

Justice Scalia finds three features of the regulation that “do not comport with the statute.” First, he writes, “it interprets the statute to prohibit habitat modification that is no more than the cause-in-fact of death or injury to wildlife, . . . regardless of whether that result is intended or even foreseeable, and no matter how long the chain of causality between modification and injury.” Second, the regulation permits both acts and omissions to constitute harms, ergo takings. And third, “and most important,” the regulation “encompasses injury inflicted, not only upon individual animals, but upon populations of the protected species.” As an example, he notes that the regulation defines “injury” to include significant impairment of, among other things, breeding. Breeding, Justice Scalia writes, “does not ‘injure’ living creatures; it prevents them propagating, thus ‘injuring’ a population of animals which would otherwise have maintained or increased its numbers.”[34]

He principally objects to these three features of the regulation because they move the meaning of “harm” too far from “take,” the term it defines in the statute. He accuses the majority of indulging in “[t]he tempting fallacy” of assuming that “once defined, ‘take’ loses any significance, and it is only the definition that matters.” And to see how far afield from “take” the regulation’s definition of “harm” has traveled, Justice Scalia attempts to bolster the definition of “take” to show that the regulation expands “harm” too broadly. He cites a range of dictionaries, treaties, nineteenth-century cases, and other sections of the Endangered Species Act, from which he infers that “[i]t is obvious that ‘take’” in the sense used in section 1538(a)(1) is “a term of art deeply embedded in the statutory and common law concerning wildlife [and] describes a class of acts (not omissions) done directly and intentionally (not indirectly and by accident) to particular animals (not populations of animals).”[35]

2.5       Whitman v. American Trucking Associations (2001) (Scalia, J., writing for eight-justice majority)[36]

Section 109(a) of the Clean Air Act, as amended, 42 U.S.C. § 7409(a), requires the EPA Administrator to promulgate national ambient air quality standards (NAAQS, pronounced “nacks”) for each air pollutant for which “air quality criteria” the EPA has issued under another provision of the Clean Air Act, section 108, 42 U.S.C. § 7408. When the Administrator revised NAAQS in 1997 for particulate matter and ozone, 40 C.F.R. §§ 50.7, 50.9, 50.10, the American Trucking Associations, Inc., other private companies, and Michigan, Ohio, and West Virginia filed a petition for review in the D.C. Circuit under 42 U.S.C. § 7607(b)(1).[37]

The organizations made several arguments,[38] among them an argument that the revised NAAQS did not take into account the economic consequences. The EPA countered that the Clean Air Act, 42 U.S.C. § 7409(b)(1), directed its Administrator to set NAAQS, “the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.” In short, Justice Scalia wrote, “[n]owhere are the costs of achieving [NAAQS] made part of” the Administrator’s calculation of the maximum tolerable concentration of an airborne pollutant.[39]

Among their volleys in response to the plain language of section 7409(b)(1), the organizations objected that many factors other than air pollution affect “public health.” Notably, the economic cost of very strict NAAQS could harm the public health, for example, by shuttering factories, laying off workers, and impoverishing their families. Justice Scalia’s response was curt: the economic parade of horribles “is unquestionably true, and Congress was unquestionably aware of it.” The organizations make several more attempts, but to no avail. An overriding concern of the Court was that before it could reach the organizations’ proposal that section 7409(b)(1) permits the Administrator to consider the costs of implementing NAAQS, it would first need to read ambiguity into section 7409(b)(1) that was not there. Assuming Congress did not hide an elephant in a mousehole, the Court found it “implausible that Congress would give to the EPA through these modest words”—“adequate margin of safety” and “requisite for the public health”—“the power to determine whether implementation costs should moderate national air quality standards.”[40]

In looking to section 7409(b)(1)’s plain language, its statutory and historical context, and its importance to the Clean Air Act’s overall goals, the Court found Congress had unambiguously barred the Administration from considering implementation costs when calculating NAAQS. Because there was no ambiguity, there was no reason to consider whether EPA’s interpretation of section 7409(b)(1) was reasonable under Chevron.[41]

The implementation costs question, however, was only the first objection that EPA had exceeded its statutory authority. The second question concerned EPA’s interpretation of subparts 1 and 2. Subpart 1, 42 U.S.C. §§ 7501–7509a, contains nonattainment regulations for every pollutant with NAAQS; subpart 2, 42 U.S.C. §§ 7511–7511f, contains nonattainment regulations for ozone only. EPA argued that only subpart 1 controlled its revision of ozone NAAQS. The question before the Court was whether EPA was right or whether subpart 2 controlled, or whether some combination of subparts 1 and 2 controlled. The Court found it obvious that subpart 2 had some application to the agency’s revision of ozone NAAQS. But, because Congress had left gaps in subpart 2’s regulatory scheme—the precise bases are too technical for my purposes—there existed ambiguity. Nonetheless EPA’s interpretation, Justice Scalia wrote, was “astonishing,” unreasonable, and unlawful in so far as it made subpart 2 “abruptly obsolete.”[42]

