Local View: Supreme Court casting a 'shadow' over protecting the environment - Duluth News Tribune

As residents of the North Shore, Iron Range, and other parts of the region and elsewhere gear up for the unofficial start of summer this Memorial Day weekend, the lakes, rivers, streams, ponds, and other waterways will, with decent weather, be resorted to for boating, fishing, sailing, swimming, and other recreational pursuits.

The enjoyment of these features was marred by

the death on May 18

, at age 88, of noted environmental attorney Grant Merritt. The Duluth native, one of the descendants of the famed Iron Range family that helped create the taconite industry, spent much of his career battling environmental degradation here.

The ability to enjoy those amenities and other natural resources was also clouded by a shadowy recent ruling of the U.S. Supreme Court, and another setback to those who enjoy the environment might be forthcoming soon from that somewhat-beleaguered tribunal.

Early last month, a couple of weeks into spring and on the eve of Earth Day, the justices in the nation’s capital dealt a stunningly swift blow to environmentalists by a narrow 5-4 vote in the case American Rivers v. Louisiana; it reinstated a Trump-era federal regulatory measure restricting the authority of states, including Minnesota, to enforce the federal Clean Water Act.

The stealth way the court did so was as disturbing as what it did, so much so that it prompted Chief Justice John Roberts, a conservative jurist, to join the tribunal’s liberal trio in bemoaning the opacity of the process.

The ruling, along with another expected soon, could substantially impair environmental-protection efforts in Minnesota and elsewhere.

The case arose under the federal measure that allows states to issue permits for industrial discharges into lakes, streams, and other navigable waters. But the regulatory authority central to the oversight of the fight against polluted water was diluted during the final year of the administration of former President Donald Trump by narrowing the standards for state certifications, tightening deadlines, and curtailing other limitations.

A group of states and environmental groups joined in the litigation to overturn the Trump administration’s action. Although prevailing in three court decisions that either suspended or invalidated the Trump-imposed rollbacks, the triumvirate of rulings was submerged by the High Court in its pre-Earth Day decision.

The conservative majority overturned the most sweeping lower-court decision and reinstated the Trump regulatory rollback, using a controversial device that it is dredging up with increasing and objectionable frequency: an unsigned emergency edict from the court’s so-called “shadow docket,” unaccompanied by any formal briefing or argumentation and devoid of any explanatory reasoning.

While disappointed with the outcome, it was the dubious process — or the bypassing of it — that most dismayed the four dissenting jurists, namely the three liberals and the usually conservative Chief Justice Roberts.

The dissent, written by Justice Elena Kagan, bemoaned that the conservative quintet had gone “astray” by expediting the decision “without full briefing and argument,” a shadowy procedure used in other high-profile cases during the past year, including refusing to stay the Texas six-week “vigilante” abortion law and a racially skewed redistricting map in Alabama.

The term “shadow docket” has taken on a life of its own since its inception in 2015, a device many academicians, lawyers, and litigants would like to banish. But it has staying power and may be used with increasing frequency by the current composition of the court, preempting full-scale argumentation, presentation of amici briefing, and mounting public opinion and scrutiny by deviating from the ordinary course and issuing rulings lacking transparency.

Its invocation in the American Rivers litigation may dilute the ability of state environmental agencies — like the alphabet trio in Minnesota, the Environmental Quality Board (EQB), Department of Natural Resources (DNR), and Pollution Control Agency (PCA) — and other watchdogs from engaging in full-scale oversight of industrial projects impacting navigable waters. Its impact could even trickle down to lesser-regulated bodies like ponds and culverts.

An even more ominous environmental ruling may be in the on-deck circle as the High Court justices swing away at environmentally sensitive protocols.

They heard an appeal this winter in West Virginia v. EPA that could minimize the EPA’s regulatory scrutiny of greenhouse-gas emissions under the Clean Air Act. The lawsuit by several states and industry groups aiming to restrict the agency’s regulation of coal-fueled power plants has been described by one scholar, law professor Johnathan Adler of Case Western Reserve University in Cleveland, as “the most significant environmental law case of all time.”

Unlike the Clean Water litigation, this appeal was fully briefed and heard in oral argument that left court watchers with the distinct impression that a majority of the justices are poised to narrow the EPA’s authority, as they did in the American Rivers case.

Should that occur, the dual decisions could leave the agency, which was created 53 years ago during the Nixon administration, a mere shadow of itself.

Gazing through the shadows, it’s not difficult to perceive how the current composition of the High Court seems intent on impairing environmental-protection laws, along with other fundamental rights, too.

Their machinations, both opaque and more transparent, bring to mind the remonstration of the late king of stand-up comedy and social commentary, George Carlin, the subject of an absorbing, two-part cable-television documentary that concludes this Memorial Day weekend. The venerable viewer of human frailties and illogic, just a year before his death in 2008, admonished, in his memorable “Saving the Planet” monologue, against bemoaning the plight of the Earth. “The planet is fine,” he declared. “Compared to the people, the planet is doing great.”

It’s the Supreme Court that’s not.

Marshall H. Tanick is a constitutional law attorney in Minneapolis. He wrote this for the News Tribune.

Marshall Tanick.jpg

Marshall H. Tanick

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