The supreme court is back in session, and once again corporate interests and Republican attorneys general are taking aim at the Environmental Protection Agency (EPA), this time via an attack on the Clean Water Act. But given the current bench’s proclivity for expanding corporate rights while restricting civil rights, that case – Sackett v EPA – is by no means the only threat to climate policy before the court.
National Pork Producers Council v Ross, for example, is ostensibly about whether California’s law regarding pork sold in the state, requiring the humane treatment of the animals in states it came from, but could also potentially threaten states’ abilities to set renewable energy targets. Two university affirmative action cases (Students for Fair Admissions v University of North Carolina and Students for Fair Admissions v President and Fellows of Harvard College), have implications for the Biden administration’s environmental justice programs. Brackeen v Haaland, challenging the constitutionality of the Indian Child Welfare Act, is a direct threat to tribal sovereignty and a potential boon for fossil fuel companies that would rather not have to deal with Native land and water rights. And of course the two big democracy cases – Moore v Harper, which would give states the ability to run roughshod over federal elections, and Merrill v Milligan, which would deliver yet another nail in the coffin that is the withering Voting Rights Act – would likely be catastrophic for climate policy.
Oral arguments in Sackett were heard the first week of October. Rather than go straight at the Clean Water Act, the case attempts to narrow what the law protects and, particularly, undermine its application to wetlands. “The Sacketts have been serial litigators on this issue, they’re a couple whose claim is based on their desire to get a permit, to do some development and their belief that they shouldn’t even have to get a permit,” Sam Sankar, senior vice-president of programs at EarthJustice, explained. “To be clear, if they had applied, they almost certainly would’ve gotten a permit, but they don’t even feel like they should have to get one.”
The permit in question is to fill in some wetlands on their Idaho property to build a lake house, and the underlying question in the Sackett case is: what does the Clean Water Act protect? Everybody understands that it protects lakes and big rivers and the ocean. “But the fight for some time from the right has been to constrict the applicability of the Clean Water Act to smaller streams and to wetlands,” Sankar said.
Back in 2006, Justice Anthony Kennedy wrote in the opinion on a case called Rapanos v United States that the court should “trust the scientists” when it comes to determining what’s dry land and what’s a wetland. Justice Antonin Scalia wrote the minority opinion in that case, in which he asserted that the court could make that call instead. The current court aligns with Scalia on most views, which means the Sacketts and their virtual army of rightwing and pro-industry groups face a bench that’s far more open to their argument. If the Clean Water Act doesn’t apply to smaller streams and wetlands, though, there’s no way to stop pollution from getting into much larger sources of water downstream.
“There’s a lot of industries that would like to be able to fill in wetlands and, frankly, pollute areas that currently the Clean Water Act protects,” Sankar explained. He said he was somewhat heartened that the conservative justices on Tuesday “recognized that the industry position defies the text and science, and that it’s hard to write simple rules for what wetlands the Clean Water Act protects”, he said. “So it’s possible this decision won’t be a disaster.”
Next up were 11 October oral arguments in National Pork Producers Council v Ross, in which attorney Tim Bishop, an industry favorite in anti-environmental law, asserted that while the state of California may believe that it’s immoral to confine a pig so tightly that it can’t move, Iowa farmers feel morally bound to produce the cheapest possible pork. The case challenges Prop 12, a California law requiring pork sold in the state to have come from animals that are able to stand up and turn around.
It’s an important case on its own merits, with implications for other animal welfare laws, and it had the justices musing about other laws with a moral component – a statewide approach to products that come from companies that employ unauthorized immigrants, forbid labor unions, or refuse to fund certain types of healthcare, for example. That’s a complicated question that swings both ways, affecting not only California’s ability to mandate animal welfare and lower emissions, but also Texas and West Virginia’s ability to refuse to do business with companies like BlackRock that have moved away from investing in fossil fuels. It’s also a case with potentially broad implications for climate policy, particularly when it comes to state renewable portfolio standards (RPS), which are targets several states have set for reaching decarbonized energy goals. State RPS have faced legal challenges in the past that invoke this exact argument, because by changing the mix of energy on one state’s grid you are often changing it for another state or potentially multiple states given the interconnectedness of the grid. A win for pork producers here could give the fossil fuel industry ammunition to go after RPS across the country.
Students for Fair Admissions is a group created by Edward Blum, who is many decades past being a college student himself, with funding from two major rightwing funders: the Bradley Foundation and the Searle Freedom Trust. Blum is best known for firing the first deadly blow at the Voting Rights Act, via the 2013 case Shelby County v Holder, and for arguing against affirmative action in the high-profile Abigail Fisher v University of Texas case. Blum lost the Fisher case, but now has two cases before the court this session, one against the University of North Carolina and the other against Harvard, both arguing that the university’s admissions processes unfairly disadvantage high-achieving Asian American students.
For decades conservatives have argued that the equal protection clause of the 14th amendment demands a “race blind” approach to all forms of governance, and that, as such, any attempt to address decades of racial discrimination violates that clause. If that argument wins on university admissions, it could potentially be applied to environmental justice programs that attempt to address the ways that racial discrimination has placed more people of color than white people in the path of environmental harm.
The “race blind” idea also came up in oral arguments for Merrill v Milligan, a case in which plaintiffs argue that Alabama’s redistricting map violates the Voting Rights Act, with Alabama’s solicitor general arguing that the only way for Alabama not to weaken the voting power of Black residents would be to take a race-biased approach. Justice Ketanji Brown Jackson took a page from the originalists’ book in that case, noting that in fact the framers were quite clear that “race-blindness” was not the intention of the equal protection clause at all. Rather, they were “trying to ensure that people who had been discriminated against … were actually brought equal to everyone else in society”, she explained. “That’s not a race-neutral or race-blind idea.”
It’s an argument that will also come up in Brackeen v Haaland next month. In that case, three white adoptive couples argue that the Indian Child Welfare Act is unconstitutional because it discriminates on the basis of race. The law was passed with unanimous, bipartisan support in 1978 to address the fact that about a third of Native kids were being removed from their families and tribes and being placed with white adoptive couples. That trend was occurring on the heels of about 100 years’ worth of official family separation policy from the US government.
The law requires that when an “Indian child”, defined as a child eligible for enrollment in an Indian tribe, is removed from their home and parental rights are terminated, there are placement preferences for that child that start with extended family, then expand to include the tribe, then to include all tribes, before a non-Native placement is considered. The Department of the Interior, joined by several tribes, argues that this law is not race-based because “Indian” in US law in general is a political not racial designation. Citizens of sovereign Indigenous nations have certain rights granted to them by virtue of their political affiliation with their tribe and their tribe’s treaty relationship with the US government.
Questioning that, could “literally call into question all of federal Indian law”, Chrissi Nimmo, deputy attorney general of the Cherokee Nation, explained. “We’re talking about laws that apply to individual Indians, so, you know, possession of eagle feathers,” she said. “But we’re also talking about much, much broader laws that apply to tribes as governments. So issues like reservation status, land use, water rights, gaming, just any issue that you could ever think about that is a legal issue involving tribes and whether they can or cannot do something based on their legal status, is questionable if a court finds that ICWA is unconstitutional because it’s race-based.”
Given that Indian reservations contain nearly a third of the nation’s coal reserves west of the Mississippi, half of potential uranium reserves, and 20% of known oil and gas reserves, not to mention the $30bn in gaming revenue tribes generate each year on average, there are a whole lot of industries that would be thrilled with such a verdict.
In much the same way that every story is a climate story, these days every supreme court case is potentially a climate case.