 

2.6       Rapanos v. United States (2006) (Scalia, J., writing for four-justice plurality)[43]

Rapanos v. United States is, like Whitman, a complex case. Justice Scalia wrote a plurality opinion joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Kennedy wrote an opinion concurring in the judgment only, and Justices Stevens, Souter, Ginsburg, and Breyer dissented.[44]

The Clean Water Act, 33 U.S.C. §§ 1311(a), 1342(a), requires a permit from the Army Corps of Engineers before discharging “pollutants,” that is, “dredged spoil,[[45]] solid waste, . . . rock, sand, cellar dirt and industrial, municipal, and agricultural waste,” 33 U.S.C. § 1632(6), into “navigable waters,” that is, “the waters of the United States, including the territorial seas,” § 1632(7). At issue in Rapanos was how the Corps further defined “the waters of the United States” in its implementing regulations, 33 C.F.R. § 328.3. The Corps defined it to include traditional interstate navigable waters (those navigable “in fact”), § 328.3(a), all interstate waters, § 328.3(a)(2), and all interstate wetlands, lakes, rivers, streams, sloughs, ponds, etc., whose “use, degradation or destruction . . . could affect interstate or foreign commerce,” § 328.3(a)(3) those waters’ tributaries, § 328.3(a)(5), and their adjacent wetlands, § 328.3(a)(7).[46]

In Rapanos the Court “consider[ed] whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute ‘waters of the United States’ within the meaning of” section 1632(7). The landowners argued that its wetlands could not be “waters of the United States” because they were not “navigable waters” to begin with, and they were not “navigable waters” because they did not satisfy the Court’s nineteenth-century definition requiring that “navigable” waters be “navigable in fact, or susceptible of being rendered so.”[47]

Justice Scalia’s plurality opinion rejected the landowner’s reliance on the traditional definition of navigability. Because Congress had defined “navigable waters” in the Clean Water Act and because other sections of the Act allude to “navigable waters” not traditionally navigable, Congress meant “navigable waters” to cover something more than the traditional definition, viz. “waters of the United States.” Justice Scalia ultimately side-stepped the difficult task of defining the Act’s qualifiers “navigable” and “of the United States,” however, and ruled in the landowners’ favor because the wetlands at issue in Rapanos were not “waters” to begin with.[48]

Justice Scalia has many arrows in his quiver. First, consider that the Act refers to “the” waters of the United States. The use of the definite article, Justice Scalia wrote, “plainly” referred not to water in general but to “water” as defined in Webster’s Dictionary: that water as is “‘found in streams and bodies forming geographical features such as oceans, rivers, and lakes,’ or ‘the flowing or moving masses, as of waves or floods, making up such streams or bodies.’” So described, “the waters of the United States” referred only to, in the justice’s words, “relatively permanent, standing or flowing bodies of water,” such as streams, oceans, rivers, lakes, and so on. Armed with the dictionary definition of “waters,” the justice found extra support for his interpretation in its comporting with the Clean Water Act’s purposes; its coverage of intermittent flows of water under point-source regulations, § 1362(12), (14); as well as the Court’s past interpretations of “waters” in prior Clean Water Act cases. [49]

Finally, Justice Scalia wrote, even assuming that “waters of the United States” were ambiguous, the Corps’ interpretation was impermissible under Chevron. This follows from three propositions: first, land-use regulation “is a quintessential state and local power”; second, the Court typically requires a “clear and manifest” congressional intent to authorize an unprecedented federal intrusion into state jurisdiction; and third, the Corps’ construction of “waters of the United States” would allow the federal government to so intrude; and fourth, “waters of the United States” does not show the requisite “clear and manifest” intent. Therefore, Justice Scalia concluded, the Corps’ interpretation was not plausible. The only plausible interpretation of “the waters of the United States,” he wrote, was “those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes,” not, as the Corps proposes, “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” In sum, the Corps’ interpretation was too expansive and was therefore implausible and an impermissible construction owed no deference under Chevron.[50]

To enforce his conclusion that the Corps’ construction was unlawful, Justice Scalia’s plurality opinion required Justice Kennedy’s fifth vote. Split opinions make strange bedfellows, and in Rapanos, Justices Scalia and Kennedy reach the same judgment by very different routes. Justice Kennedy found Justice Scalia’s interpretation “inconsistent with the Act’s text, structure and purpose,”[51] and Justice Scalia replied that Justice Kennedy was guilty of “ignoring the text of the statute,” among other things.[52]

