Justice Kennedy and the Environment

1. Justice Kennedy and the Environment Searching for Nexus? A Contextualist, Not a Categoricalist? A 21st Century Holmesian?

2. The Protagonist (Antagonist?)

3. Prelude to Kennedy’s Greatest Hits (vol. I) • Just 4 9th Cir opinions in 12 years • First 4 years on S.Ct. = no environmental opinions (joined 13 majority opinions; joined one dissent) • Only one written dissent in an environmental case

4. Two preliminary notes • Pa. v. Union Gas (1989) (Congress could and did waive state sovereign immunity in the 1986 CERCLA A’s)—Kennedy joined a 5-4 dissent (maintaining that Congress had neither the intent nor the constitutional authority to waive state sovereign immunity) • Accurate foreshawdowing of Rehnquist Court’s erection of the 11th A as a shield for state liability in federal court • Lucas v. S.Car. Coastal Council (1992) (regulation producing a complete econ. wipeout is a categorical taking) • Early indication that Kennedy would not be a Scalian disciple on property rights and takings

5. I. Standing & Ripeness Cases • Lujan v. Defenders of Wildlife (1992) (environmentalists lacked standing to challenge a DOI exemption of federal agencies acting in foreign countries from ESA consultation) • Kennedy concurred, objecting to Scalia’s rejection of standing for those interested in studying or seeing endangered species • Would entertain theories of “animal or vocational nexus” in a different context • Also unwilling to rule out that Congress lacked authority to identify injuries and chains of causation for standing purposes

6. Standing and Ripeness, cont’d. • Friends of the Earth v. Laidlaw (2000) (envtl’ists have standing to seek civil penalties, since they redress injuries via deterrent effect) • Ginsberg, for 7-2 S.Ct. • Kennedy concurrence: “Difficult and fundamental questions” exist when Congress authorizes “exactions of public fines by private litigants;” may impermissibly delegate Art. II Executive authority

7. Standing and Ripeness, cont’d. • Palazzolo v. Rhode Island (2001) (preexisting wetland restrictions didn’t bar suit; rejection of LO’s applications made it appear that state was unlikely to ever approve) • Kennedy wrote for a 5-member majority • LO had standing; suit not barred by regs pre-dating LO’s acquisition (rejects categorical “notice rule”) • Case ripe; submission of more development proposals would have been “futile,” due to “unequivocal” nature of state regulations

8. Standing and Ripeness cont’d. • Kennedy—not an adherent of the common law model—animal and vocational nexus possible • Congress can define injuries sufficient for standing, but can’t interfere with Executive’s Art II authority • Standing for takings claimants with notice of regs • Repeated denials of development = ripeness • Seems opposed to establishing high barriers for standing and ripeness for LO’s alleging takings • Give LO’s their day in court

9. II. States-Rights Federalism • Gade v. Nat’l Solid Waste Mgmt. Ass’n (1992) (preempting 2 Illinois hazardous waste worker-training statutes because they conflicted with OHSA) • O’Connor for 5-member majority • Kennedy concurred, but disagreed w/ O’Connor’s conflict preemption—Kennedy would have found express preemption in the OSHA statute • No need for actual conflict for preemption • Kennedy apparently viewed avoiding dual regulation as more important than protecting state police powers

10. States-Rights Federalism, cont’d. • U.S. v. Locke (2000) (preempting Washington state statute regulating oil tankers) • Kennedy, for a unanimous S.Ct. • In federal Oil Pollution Act of 1990, Congress created only a limited exception to the broad federal preemption of maritime law enacted in PWSA of 1972 • 1972 law’s objective = to provide uniformity of regulation • Kennedy made no attempt to assess sufficiency of envtl protection; focused on “political responsibility”

11. States-Rights Federalism cont’d. • Carbone v. Town of Clarkstown (1994) (1st envtl. op) (ordinance subsidizing local facility’s collection of recyclable material by establishing a local monopoly violated Commerce Clause) • Kennedy wrote for a 6-3 majority • Burden on interstate commerce justified if = the only method available to advance local interest • But here, there were alternative ways of financing the town’s transfer station

12. States-Rights Federalism cont’d. • Idaho v. Coeur d’Alene Tribe (1997) (2d envtl op.) (state immune from federal suit claiming that, under an 1873 Executive Order, the tribe owned lakebed) • Kennedy wrote for a 5-4 Court • Ex Parte Young exception to 11th A state immunity = a function of case-by-case factual evaluation • Since tribe’s suit was the functional equivalent of a quiet title action, it implicated “special sovereignty interests”–would prevent state from governing lands held in trust for the public • Case revealed a split between Kennedy & O’Connor

13. States-Rights Federalism cont’d. • Amoco Production Co. v. U.S. (1999) (rejecting Southern Ute’s Tribe’s claim to coalbed methane) • Kennedy wrote for an 8-1 Court (Ginsberg, d.) • Interpreted 1909 + ’10 statutes according to “common conception” of meaning of “coal” at the time (methane gas not = resource but a hazard) • Disregarded public land & Indian law canons • Unwilling to defer to gov’t, which conveyed the coal rights (maybe due to K’s sense of retroactive liability)

