21 The most prolific scholar of the Court and environmental law was Professor Richard Lazarus. Hill's story - the full version - is therefore the story of the environment and environmental law in the Court's jurisprudence.
The Fall from Grace
With these characteristics, ESA had little chance of remaining on its pedestal in court for long. Ruhl, Section 4 of the ESA: The Keystone of Species Protection Law, in LAW, Policy, AND PERSPECTIVES, supra note 1, at 16.
The Cases
- Starting at the Apogee - TVA v. Hill
- Standing (Round I) - Lujan v. Defenders of Wildlife . 499
- Standing (Round II) - Bennett v. Spear
- Substance (Round II) - Home Builders
The Court's ESA cases thus provide five well-spaced points that define the arc of the ESA's history in the Court. Justice Stevens was the only member of the Court to address the merits of the extraterritoriality question. Justice Stevens quotes Hill only once for the statement that “Congress recognized that one of the .
It was nearly two decades after Hill directly addressed the content of the ESA before the Court in Babbitt v. have visited To be sure, this outcome was not as devastating to the ESA as it would have been if Justice Scalia's version of the statute had prevailed. 0 Other members of the court at the time were Chief Justice Rehnquist and Justices Breyer, Ginsburg, Kennedy, O'Connor, Souter, Stevens and Thomas.
Justice Stevens disagreed with the majority's characterization of the CWA delegation action as nondiscretionary, see id.
The Justices
The Court and Environmental Values
One of these is that the Court simply does not think much about the environment when selecting and deciding cases. In this view, it is other factors, such as the integrity of administrative law or the appropriate techniques of interpretation of laws, rather than the protection of species, that have determined ESA decisions. In other words, the Court is apathetic about the environment and it is purely coincidental that in every case the environment is taken into account as a context for more.
On this view, the Court may have an environmental purpose when it selects and decides cases involving the environment—perhaps even a charitable one—but is misled by its environmental ignorance about how best to fulfill those purposes. Legal scholars have posited all three of these "not much" explanations for what the Court means by environmentalism, and the ESA's history in the Court lends support to all three interpretations.
The Apathy Thesis
Another meaning could be that the Court, although it thought purposefully about the environment, did not form an accurate view of it. By and large, however, one has to look hard and stretch a bit to find these and the few other isolated examples of any Justice inserting the environment directly into ESA jurisprudence. Even the dissenting opinions in Lujan and Home Builders fail to harness any sense that the environment is at stake in the case.
The Lujan opponents are remarkably sterile in this sense, not mentioning Hill or anything about the setting. Similarly, while Justice Stevens invokes Hill in his Homebuilders dissent, he does not go beyond complaining about the majority's statutory interpretation and unfaithfulness to Hill until the end of his opinion, asserting without the slightest elaboration that the majority's approach "places a large number of endangered species at risk."14 In short, the Court's ESA cases and the Justices' opinions have much to say about the ESA, but not much to say about the importance of species conservation.
The Ignorance Thesis
34;breeding, feeding, and sheltering is what animals do,” so if a land use interferes with any of these essential behaviors, it may be at risk of actually causing death or injury, which is prohibited by section 9.144. Of course, any disconnect between the science of species conservation and the law of species conservation is not the work of the Court – it is the product of an underlying tension in the ESA between science and law. The statute forces a messy amalgam of scientific and legal determinations, such as whether a land use is the proximate cause of harm to a species, which produces a "legal scientific" decision-making process that confuses lawyers and scientists alike.14 9 So the Sweet Home Court was in trouble because if it were a scientific measure of damages, the lawyers would have accused the Court of legal ignorance.
Perhaps, therefore, the ESA cases demonstrate that the court's displayed ignorance of the environment in its ESA cases is not a function of the judges' own lack of care, but of the challenges of environmental law in general.
The Hostility Thesis
The Court and Environmental Law
Although the Court's ESA cases can be drawn to support any of the three theses about the Court's attitude to environmental values, none of the theses seems entirely satisfactory as a medium for understanding and explaining the Court's fall of Hill and ESA. judicial practice. After all, if the majority of the Court really had and still has considerable hostility to the environment, how did Hill happen and why did it take three decades to overturn it. However, the apathy and ignorance theses also offer incomplete explanations, as the trend in the cases has undoubtedly been towards the ESA becoming more withdrawn with each step.