2.7       Conclusion to Post 1 of 2

In this first post I have looked at five opinions from the first two decades of Justice Scalia’s judicial career: in Center for Auto Safety v. Ruckelshaus, then Judge Scalia vacated EPA’s interpretation of the Clean Air Act as applied to motor vehicle emissions, in favor of objecting environmentalists.[53] Eight years after his 1986 appointment to the high court, Justice Scalia wrote the majority opinion in favor of environmentalists in 1994 in City of Chicago v. Environmental Defense Fund, a case brought under the Resource Conservation and Recovery Act of 1976.[54] The justice dissented in favor of landowners, loggers, and others in the 1995 case of Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, a case brought under the Endangered Species Act in which the majority ruled for species conservation and upheld EPA’s broad definition of “harm.”[55] Then, in 2001 the justice wrote for the Court’s majority in Whitman v. American Trucking Associations and ruled both in favor of environmentalists and EPA’s interpretation of the Clean Air Act forbidding the Administrator to consider implementation costs when she drafted national ambient air quality standards, and Justice Scalia also wrote against EPA’s interpretation in another respect.[56] Finally, in 2006, the justice wrote a plurality opinion in favor of landowners in Rapanos v. United States, in which he rejected an Army Corps of Engineers regulation that construed “waters of the United States” in the Clean Water Act to include, among other things, wetlands adjacent to rivers, streams, and other waters.[57]

In the next post I will look at six of Justice Scalia’s opinions from the last decade of his service on the Supreme Court. Those opinions include three dissenting opinions—in Massachusetts v. EPA, Decker v. Northwest Environmental Defense Center, and EPA v. EME Homer City Generation, L.P.—and three majority opinions in Entergy Corp v. Riverkeeper, Inc., Utility Air Regulatory Group v. EPA, and Michigan v. EPA.[58]

 

[1]     JD expected ’16, Georgetown Univ. L. Ctr.; AB ’11, Univ. Chicago.

[2]     Scalia, Antonin, Biographical Directory of Federal Judges, http://www.fjc.gov/servlet/nGetInfo?jid=2108 (last visited May 1, 2016).

[3]     See Scalia, Antonin, HeinOnline, http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Scalia,%20Antonin&base=js (last visited May 1, 2016).

[4]     Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012); Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law: An Essay (Amy Gutmann ed., 1997).

[5]     See WestlawNext, http://next.westlaw.com (last visited May 1, 2016) (search “advanced: WB(scalia) CON(scalia) DIS(scalia)” across jurisdictions “U.S. Supreme Court” and “D.C. Circuit”); see also Scalia, Antonin, Biographical Directory of Federal Judges, supra note 2 (dates of court service).

[6]     After searching for all of Justice Scalia’s opinions in Westlaw, see WestlawNext, supra note 5, I further restricted the search results across Westlaw Key No. 149E (Environmental Law) and topic “Environmental,” which yielded about fifty unique results. I then reviewed the cases individually and included in my final list only cases (i) where the court was reviewing an agency interpretation of law and (ii) to which Justice Scalia’s contribution—whether the opinion for the Court, concurrence, or dissent—was particularly relevant to environmental law. That process yielded the eleven cases discussed in these two blog posts. For fourteen additional opinions not discussed in these two blog posts on questions of standing, preëmption, and others, see Section 3.8, infra, p. 28.

[7]     Ctr. for Auto Safety v. Ruckelshaus, 747 F.2d 1 (D.C. Cir. 1984), discussed in Section 2.2, infra, p. 3.

[8]     Michigan v. EPA, 135 S. Ct. 2699 (2015), discussed in Section 3.7, infra, p. 26.

[9]     See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

[10]    Ctr. for Auto Safety, 747 F.2d 1.

[11]    Id.; City of Chicago v. Envtl. Def. Fund, 511 U.S. 328 (1994); Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 714 (1995) (Scalia, J., dissenting); Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001); Rapanos v. United States, 547 U.S. 517 (2006) (plurality opinion by Scalia, J.).

[12]    Massachusetts v. EPA, 549 U.S. 497, 549 (2007) (Scalia, J., dissenting); Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009); Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1339 (2013) (Scalia, J., dissenting); EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1610 (2014) (Scalia, J., dissenting); Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014); Michigan v. EPA, 135 S. Ct. 2699 (2015).

[13]    Ctr. for Auto Safety, 747 F.2d 1.

[14]    Id.

[15]    Id. at 2.

