Rehnquist, Roberts, and the Environment

At the beginning of this month, the U.S. Supreme Court began its first term under the leadership of new Chief Justice John G. Roberts Jr. As this new era begins, I am mulling over the environmental legacy of Roberts’ predecessor, William H. Rehnquist, who died in September.

Because the Supreme Court focuses on interpreting the U.S. Constitution, some of you might be startled at the idea that Rehnquist left an environmental imprint on U.S. jurisprudence. Those at odds with Rehnquist’s conservative politics may shudder at the thought that his views influenced—and likely will continue to affect—laws and regulations protecting the nation’s water, air, lands, and other natural resources. Others may delight that he had such sway.

This past summer, I had the privilege of taking a course in constitutional environmental law at the Vermont Law School. In virtually every topic we explored, my instructor, James R. May, a professor at the Widener University School of Law, pointed out Rehnquist’s influence in environmental rulings. I learned that while Rehnquist was consistent in applying his philosophies, his voting record in environmental cases was more complex than I’d ever realized.

Rehnquist led the Supreme Court to a greater emphasis on federalism—promoting the autonomy of states and trimming back the reach of the federal government. He favored protecting states from lawsuits that alleged they violated federal environmental laws, limiting the extent to which Congress could influence state environmental policies, and narrowing how much policy-making power Congress could leave to the Environmental Protection Agency. In addition, he sought to expand the extent to which some agencies must pay compensation to property owners for environmental regulation.

Many of his key rulings involved interpretation of the Commerce Clause of the Constitution. This provision gives Congress the power “to regulate Commerce … among the several States.” All federal environmental laws are based on Congress’ authority to regulate interstate commerce.

Arguably, the most influential Rehnquist-written opinions involving the Commerce Clause were in two cases that didn’t involve ecological matters but nonetheless affect environmental laws. In one, U.S. v. Lopez, the high court in 1995 struck down federal laws creating school zones free of handguns—and set limits on Congress’ ability to regulate interstate commerce.

The Supreme Court in the second case, U.S. v. Morrison, nullified part of the Violence Against Women Act and more narrowly defined the regulation of interstate commerce. One condition set in the 2000 Morrison decision allows Congress to control only activities that are intrinsically economic in nature—a criterion that could threaten the Endangered Species Act. A second legal “test” established in this case is designed to keep Congress out of areas that are traditionally regulated by states.

Some legal scholars argue that the standards set in the Rehnquist-penned Lopez and Morrison opinions are hard to reconcile with Supreme Court rulings from the past 60 years and thus difficult to apply. This would leave the high court open to deciding future Commerce Clause cases based on justices’ political leanings. Such cases could involve the Clean Air Act, the Clean Water Act, the Superfund and hazardous waste laws, the federal pesticide statute, the Toxic Substances Control Act, the Endangered Species Act, and the National Environmental Policy Act.

Throughout his career on the Supreme Court, Rehnquist was generally viewed by environmental activists as unsympathetic to their concerns. Indeed, in most cases he voted against regulations and laws supported by environmentalists.

But Rehnquist sided with environmental protection in four key Supreme Court rulings that overturned state and local policies controlling trash and hazardous waste. In these cases, the court’s majority held that states and localities cannot restrict the amount of trash or hazardous waste that flows into their landfills from elsewhere in the U.S.—saying only Congress can regulate the interstate flow of waste. Rehnquist dissented in all four cases.

Consistent with his federalist views, Rehnquist argued that states should have the power to protect public health and their natural resources—in this case, landfill capacity. In his dissent in a case involving a hazardous waste facility in Alabama, the chief justice offered detailed legal advice to the state on how it might achieve the goals of the law the high court struck down while avoiding constitutional problems.

Some legal analysts reckon that Roberts, a former clerk to Rehnquist, will lead the high court in a similar vein as the late chief justice. While Roberts no doubt will leave a unique mark on the court, a look at his predecessor’s record may provide some insight into the future direction of court rulings on environmental issues.

Views expressed on this page are those of the author and not necessarily those of ACS.