EcoWatch

Whether in the form of historic droughts, blistering wildfires, record-setting hurricanes, extreme heat or catastrophic flooding, it’s clear that natural disasters in the U.S. are increasing in frequency and severity. In the face of a changing climate, we need environmental protection now more than ever. 

But when environmental issues are challenged, will they be protected by the nation’s highest court?

Unfortunately, it doesn’t seem so. 

This past June, the Supreme Court restricted the ability of the U.S. Environmental Protection Agency (EPA) to fight the climate crisis in its decision to strike down West Virginia v. EPA. With its conservative majority, the current Supreme Court justices have been called “the most anti-environmental court in the modern era.”1

With more environmental issues likely to come before the court soon, EcoWatch took a deeper dive into where the nine justices stand on climate issues and graded them accordingly. 

In assigning our “Eco-Grades,” we looked at the top 40 environmentally related cases decided by the Supreme Court since 1992 (when the longest-serving justice, Clarence Thomas, began his term) in order to evaluate the environmental track record of each justice. 

With more failures than passing grades, it seems our justices have some studying up to do. 

Chief Justice John G. Roberts Jr.

Eco-Grade: F

Start date: September 29, 2005

Appointed by: President George W. Bush (R)

  • Of the cases we considered, Roberts voted in favor of environmental victories 26.08% of the time.  
  • Roberts spent the first eight years as chief justice voting against stronger environmental protections.
  • Roberts helped pass two significant environmental victories in his ninth year in office.

Chief Justice John G. Roberts Jr. is a practitioner of “judicial constraint,” and has been quoted saying he’s an “avid supporter of the belief that the role of the court is an umpire, meaning that the role is to interpret the rules, not create them.”2

In 2007, Roberts voted against Massachusetts v. EPA. In this landmark case, the majority voted in favor of Massachusetts, ruling that greenhouse gas emissions are considered “air pollutants” under the Clean Air Act and that states can sue the EPA if it fails to regulate them. 

Roberts voted against the state, saying he would have dismissed its claims. Chief Justice Roberts’ dissenting opinion argued that Massachusetts should not have had standing to sue, because the potential injuries from global warming were not concrete.3

However, in regard to Roberts’ environmental record, some sources say, “it’s not good, but don’t count him out.”4 

In 2014, Roberts voted in favor of two significant environmental victories. The first was EPA v. EME Homer City Generation, in which Roberts agreed with the majority that the EPA must oversee that states meet the federal standards of the Clean Air Act. 

The second, Utility Air Regulatory Group v. EPA, was similar, with Roberts and the court upholding the EPA’s ability to regulate greenhouse gas emissions.5,6

In 2015, Roberts sided with the conservative majority in Michigan v. EPA. The landmark case held that the EPA must consider costs when interpreting violations of the Clean Air Act, a decision that some felt would doom then-President Barack Obama’s climate agenda entirely.7

Most recently, in the 2022 case, West Virginia v. EPA, Roberts and the majority struck down the EPA’s authority to create emission caps based on the “generation shifting approach” without first getting Congressional approval. Roberts wrote the following:

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day’… But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme… A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” 8

Associate Justice Clarence Thomas 

Eco-Grade: F

Start date: October 23, 1991

Appointed by: President George H.W. Bush (R)

  • Of the cases we considered, Thomas voted in favor of environmental victories 12.5% of the time. 
  • Justice Thomas received the lowest Eco-Grade on our list. 

Thomas is considered the most conservative justice on the bench and also believes that federal agencies are given too much power.9

Thomas’ anti-environmental stance can be traced back to the late 1970s when he worked for Monsanto, the parent company of Roundup. Thomas left Monsanto in 1979 for a two-year stint advising then-Senator John Danforth (R-MO) on environmental issues. 

He worked with corporate lobbyists to fight federal laws like the Toxic Substances Control Act — a provision that gives the EPA authority to require reporting, record-keeping, testing requirements and restrictions relating to chemical substances and mixtures.10

As mentioned, Thomas voted against MA v. EPA and strongly believes that it was wrongly decided. Thomas joined Alito in signing Scalia’s dissent concluding that the court overstepped in affirming the EPA’s authority to regulate greenhouse gasses as air pollutants.11 

We don’t feel like we need to go into more detail to gauge Thomas’ anti-environmental stance, but we have a couple more things to add:

  • Thomas has repeatedly sided with coal and oil companies and has written decisions in cases decided in favor of Shell, Texaco and Entergy.
  • Thomas helped limit the liability provisions of the EPA’s Superfund program. This program helps clean up uncontrolled or abandoned hazardous-waste sites as well as accidents, spills and other emergency contaminants released into the environment.12

Associate Justice Samuel A. Alito, Jr. 