[16]    Id. at 2–3.

[17]    Id. at 3–4.

[18]    Id. at 4–5.

[19]    Id. at 5–6.

[20]    See id. at 5 (citing NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111, 130–31 (1944); Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 120 (1980)).

[21]    See Scalia, Antonin, Biographical Directory of Federal Judges, supra note 2.

[22]    City of Chicago v. Envtl. Def. Fund, 511 U.S. 328 (1994), aff’g 982 F.2d 303 (7th Cir. 1993); see also Oral Argument, id. (No. 92-1639), 1994 WL 663625, http://oyez.org/cases/1993/92-1639.

[23]    Id.

[24]    Id. at 330.

[25]    Id. at 330–31.

[26]    Id. at 334–35 (emphasis in original).

[27]    Id. at 337, 339 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984); John Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav. Bank, 510 U.S. 86, 109 (1993)).

[28]    Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 714 (1995) (Scalia, J., dissenting), rev’g 17 F.3d 1463 (D.C. Cir. 1994); see also Oral Argument, id. (No. 94-859), 1995 WL 243452, http://oyez.org/cases/1994/94-859.

[29]    515 U.S. at 690–91 (majority op.).

[30]    Id. at 692.

[31]    Id. at 697–701 (quotation marks omitted; ellipsis in original).

[32]    Id. at 703 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)).

[33]    Id. at 714–15 (Scalia, J., dissenting) (emphasis in original) (citing Chevron, 467 U.S. at 843).

[34]    Id. at 715–17 (emphasis in original).

[35]    Id. at 717–18.

[36]    Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001), rev’g in part 175 F.3d 1027 (D.C. Cir. 1999); see also Oral Argument, id. (Nos. 99-1257, 99-1426), http://1.usa.gov/1rqCcYg (transcript for No. 99-1257), http://1.usa.gov/1rqCdeJ (transcript for No. 99-1426), http://oyez.org/cases/2000/99-1257.

[37]    Id. at 462–64.

[38]    I ignore the organizations’ nondelegation argument, which goes beyond my present purposes. See id. at 472–76.

[39]    Id. at 464–65.

[40]    Id. at 464–71.

[41]    Id.

[42]    Id. at 481–86. Fourteen years later, in Michigan v. EPA, which I discuss in the next post, Justice Scalia had become skeptical about the very principle at the core of his decision in Whitman. See Transcript of Oral Argument, Michigan v. EPA, 135 S. Ct. 2699 (2015) (Nos. 14-46 etc.), 2015 WL 2399417, at *14 (Scalia, J.: “I’m not even sure I agree with the premise that when—when Congress says nothing about cost, the agency is entitled to disregard cost. I would think it’s classic arbitrary and capricious agency action for an agency to command something that is outrageously expensive and—and in which the expense vastly exceeds whatever public benefit can be—can be achieved. I would think that’s—that’s a violation of the Administrative Procedure Act.”).

[43]    Rapanos v. United States, 547 U.S. 715 (2006) (plurality op.), vacating Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d 704 (6th Cir. 2004); see also Oral Argument, id. (Nos. 04-1034, 04-1384), http://1.usa.gov/1rqCcr7 (transcript), http://oyez.org/cases/2005/04-1034.

[44]    Rapanos, 547 U.S. at 718.

[45]   Spoil is “[e]arth of refuse material thrown or brought up in excavating, mining, dredging, etc.” Spoil, n. § 10, Oxford English Dictionary Online (last updated Mar. 2016), http://oed.com /view/Entry/187260.

[46]    Rapanos, 547 U.S. at 722–24.

[47]    Id. at 729 (citing The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870) (Field, J.)).

[48]    Id. at 731–32.

[49]    Id. at 732–37 (quoting Webster’s New International Dictionary 2882 (2d ed. 1954)).

[50]    Id. at 737–39 (brackets and ellipsis omitted) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)).

[51]    Id. at 776 (Kennedy, J., concurring).

[52]    Id. at 755 (plurality op.).

[53]    Ctr. for Auto Safety v. Ruckelshaus 747 F.2d 1 (D.C. Cir. 1984).

[54]    City of Chicago v. Envtl. Def. Fund, 511 U.S. 328 (1994).

[55]    Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 714 (1995) (Scalia, J., dissenting).

[56]    Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001).

[57]    Rapanos, 547 U.S. 517 (plurality op.).

[58]    Massachusetts v. EPA, 549 U.S. 497, 549 (2007) (Scalia, J., dissenting); Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009); Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1339 (2013) (Scalia, J., dissenting); EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1610 (2014) (Scalia, J., dissenting); Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014); Michigan v. EPA, 135 S. Ct. 2699 (2015).

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