Standing, Administrative Law Define Scalia's Legacy

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By Rebecca Wilhelm

Feb. 16 — Justice Antonin Scalia, who died unexpectedly Feb. 13 while on vacation at a West Texas resort, authored nearly two dozen majority opinions and a dozen dissents in environmental law cases during his 30 years on the U.S. Supreme Court.

His opinions touched on a number of environmental law issues, ranging from the jurisdictional reach of the Clean Water Act to the Environmental Protection Agency's authority under the Clean Air Act.

But Scalia's most significant impact on environmental law is his contribution to standing and administrative law jurisprudence, legal scholars told Bloomberg BNA.

“He’s had a huge impact, both as a writer for majority opinions on environmental issues and as a vocal and colorful dissenter,” Jonathan Z. Cannon, a professor at the University of Virginia School of Law, told Bloomberg BNA. “So often he was the voice—and a very energetic voice—of caution regarding agency claims of jurisdiction or citizen claims of standing” in environmental law cases.

‘Emblematic of a Deeper Skepticism.'

His opinions are “emblematic of a deeper skepticism he had toward the environmentalist enterprise,” Cannon said.

“He took each case as it came to him, and that’s the mark of a conscientious jurist,” he said. “But I think his whole world view was geared in a way that made him skeptical of the environmental movement in general. He was deeply skeptical of the notion of interconnectedness and the implications that might have for legal doctrines like standing or federalism.”

Scalia appears dismissive of environmentalist concerns in some of his opinions for the court, Jonathan H. Adler, a professor at Case Western Reserve University's School of Law, told Bloomberg BNA. But “his environmental opinions typically give the sense that these are cases about other legal principles, or other legal issues that just happen to arise in the environmental context.”

“The court as a whole has moved in his direction,” Adler said. “This is not a court that tends to be very swayed by broad arguments about the environmental importance of a particular question.”

Richard J. Lazarus, a professor at Harvard Law School, told Bloomberg BNA that Scalia “was probably environmental law’s greatest skeptic,” but not “because he was against environmentalism.”

“There were things about environmental protection laws that systemically rubbed his jurisprudence the wrong way,” Lazarus said.

Scalia generally believed in state authority, but environmental laws placed regulatory control in federal hands. Scalia believed in certainty and clarity in the law, but nature is full of ambiguities. Questions of where water begins and land ends resulted in vague rules that did not sit well with Scalia, Lazarus said.

Scalia had a very clear vision of the way law should work and the proper roles of the executive, legislative and judicial branches, Victor B. Flatt, a professor at the University of North Carolina at Chapel Hill School of Law, told Bloomberg BNA.

“I don’t particularly think of him as someone who is anti-environment,” Flatt said. “His vision of the way the government should work was that the big decisions were to be made by Congress, and monetary and property interests were more important than environmental interests that were harder to measure.”

‘The Most Important Thing He Did.'

Scalia's views on standing in environmental litigation emerged even before his appointment to the Supreme Court in 1986, Cannon said. In a 1983 article published in the Suffolk University Law Review, Scalia argued that “the judiciary's long love affair with environmental litigation” had contributed to its disregard for traditional notions of standing.

Scalia thought that federal courts “were being overly generous in allowing citizens to bring lawsuits,” Cannon said. That world view informed how Scalia approached standing cases as a Supreme Court justice.

In Lujan v. Defenders of Wildlife, the court held that environmental groups lacked standing to challenge regulations issued by the Interior Department and the Commerce Department regarding the geographic scope of the Endangered Species Act (Lujan v. Defs. of Wildlife, 504 U.S. 555, 34 ERC 1785 (1992)).

Scalia's majority opinion in Lujan “is absolutely the most important thing he did in terms of jurisprudence,” Flatt said. “He basically reinvigorated, or you could even say invented, the concept of constitutional standing as opposed to statutory standing.”

‘Resistance to Standing for Citizens.'

In Lujan, Scalia expressed “a particular resistance to standing for citizens in environmental cases,” Cannon said.

Jody Freeman, a professor at Harvard Law School, told Bloomberg BNA that “you could largely predict where Scalia would come out on those cases. He was very consistent that the burden on the larger public to get standing was always going to be greater than for directly regulated entities.”

Scalia wrote in Lujan that “a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.”

That is significant because “environmental interests are the most difficult to quantify in terms of monetary impact,” Flatt said.

‘Just Happens to be an Environmental Case.'

Scalia's environmental law jurisprudence indicates that he was unwilling to treat environmental law cases differently than other cases, Adler said.

