Perspectives: Supreme Court casts ‘shadow’ over Earth Day

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“The planet is fine. Compared to the people, the planet is doing great.” 

Comedian George Carlin, “Saving the Planet,” Monologue (Oct. 21, 2007)

With impeccable timing, the U.S. Supreme Court has cast a shadow over environmental concerns throughout the country and here in Minnesota as well.

As the 53rd annual Earth Day looms Friday, April 22, commemorating efforts to safeguard natural resources, the high court a couple of weeks ago dealt a stunning blow to environmentalists in reinstating a Trump-era federal regulatory measure restricting the authority of states in enforcing the Federal Clean Water Act, 33 U. S. C. 1152, et. seq. To the consternation of many environmentalists and judicial watchers, it did so on April 6 in such a stealth maneuver that it prompted Chief Justice John Roberts to join the tribunals trio of liberals in bemoaning the opacity of the process in Louisiana v. American Rivers, 142 S.Ct. 1347 (2022)(per curiam).

The ruling and another expected soon could significantly hobble environmental protection efforts in Minnesota and elsewhere. It also highlights the growing controversy about the high court’s shortcuts its decision-making process that has some parallels to past Minnesota juridical practices that warrant review as the state and country mark Earth Day 2022.

Revised and reinstated 

The act, which allows states to issue permits for industrial discharges into the nation’s lakes, streams, and other waterways, was constricted with a new regulation in 2020 that narrowed the standards for state certifications, tightened deadlines, and rolled back other limitations that industry groups found unfavorable.

Twenty states and the District of Columbia joined environmental groups in suing to overturn the Trump administration’s action, which yielded a series of triumphant court rulings, including one by the 9th Circuit Court of Appeals. The former president’s appellate bête-noire went so far as to vacate the Trump regulatory retrenchment in its entirety, even though the Biden administration’s Environmental Protection Agency asked only to be given an opportunity to revise the regulation, not kill it altogether.

That dichotomy underlay the high court’s ruling earlier this month, by a 5-4 vote, to reverse the appellate court decision and reinstate the Trump cutback. It did it in an unsigned per curiam order as an emergency edict off of the court’s so-called “shadow docket” without any formal briefing or argumentation and devoid of any explanatory reasoning. While disappointed with that reinstatement on the merits, it was the process by which the conservative majority acted that most disturbed the four dissenters, led by Justice Elena Kagan’s lamentation, joined by her two liberal colleagues and the usually conservative chief justice.

Her dissent lambasted the conservative quintet for having gone “astray” by expediting a decision “without full briefing and argument,” a shadowy procedure used in other high-profile cases this term, including refusing to stay the Texas six-week abortion “vigilante” case last September in Whole Woman’s Health v. Jackson, 142 S.Ct. (2021) and, more recently, in reviving a gerrymandered redistricting plan in Alabama that a lower court, including a Trump judicial appointee, had invalidated in Merrill v. Milligan, 142 S.Ct. 879 (2022). See “Roberts regrets restrictive redistricting ruling” in the March 8, 2022, edition of Minnesota Lawyer.

That syndrome has drawn the wrath of many court groupies. Coined in 2015 by University of Chicago law school Professor Will Baude, the term “shadow docket” has taken on a life of its own, and one that many academicians, lawyers, and litigants would like to exterminate. But it appears to have staying power and may be used with increasing frequency by the current composition of the court, usually to pre-empt full-scale argumentation, presentation of amici briefing, and the like to implement major rulings by deviating from the ordinary course.

In this case, its utilization may dilute the ability of state environmental agencies like the alphabet duo in Minnesota, the Environmental Quality Board (EQB) and Pollution Control Agency (PCA) from engaging in full-throttle oversight of industrial projects. Its effect elsewhere may be similar or even more anti-environmentally friendly.

PERSPECTIVES POINTERS

 Some Other Notable Nixon Era Achievements

• Manned moon landing (1969).
• 26th Amendment lowering voting age to 18 (1971).
• Diplomatic recognition of China (1972).
• Title IX for equitable funding of girls/women sports (1972).
• End of military draft (1973).

Another action 

But wait, there’s more.

Another environmental setback may be on the way from the justices in the nation’s capital.

They heard an action earlier this winter that could minimize the EPA’s regulatory scrutiny under the Clean Air Act, 42 U. S. C. 7401 et. seq., of greenhouse gas emissions in West Virginia v. EPA, No. 20-1530, a case in which several states and industry groups seek to limit the agency’s regulation of coal-fueled power plants, a matter that one knowledgeable observer, Case Western Reserve Law professor Jonathan Adler, grandiosely calls “the most significant environmental law case of all time.”

Unlike the Clean Water litigation decided earlier this month, this appeal was briefed and heard in full oral argument this winter. Court watchers came away with the distinct impression that a majority of the justices are poised to narrow the EPA’s authority, as they did so abruptly in the American Rivers case.

If so, the dual decisions could leave the agency, which was created 53 years ago as one of the several major domestic accomplishments of President Richard Nixon and his administration — before he engaged in high crimes and misdemeanors — a mere shadow of itself.

State ‘shadow’

The closest, albeit imprecise analogy in this state to the U.S. Supreme Court’s “shadow docket” harkens back to the halcyon days recalled best by old-timers more than four decades ago. Prompted by a rise in litigation and ensuing appeals, the Minnesota Supreme Court issued numerous “affirmed without opinion” rulings, disposing of them without adjudication on the merits or explanatory reasoning. The frustrations of attorneys unable to explain to appellate litigants how and why they lost or won, for that matter, along with the dearth of guiding precedents, were among the factors that led to approval of an amendment to the Minnesota Constitution creating the intermediate Court of Appeals, pledged to provide reasoned written opinions on all cases brought to it, which it has faithfully done since its inception in 1984, first with six jurists and now mushroomed to 19, ranging in output from about 1,500 to 2,000 decisions per year, including some 1,750 last year.

Peeking behind the shadowy curtain that still obscures much judicial appellate practice in this state, the Supreme Court customarily takes about one-eighth (12%) of the petitions for review it receives, a discretionary exercise except for certain mandatory matters such as particular election and statewide ballot contests, workers compensation cases, and first-degree murder appeals. Last year, the justices accepted 72 of the 595 petitions it entertained, about its 12% norm. Although a small figure, it dwarfs the approximate 1% appeal acceptance rate of its federal counterpart, a frequency on par with being struck by lightning while clutching a metal clothes hanger outdoors during a thunderstorm.

Climatic conditions aside, saving the Earth might be a good topic for a comedic riff, mixed with some serious overtones, by a skilled raconteur. But it’s no laughing matter when it comes to environmental laws and how the U.S. Supreme Court adjudicates them.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.