The Supreme Court often releases one or two big, splashy environmental decisions each term. Last year it was overruling a decades-old legal precedent called the “Chevron deference,” which allowed courts to defer to the expertise of a federal agency when interpreting ambiguous statutes. The year before that, Sackett v. EPA limited the definition of bodies of water that are protected under the federal Clean Water Act.
This year’s term, which began in October and ended last week, was a bit different. The justices issued a number of decisions related to climate and the environment, but none of them was a “blockbuster,” according to University of Vermont Law and Graduate School emeritus professor Pat Parenteau.
Arguably, the decisions that will have the greatest potential consequences for climate and environmental policy came from cases that weren’t explicitly about the planet at all.
Rather, they were decisions that legitimized the executive branch’s actions to fire personnel and block funding already appropriated by Congress. These actions may have far-reaching effects on federal agencies that work on climate and environmental issues, such as the Environmental Protection Agency, the Energy Department, and the Department of Agriculture, which have already been affected by layoffs and funding cuts, as well as early retirement offers intended to get longtime staffers to voluntarily leave their posts.
“What’s being done is irredeemable,” Parenteau added. “The brain drain, the firing of people, the defunding — those are causing really, really long-term damage to the institutional capabilities of the federal government to implement and enforce environmental law.”
Three of the court’s decisions help illustrate what has happened.
Two of them — Trump v. Wilcox and Office of Personnel Management v. American Federation of Government Employees — which came earlier in the session, have made it possible for decisions by President Donald Trump to move forward while they are being litigated in lower courts, reversing orders from federal judges that had temporarily paused them. These decisions have effectively allowed firings without cause at the National Labor Relations Board and the Merit Systems Protection Board, and have stopped six federal agencies from bringing back probationary employees that the Trump administration had fired.
Then last week, on the last day of its term, the Supreme Court issued a sweeping decision in Trump v. CASA that limits the power of the country’s more than 1,000 district court judges to issue nationwide injunctions against presidential orders. Those judges’ injunctions are now supposed to target only the plaintiffs in a given case.
“Trump is the big winner in this decision,” Parenteau said.
One of the the decision’s most immediate consequences is that it will allow Trump’s unconstitutional limits to birthright citizenship to go into effect in July. In theory, it also means that Trump could issue an executive order illegally rolling back some environmental policy, and district courts would have less power to stop it while a legal challenge makes its way through the courts. District court judges can still issue nationwide injunctions against rules from federal agencies, and they can issue nationwide injunctions against executive orders that are challenged by a large number of plaintiffs, as in a class action lawsuit. Circuit court judges’ injunction powers remain unchanged.
Jim West / UCG / Universal Images Group via Getty Images
Ann Carlson, an environmental law professor at UCLA Law, said the court’s decisions affecting funding and personnel have “giant implications.” They raise “huge questions about the balance between the executive branch and Congress, and the executive branch’s ability and authority to simply ignore what Congress has appropriated.”
Kirti Datla, director of strategic legal advocacy for the nonprofit Earthjustice, said this term’s Supreme Court decisions have been “enabling” the Trump administration in its attempts to shrink the size of the government and eliminate institutional expertise. “It’s hard to quantify, but it’s impossible to deny.”
Although the justices didn’t release any landmark environmental decisions this term, the court took up multiple “unusual cases” that showed its continued interest in environmental statutes and administrative actions, according to Datla. For example, in Ohio v. EPA the court decided not to temporarily block an EPA policy requiring power plants to lower their greenhouse gas emissions, and in Diamond Alternative Energy LLC v. EPA it decided to allow oil company plaintiffs to sue the EPA for having allowed California to set its own stricter auto emissions standards than the federal government’s.
The Ohio case was “just a regular decision,” Datla said — ”getting deep into the weeds of the record and ultimately disagreeing with what a lower court had done, which is not usually how the Supreme Court spends its time.” Neither case changed existing law or resulted in a big-picture pronouncement about how to apply or interpret the law. And the Diamond case may become irrelevant anyway, since the Senate recently voted — controversially — to use the Congressional Review Act to revoke California’s auto emissions waiver.
Other notable decisions from the Supreme Court’s term included Seven County Infrastructure Coalition v. Eagle County, which limited the scope of environmental reviews required under the National Environmental Policy Act, or NEPA. The court essentially said that such reviews don’t have to look at upstream consequences of a given project — such as oil drilling and refining, for projects like railroads that are only directly associated with transporting these fuels — and that courts should defer to federal agencies when deciding what to include in environmental impact statements.
City and County of San Francisco v. EPA found that some of the EPA’s pollution permits under the Clean Water Act are unenforceable unless the EPA writes out specific steps that water management agencies should take to comply with them. But Datla said this was a “quite narrow case” whose national implications are unclear.
The justices have not yet added any explicitly climate- and environment-related cases to their docket for its next session. But Parenteau, the emeritus professor at the Vermont Law and Graduate School, said he’s nervous that the court will take up a challenge to Friends of the Earth v. Laidlaw Environmental Services, Inc. That decision from 2000 said residents of South Carolina had legal standing to sue an industrial polluter, even without proving they had been harmed in a particular way. They just had to show that the pollution had impacted the “aesthetic and recreational values” of the river they liked to swim in. Overturning the case could make it more difficult for environmental advocates to file similar lawsuits. “The Laidlaw case has me very worried,” Parenteau said.
For Carlson, the UCLA Law professor, a longer-term worry is that the court’s conservative supermajority will eventually overturn the “endangerment finding,” a precedent set in 2009 saying that carbon dioxide and several other greenhouse gases are pollutants that can be regulated by the EPA. “It’s going to get challenged, and it will get challenged up to the Supreme Court,” Carlson said.
Overall, the outlook isn’t good. The executive branch and the Supreme Court “are exhibiting extraordinary hostility to actions on climate change at a time when the planet is burning,” she said. “It’s a pretty depressing story overall.”
Editor’s note: Earthjustice is an advertiser with Grist. Advertisers have no role in Grist’s editorial decisions.