His opinions “don't typically engage very much with the environmental aspects of the case,” he said. “So in a case like Lujan, he takes his long-held view of standing and how standing should be applied in any administrative law context—it just happens to be an environmental case.”

“He wanted to focus on the underlying legal issue and the appropriate legal measure for resolving that question,” he said.

Scalia's impact on the court was more transformative than the opinions he wrote, Lazarus said. “He changed the way people argue about the meaning of text and the meaning of what Congress intended, across the board. After he joined the court, everyone started analyzing the meaning of enactments and agency interpretations.”

‘Hostile to Environmental Regulations.'

Environmentalists probably viewed Scalia “as hostile to environmental regulations,” Freeman said. “He was not that receptive to EPA's arguments about how they were regulating and the need for regulation.”

“It’s not that he never wrote opinions favorable to environmental outcomes,” Cannon said.

For example, Scalia authored the court's opinion in Whitman v. American Trucking Ass'ns, which unanimously held that the EPA may not consider implementation costs in setting national ambient air quality standards for specific air pollutants under the Clean Air Act (Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 51 ERC 2089 (2001)).

But “the court has backed away” from American Trucking in “more recent cases about the role of costs in environmental regulations,” Freeman said.

In Michigan v. EPA, the court held that the agency failed to properly account for compliance costs when determining whether it was “appropriate and necessary” to regulate toxic pollutants from power plants under the Clean Air Act (Michigan v. EPA, 135 S. Ct. 2699, 80 ERC 1577, 2015 BL 207163 (2015)).

Chevron allows agencies to choose among competing reasonable interpretations of a statute; it does not license interpretive gerrymanders under which an agency keeps parts of statutory context it likes while throwing away parts it does not,” Scalia wrote for the 5-4 majority in Michigan v. EPA (Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 21 ERC 1049 (1984)).

‘Consistently a Challenge for the Government.'

Michigan v. EPA is distinguishable from American Trucking because it involves different sections of the Clean Air Act, Flatt said. However, Michigan v. EPA is evidence of Scalia's evolving views on agency deference.

Initially, “he tried to push courts to defer to federal agencies and told Congress, if you don’t like it, you need to get in and make the law rather than leaving it vague,” Flatt said. “In a very grand sort of way he might have thought he could transform a way of government.”

It's only in the last few years that Scalia became more suspicious of agency power, which he demonstrated in his Michigan v. EPA opinion, Flatt said. Part of the problem is that Congress hasn't passed a major environmental law since it amended the Clean Air Act in 1990. “No one ever envisioned Congress would go so long without addressing things like climate change.”

“It's fair to say Scalia was consistently a challenge for the government and environmental plaintiffs,” Freeman said. They knew he would be “almost impossible to get.” His “refusal to grant deference” to the EPA and other administrative agencies had “a powerful impact on environmental law.”

‘Voiced Fairly Open Hostility.'

In Rapanos v. United States, a fractured court ruled that the federal government had exceeded its jurisdictional authority under the Clean Water Act. Five justices found that the U.S. Army Corps of Engineers' jurisdictional determination should be vacated, but they could not agree on a standard (Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (2006)).

Writing for a plurality of the court, Scalia determined that the reach of the Clean Water Act is restricted to wetlands that have a “continuous surface connection” to relatively permanent water bodies.

“Justice Scalia voiced fairly open hostility to the Corps' expansion of jurisdiction—referring to the Corps as an ‘enlightened despot' with additional references to the ‘burden of federal regulation' of wetlands,” Steven Miano, an attorney with Hangley, Aronchick, Segal, Pudlin & Schiller, told Bloomberg BNA in an e-mail.

“While his opinions did not carry the day in Rapanos, there seems to be more of a majority questioning whether to afford deference to administrative agencies,” Miano said. “This erosion of the deference doctrine may well have strengthened under the court with Scalia.”

Justin Pidot, a law professor at the University of Denver's Sturm College of Law, told Bloomberg BNA in an e-mail that “Justice Scalia viewed environmental laws as relatively narrow in scope because he believed that the federal government's authority should also be relatively narrow, leaving most issues for the states.”

“His Rapanos decision is a good example,” Pidot said. “He articulates a rule that would likely leave most wetlands beyond federal jurisdiction. He also believed in a legal system where those burdened by regulation had a relatively easy time getting into court, but where those that benefit from regulation must generally use the political process, rather than the legal system, to get what they want.”

To contact the reporter on this story: Rebecca Wilhelm in Washington at

To contact the editor responsible for this story: Larry Pearl at

For More Information

Scalia's article on standing in the Suffolk University Law Review is available at