San Francisco Chronicle - (Sunday)
How key high court cases aid environment
Hundreds of thousands of young, undocumented immigrants, and millions of gay, lesbian, bisexual and transgender Americans, scored dramatic victories in recent U.S. Supreme Court rulings. There may have been another, lessvisible winner: the environment.
According to several analysts, the court majority’s reasoning on central legal issues in both cases supports the arguments California and other states are making in major environmental cases — in particular, challenges to the Trump administration’s rollbacks of greenhouse gas regulation and of California’s vehicleemissions and fueleconomy standards.
The justices never mentioned environmental issues in either case. But, referring to the June 19 ruling that preserved former President Barack Obama’s Deferred Action for Childhood Arrivals program, William Buzbee, an environmental law professor at Georgetown University, said, “Every challenge to every regulation will be citing this case.”
DACA allows undocumented immigrants, known as “Dreamers,” who entered the United States before age 16 to live and work legally in the U.S. for renewable twoyear periods. In a 54 decision rejecting President Trump’s attempt to rescind the program, Chief Justice John Roberts said the administration had failed to explain its action or consider its impact on immigrants who relied on DACA.
That is the same argument California and other states have made in challenging the Trump administration’s repeal of Obama’s Clean Power Plan, a climatechange control measure that limited carbon emissions from power plants. California has also made similar arguments in attacking Trump’s override of the state’s gasmileage and emissions standards for new motor vehicles, standards followed by a dozen other states.
In both cases, the state says the administration offered little reasoning for its rollback and never mentioned the impact on those who had relied on the former rules, such as utilities that invested huge sums in cleanenergy systems and consumers who bought highgasmileage cars in hopes of paying less at the pump and breathing cleaner air. The DACA ruling appears to require the government to explain why the benefits of its actions outweigh the adverse impacts.
The ruling indicates that “we’re back to traditional law, where agencies have to explain the things they do and changes have to be grounded in evidence,” said Dave Owen, a professor of environmental and administrative law at UC Hastings in San Francisco.
The June 15 ruling on LGBTQ rights was focused on a single issue: whether the 1964 Civil Rights Act, which prohibited employment discrimination based on sex, applies to bias based on an employee’s sexual orientation or gender identity.
In the 63 decision, Justice Neil Gorsuch, a Trump appointee, said those employees could claim discrimination based on their sex because they would have been treated differently if their gender was different. Although authors of the 1964 law may not have intended it to apply that broadly, he said, they used language that, as understood today, clearly extends to sexual minorities.
California and other states are making the same type of textual argument Gorsuch used in their defense of the Clean Power Program in a federal appeals court in Washington, D.C.: that the 1970 Clean Air Act, which required the Environmental Protection Agency to curb “air pollution,” applied to greenhouse gases. The Supreme Court had generally agreed with that position in a 54 ruling in 2007 authorizing the EPA to regulate tailpipe emissions, but the issues in that case were somewhat different and the court’s membership has changed.
“Gorsuch just gave proponents of using the Clean Air Act for expansive regulation of greenhouse gases a potent new precedent,” UCLA law Professor Ann Carlson said in a blog posting after the recent ruling.
A week later, lawyers for 21 young people suing the government for inaction against climate change cited the LGBTQ ruling in asking the Ninth U.S. Circuit Court of Appeals in San Francisco to reinstate their suit.
The court ordered the suit dismissed in a 21 ruling in January, saying that although global warming is potentially catastrophic, judges lack the power to order the government to move toward a carbonfree energy system. In asking the full appeals court for a new hearing, the youths’ lawyers said Gorsuch’s reasoning applies equally to the courts’ duty to enforce the Fifth Amendment’s guarantee that no one may be “deprived of life, liberty or property, without due process of law.”
Predictions of impacts on environmental cases are far from unanimous. Ilya Shapiro, chief of constitutional studies at the libertarian Cato Institute, said he thinks the DACA ruling “is good for one ticket only” and that the court’s new interpretation of sex discrimination did not open the door to redefining legal terms.
“At a certain point, words have to mean something definite and aren’t endlessly expansive,” he said.
Deborah Sivas, a Stanford environmental law professor, said the DACA ruling added “some teeth” to a 1983 Supreme Court decision that required government agencies to justify repealing their previous rules. But she said the pending environmental cases have political implications and that Roberts’ position on the issue “could be more casespecific than permanent.”
On the other hand, said Georgetown’s Buzbee, Roberts made it clear in the DACA ruling — and in last year’s ruling blocking the administration from adding a citizenship question to the 2020 census — that government agencies “need to turn square corners” when they change their rules, explaining both their reasoning and the impact on those who followed the rules.
So far, he said, the Trump administration’s chief explanation for some of its major environmental actions, such as repealing the Clean Power Plan and removing federal clean water protections for many wetlands and small streams, is that the previous rules were not authorized by law — the same argument the court found insufficient in DACA.
“It doesn’t mean that the administration’s hands are forever bound,” said Ted Lamm, a climate policy researcher at UC Berkeley Law School who has filed legal arguments supporting California in the Clean Power Plan case. “But they need to explain why their new decision won’t harm those people ... like the states or electric utilities (that invested in cleanpower systems) or why it’s necessary to accept a certain level of harm to achieve some other goal.”
Under the court’s current standards, Lamm said, “the Trump administration can’t just say those are no longer public policies. It’s got to explain why there are public benefits (from the rollbacks), or economic benefits at the cost of environmental benefits.”
Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@ sfchronicle.com Twitter: @BobEgelko