In contrast, while the Court and, shortly thereafter, Congress placed an ESA pause, the FWS and NMFS initiated a breathtakingly comprehensive agenda for administrative reform of the ESA regulatory programs beginning in the 1990s. As this section explains, the transformative effects of agencies' reform efforts are most closely linked to the Court's attitude toward the ESA.
The Environmental Law Skepticism Thesis
Glitzenstein, supra note 46, at Citizen cases have been instrumental in enforcing the ESA and they will continue to play an important role in implementing the Act, regardless of who controls the political branches of government."). ESA clearly does. It does not replicate the formal cooperative federalism structure of the CAA and CWA. In contrast, Sweet Home was the linchpin of the ESA's new mainstream model—the harm definition and the regulatory leverage it provided for the ESA in general and the HCP program. in particular offer.
One study estimates that more than ninety percent of species listed as threatened or endangered under the ESA have some or all of their habitat in non-federal lands. This, if anything, best explains the ESA's descent into the abyss of the Court's skepticism about environmental law.
The Pro-Business and Pro-Government Theses
Environmental Law Design Lessons
The final lesson to draw from the ESA's slow loss in the Court concerns how to avoid similar fates for other environmental laws, particularly in contexts of ecosystem protection and biodiversity conservation, where they may be needed new legislative initiatives to implement effective policies.2 03 Although I am not suggesting that avoiding harsh treatment in the Court should be the driving factor in drafting such statutes, the history of the ESA shows why it is not an insignificant concern. . In this section, therefore, I identify the key structural features that appear to be behind the law's fall from grace at the Court and suggest what lessons this fall offers for the design of environmental law. Whether lawmakers and agencies choose to pursue them — and I'm not arguing one way or the other about that — is another matter, but they should at least be aware of the risks of not doing so.
Avoid direct regulation of private lands and resources, although Bruce Babbitt's administrative reforms gave the ESA prominence.
Avoid Directly Regulating Private Land and Resources
In this regard, the Court takes the ESA for what it is and has not positively assessed the impact of the ESA on private land use. It is clear, therefore, that the scope of scrutiny over the regulation of private lands and resources has captured the Court's attention in evaluating the ESA. The ESA's closest sibling among environmental laws, the Wetlands Protection Program under Section 404 of the CWA, has suffered a similar fate in the Court, largely due to its reach over private lands.
The Court has answered this question in a series of cases that bear an uncanny resemblance to the history of ESA cases. Like the ESA cases, the Court's three Section 404 cases therefore begin with a decisive victory, which can only be followed by environmental interests.
Account for Regulatory Costs
While the private land use component of the ESA has grown over time as a factor in the Court's jurisprudence, from the outset the Court has taken issue with this lack of integrated, robust cost-benefit and cost-effectiveness mechanisms in the ESA's regulatory programs. This was enough of a problem for Justice Scalia that the ESA's regulatory arms could potentially be sown. 34;economic disruption" across the landscape, a trait the ESA shares with many environmental laws, even if properly enforced.224 The deeper sin, however, was that if unchecked by the best available science mandate, the ESA to " needless" economic disruption arbitrarily measured by unintelligent, overzealous agency officials.
While the Court could not subvert a congressional mandate to protect a particular environmental interest "at all costs," the ESA cases suggest that the Court can and will find ways to temper such unrealistically cost-insensitive legislative exuberance through procedural maneuvers and crabbing. bed interpretations of legal provisions. Therefore, especially when environmental legislation significantly affects private lands and resources, incorporating more specific, rigorous attention to costs, such as through practicability standards, than is found in the ESA, may be a prudent strategy to avert this type of sideways movement. legal intervention.
Reduce Skewed Regulatory Burdens
Indeed, concern about the distributive effects of environmental laws extends beyond the ESA and appears to be brewing in the Court with respect to climate change regulation as well. EPA,23 5 the majority of the Court found that the EPA erred in denying a citizen petition to regulate greenhouse gas emissions from vehicles under the CAA. Respected scientists believe that the two trends are related.”23 6 However, just a few years later, the Court ruled that the EPA's nascent enforcement of the CAA to regulate greenhouse gases preempted federal common law claims alleging that the main sources of green-.
It took fifteen years for the trial to begin to backfire on Hill and the ESA, while climate change took only four. One explanation for how quickly the Court has retreated in the context of climate change may be the concern that responsibility for the nuisance would fall arbitrarily on whomever the plaintiffs choose as the culpable sources of greenhouse gas emissions.
