Conservative Supreme Court Justice Samuel Alito, who made headlines this week for his leaked draft opinion repealing abortion laws, is also poised to play a major role in transforming environmental law.
The 72-year-old George W. Bush commissioner has built a reputation as a staunch critic of federal environmental regulations since he was confirmed as an assistant judge in 2006.
That could change with the court’s resurgent conservative majority, where Alito has the opportunity to become more powerful than ever.
The “relatively little weight Alito places on precedent and his contempt for those who disagree with his view” suggest that “he will be more aggressive than he has been in the past,” said Dan Farber, a law professor at the University of California, Berkeley.
Alito’s influence – whether it’s persuading his peers behind closed doors or writing decisions that will guide lower courts across the country – could extend to a range of other issues, including some on which he has had a minority view in the past . Among them: environmental regulations and the ability for states to sue the government for damage caused by climate change.
His newfound influence on the High Court was on full display this week when his draft Opinion was set to tumble Roe v. calf was leaked to POLITICO and triggered a political firestorm. One of the big takeaways from legal experts: Alito appears to have gotten behind the support of the court’s conservative wing on one of the most high-profile issues before the court, and there could be more where that came from.
Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — all Republican appointments — voted with Alito in a conference on the abortion-rights decision, POLITICO reported, citing a person familiar with the court’s deliberations . The three Democratic appointments on the bench were expected to disagree, and Chief Justice John Roberts’ position remains unknown.
Roberts yesterday confirmed that the leaked draft was authentic but stressed that Alito’s draft opinion is available Dobbs v. Jackson Women’s Health Organization was not final.
Still, legal observers believe the five-judge majority will be hard to break once the public knows how they originally voted on the case. If the court’s final decision resembles the leaked draft, the case’s outcome could pose problems for the broad interpretation of other transition legislation such as the Clean Air Act, said Karen Sokol, a law professor at Loyola University New Orleans.
“I just don’t know if old ideas about how the judges might have worked still apply,” she said. “That’s a different majority, and Roberts doesn’t matter.”
According to SCOTUSblog statistics, Alito is still more dissenting than any of his Republican-appointed peers except Thomas.
But if Alito emerges as a more dominant voice in the conservative wing, it’s likely bad news for environmentalists, said Jonathan Adler, a professor at Case Western Reserve University School of Law.
“His conservatism has a consequence that could be held against some other judges,” Adler said.
During the Trump administration, Roberts emerged as the court’s key alternate voter, often siding with the four-member Liberal wing on cases involving environmental protection and regulatory procedures. But shifting the court’s balance in 2020 to a 6-3 majority diluted the power of Roberts’ vote.
The leaked draft abortion rights statement “seems to confirm concerns that Roberts does not control the court and that Alito could become the new leader of the far right,” said Pat Parenteau, a professor at the Vermont Law School.
“Carbon dioxide is not a pollutant”
Alito could play a major role in revising laws guiding federal climate policy.
In the landmark 2007 climate change judgment Massachusetts v EPAAlito was one of the four dissenting judges, along with Roberts, Thomas and then-Judge Antonin Scalia.
The majority joined the states in arguing that the EPA has the authority to regulate greenhouse gases under the Clean Air Act. But Alito echoed Roberts’ dissent, arguing that states have no right to sue the EPA at all. Alito also agreed with Scalia’s objection, concluding that the court had exceeded its powers in upholding the EPA’s power to regulate greenhouse gases as air pollutants.
“Carbon dioxide is not a pollutant,” Alito said a decade later in a 2017 keynote address at the Claremont Institute. “When Congress approved the regulation of pollutants, they had in mind substances like sulfur dioxide or particulate matter — basically soot or smoke in the air. Congress was not thinking about carbon dioxide or other greenhouse gases.”
Alito’s track record, Parenteau said, shows that he is “a harsh engineer” who believes agencies like the EPA wield too much power and that “Congress is delegating too much authority without proper safeguards.”
In the case of 2011 American Electric Power vs. ConnecticutThe Supreme Court delivered a unanimous ruling noting that the EPA’s power to regulate greenhouse gases has usurped states’ ability to sue energy companies over their emissions.
Alito wrote a buoyant endorsement, which Thomas joined, addressing the 2007 court ruling.
“I agree with the court’s pessimistic analysis in assuming (which I do for the sake of argument, since neither party claims otherwise) that the majority-approved interpretation of the Clean Air Act in Massachusetts v EPA is correct,” he wrote.
The EPA’s climate agency is back in court West Virginia vs. EPA, which is expected to be decided by early summer. While legal observers largely agree that judges are unlikely to use the case to overturn it entirely Massachusetts v EPAexpect the court to rein in the federal government’s Emissions Authority.
Adler noted that the draft Dobbs The ruling dealt with stare decisis – the Supreme Court’s duty to uphold precedent – in constitutional matters. But if Alito can build a majority behind his view of the rigid decision in legal battles — like battles over the authority of the EPA Clean Air Act — it would matter for environmental law, Adler said.
“I don’t see any signs yet that anyone other than Thomas would be willing to go with Alito, but we may see that in the future West Virginia fall,” said Adler.
“That would be a big deal,” he added.
Alito could have another chance to change the judiciary’s approach to environmental protection in a case next term that has the potential to limit the protections of the federal Clean Water Act.
The views of the judiciary on this matter are well documented.
In a dissenting opinion in Fall 2020 County of Maui vs. Hawaii Wildlife Fund, Alito criticized his six colleagues in the majority for giving the EPA too much power when they backed a new test to determine whether pollution moving through groundwater can be subject to federal permitting requirements. He said that authority falls directly to the States.
“If the Court wishes to develop its own rules of law, it could at least adopt rules that can be applied with some degree of consistency, rather than interpreting those enacted by Congress,” Alito wrote in his dissent. “Here, however, the Court establishes a rule that does not provide clear guidance and invites arbitrary and contradictory application.”
In another important case related to government regulation of wetlands Rapanos versus the United States, Alito joined Scalia’s plural opinion. The court found that the Army Corps of Engineers had gone too far in determining which areas were subject to Clean Water Act rules. Roberts and Thomas also agreed with Scalia.
Scalia’s plural opinion in the 2006 case established a narrow test to determine the jurisdiction of the Clean Water Act, but the federal courts have largely adopted a broader test, set forth in Justice Anthony Kennedy’s consensus opinion Rapanos.
The Supreme Court is set to speak again about Scalia and Kennedy’s competing Clean Water Act tests Sackett v EPA, which will be discussed in the next semester. Legal observers say the court may now have enough votes to establish Scalia’s test as the correct approach, and Alito could be at the center of those deliberations.