April 16, 2010

Justice Stevens' environmental law legacy

By Justice Stevens' environmental law legacy

Author: Damien M. Schiff

Grist.com has this fairly well-balanced piece by Doug Kendall lauding retiring Justice John Paul Stevens' judicial decisions dealing with environmental law issues over his three-decade-plus tenure on the Supreme Court.  The article's thesis is that Justice Stevens universally practiced "deference to the plain language of statutes" and demonstrated "concern about judicial restraint."  Not entirely, I'm afraid.

SWANCC v. United States Army Corps of Engineers.  The Supreme Court, interpreting the Clean Water Act (CWA) (a law that purports to regulate "navigable waters"), concluded that a manmade pond miles from any navigable water that was occasionally used by migrating water fowl did not constitute a navigable water.  Justice Stevens dissented.

Rapanos v. United States.  The Supreme Court, again interpreting the CWA, concluded that some cornfields, miles from a navigable-in-fact waterway, were not navigable waters.  Justice Stevens dissented.

National Association of Home Builders v. Defenders of Wildlife.  The Supreme Court, interpreting the CWA and the Endangered Species Act (ESA), concluded that the ESA is not a super-statute that impliedly amends all other federal organic statutes requiring that federal agencies makes species protection their overriding mission.  Justice Stevens dissented.

Massachusetts v. Environmental Protection Agency.  The Court, speaking through Justice Stevens, created an entirely new theory of "standing" allowing the Commonwealth to sue and ultimately overturn EPA's decision not to regulate greenhouse gases under the Clean Air Act.  Whither deference, whither judicial restraint?

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