The Roberts Court at 10

Roberts’s Environmental Law Record: It’s Not Good, But Don’t Count Him Out | Chapter 6

Summary

Many of the snapshots in our yearlong “Roberts at 10” project have concluded that Chief Justice John Roberts has consistently voted for conservative outcomes in significant areas of the law. For much of Robert’s first decade as Chief Justice, his record on environmental law—the topic of this snapshot—followed the same pattern: in every major environmental law case that divided the Supreme Court during Roberts’s first eight years as Chief Justice, Roberts voted against environmental protection, including in the most significant case decided in that period—Massachusetts v. EPA. Roberts’s ninth Term was different, however, as he voted for two significant environmental victories in EPA v. EME Homer City Generation and Utility Air Regulatory Group v. EPA (“UARG”), both cases about Environmental Protection Agency (“EPA”) regulation under the Clean Air Act. Against the backdrop of many votes to limit environmental regulation, there’s only so much one can read into Roberts’s votes in those two cases, but at a minimum, they do suggest that no one should count out Roberts’s vote as the Court prepares to hear Michigan v. EPA, another Clean Air Act case that could affect the EPA’s ability to regulate hazardous air pollutants emitted by electric utilities, later this month.

It’s perhaps not surprising that the story of Roberts’s decisionmaking in environmental law cases is at least somewhat complicated. In the lead-up to his confirmation, Roberts came under significant attack from many members of the environmental community, who feared that his views on federal power were likely to pose an obstacle to robust enforcement of the nation’s environmental laws. Roberts aggressively defended his record on this score, repeatedly noting at his confirmation hearing that, as an attorney, he’d argued cases on both sides of the issue and assuring Senators that he could be counted on to give cases presenting environmental issues a “fair hearing.”

This snapshot will focus on two broad categories of environmental law cases: (1) those that affect the ability of individuals and organizations to sue to prevent or redress environmental harm, and (2) those that affect the ability of governments to regulate pollutants and polluters. Unfortunately, Roberts’s votes in the vast majority of environmental cases that have divided the Court during his tenure thus far have called into question the assurances he gave at his confirmation hearing. Moreover, his more general record on standing suggests little room for optimism on that front, as one of our previous snapshots discusses. But Roberts’s most recent decisions on the second front suggest that while Roberts’s environmental law record thus far has been bad, those who favor strong environmental protections still shouldn’t count him out going forward.

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