14. States-Rights Federalism, cont’d • States’ rights = an intense interest of Kennedy’s • Yet he saw the Carbone ordinance as protectionist, while the dissent saw it as mgmt. of a local waste problem—willing to strike down as overregulation • Read state immunity broadly in Coeur d’Alene Tribe • Ignored public land + Indian canons in Amoco • While Kennedy = more devoted to judicial balancing + state sov.than O’Connor (Coeur d’Alene), but more willing to preempt to avoid duplicative regulation (Gade, Locke)

15. III. Takings • Lucas v. S. Car. Coastal Council (1992) (per Scalia, Constitution required LO compensation for regs producing a complete loss in economic value, subject to several exceptions) • Kennedy concurred (in 6-3 result) • Disagreed with Scalia on the scope of exemptions (not limited to regs duplicating CL nuisance) • Too narrow a confine for regs in a “complex and interdependent society;” must account for changed conditions, new ecological understandings, and “fragile land[s]”

16. Takings, cont’d. • Eastern Enterprises v. Apfel (1998) (invalidating, on a 5-4 vote, provisions of Coal Industry Retiree Benefit Act of 1992 that required companies previously employing coal miners to pay some health care retirement costs) • Kennedy concurred with plurality (O’Connor) • But not a taking; injury too “unlike the act of taking specific property” • Retroactive effect of statute violated subtantive due process (forerunner of Lingle)

17. Takings, cont’d. • Monterrey v. Del Monte Dunes, Ltd. (1999) (okay for jury to decide takings issue; Dolan’s “rough proportionality” inapplicable) • Kennedy wrote for 5-member majority (3rd envtl. op.) • Jury not to evaluate reasonableness of regulations but to determine whether their application = taking • Federal 7th A right to jury trials limited to where LO has no adequate remedy in state law

18. Takings, cont’d. • Palazzo v. Rhode Island (2001) (standing for LO who had notice of restrictions + case ripe due to repeated gov’tal denials; but no categorical taking) • Kennedy, for 5-member majority • No economic wipeout, as upland portion of the property retained “substantial” ec value (suitable for construction of a residence) • Endorsed Penn Central balancing, but uneasy about the size of the property (parcel “as a whole” = a difficult, persisting question”)

19. Takings, cont’d. • Lingle v. Chevron (2005) (upholding a Hawaiian statute imposing maximum rent that oil co’s could charge dealer lessees) • O’Connor, for a unanimous S.Ct, reversing 9th Cir. • Lower courts’ application of the “substantially advance” a legitimate state interest = impermissible • Test = actually part of due process, not takings clause • Kennedy concurred, reiterating his Eastern Enterprises conc, suggesting that arbitrary/irrational regs violate due process

20. Takings, cont’d. • Kelo v. New London (2005) (condemnations for economic development = a public use) • Stevens, for a 5-4 S.Ct. • The City’s carefully considered economic development plan warranted judicial deference • The plan ensured no taking of property from one owner to another without public benefit • Kennedy cast deciding vote, concurrence called for a “careful and extensive inquiry” of ec development plans • 7-factor factual inquiry instead of plurality’s deference

21. Takings, cont’d. • Kennedy = a contextualist (concerned about changed ecological understandings and “fragile land[s]” in Lucas conc.) • Juries can decide whether property is taken (Del Monte Dunes)—a question of fact • LO notice of Hobbesian regs not a standing bar; repeated denials sufficient for ripeness (Palazzolo) • Federal courts to scrutinize rationality of local land use regs via substantive due process + 7-factor test for ec development condemnations (Eastern, Lingle, Kelo conc.)

22. IV. Statutory Interpretation • Alaska Dept of Envtl Conservation v. EPA (2004) (upholding EPA authority to overrule the state on the application of BACT under the Clean Air Act)—K’s only written dissent • Ginsberg, for a 5-4 S.Ct. • EPA’s interpretation of the statute = reasonable (record showed state’s BACT much more polluting) • Kennedy wrote for a 4-member dissent • Majority gave improper deference to EPA • Cooperative federalism scheme can’t “consign states to ministerial tasks,” while reserving final authority to EPA

23. Statutory Interpretation, cont’d. • Rapanos v. U.S. (striking down Corps of Engineer regs asserting federal jurisdiction over wetlands lying near ditches/drains emptying into navigable waters) • S.Ct. split 4-1-4 • Plurality (per Scalia, using a 1954 dictionary)—need “permanent, standing, or continuously flowing” waterbodies • Kennedy’s conc.—federal jurisdiction where there is a “significant nexus” to navigable waters

24. Statutory Interpretation, cont’d. • States-rights federalism more telling to Kennedy than administrative deference or environmental protection (Alaska DEC) • Clean Water Act jurisdiction extends to waterbodies affecting other jurisdictional waters (nexus test)—need judicial factual inquiry

25. V. Conclusion • Kennedy has great faith in judicial ability to undertake factual inquiries—context, not categorization dominates • Believes takings claimants ought to have their day in court—supports liberalized standing and ripeness rules • Skeptical of broad doctrinal changes (anti-Scalian)– a doctrinal minimalist • Skeptical of governmental regulation--“Hobbesian” • Advocate of states’ rights but quick to preempt state reg • Anti-regulatory sentiment stronger than states’ rights sentiment • A professed property rights defender who nonetheless opposes increased categorical takings

26. Conclusion—A 21st Century Holmesian? • A devotee of case-by-case balancing • A regulatory skeptic • Relatively non-ideological • “the life of the law is not logic, but experience” • A states-rights Holmesian?