Eco-Grade: F 

Start date: January 31, 2006

Appointed by: President George W. Bush (R)

  • Of the cases we considered, Alito voted in favor of environmental victories 14.28% of the time. 
  • Alito is an originalist who believes that Congress delegates too much power to governmental agencies (like the EPA) without safeguards.
  • Alito received the second lowest Eco-Grade, ranking above only Justice Clarence Thomas.

Justice Alito has similar views as Thomas — they even had a 90% agreement rate in the 2021 term. Justice Alito is considered the second-most conservative justice on the Court with right-wing and libertarian ideals.13 Unlike Roberts, Alito’s environmental stance is a bit more clear — and unfavorable.

Environmentalists expressed concerns about Alito joining the court back in 2006 when he expressed his support of the 1997 decision of Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc. (MEI). The case resulted in a $2.6 million fine against MEI being tossed out over lack of proof of pollution to the Delaware River, despite the company being cited for 150 Clean Water Act violations. 

Alito was a strong supporter of this decision.14

In 2007, Alito voted against MA vs. EPA. In his dissent, he argued that states shouldn’t be able to sue the EPA — even if the agency fails to regulate greenhouse gas emissions — and signed Scalia’s dissent concluding that the court overstepped when it affirmed the EPA’s authority to regulate greenhouse gasses as air pollutants.15

In the 2014 case, Utility Air Regulatory Group v. EPA, Alito joined the majority in refusing to allow the EPA to regulate greenhouse gas emissions coming from smaller sources, like shopping centers, apartment buildings and schools. He also reiterated his belief that MA v. EPA was wrongly decided and should be overturned, saying that greenhouse gas emissions should not be considered air pollutants.16

Even a decade after MA v. EPA, Alito maintains that it should be overturned, saying this in a 2017 keynote speech at the Claremont Institute:

“A pollutant is a subject that is harmful to human beings or to animals or to plants. Carbon dioxide is not a pollutant. Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth. All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting. When Congress authorized the regulation of pollutants, what it had in mind were substances like sulfur dioxide, or particulate matter—basically, soot or smoke in the air. Congress was not thinking about carbon dioxide or other greenhouse gasses.”17

Even in 2022, Alito is still calling for the court to revisit the precedent set in MA v. EPA — saying it was wrong from the start. Environmentalists remain worried it will happen — especially because he used similar language in Dobbs v. Jackson Women’s Health Org. to overturn Roe v. Wade, saying that the decision was “egregiously wrong from the start.”18  

Associate Justice Sonia Sotomayor 

Eco-Grade: A

Start date: August 8, 2009

Appointed by: President Barack Obama (D)

  • Of the cases we considered, Sotomayor voted in favor of environmental victories 88.88% of the time.
  • Justice Sotomayor is tied with Associate Justice Elena Kagan for the highest Eco-Grade on the list.
  • Sotomayor has a history of voting pro-environment with one notable exception, which we detail below.

Justice Sonia Sotomayor is considered the most liberal member of the court, exciting many environmental groups with her appointment despite her lack of experience in deciding environmental cases.19 Sotomayer did hear a few environmental cases before she became a justice, tending to vote in favor of the planet.  

The most significant was voting in favor of using additional funds to protect aquatic life in Riverkeeper Inc. v. EPA (2007). The case was centered on whether the EPA should consider the cost-effectiveness of measures to protect aquatic life in lakes and rivers near power plants. 

Sotomayor wrote an 80-page opinion arguing that the additional cost was “worth the benefits in reducing adverse environmental impacts.” Unfortunately, the Supreme Court would eventually overturn her decision, ruling in favor of the power plants.20

She hasn’t always ruled in favor of the environment, though. For example, in Environmental Defense v. EPA (2004), Sotomayor voted against the environmentalists challenging the EPA’s acceptance of a New York state plan that would delay meeting air quality standards.21

That same year, Sotomayor expressed her concern about global warming. An unfinished climate lawsuit pinned eight states, New York City and environmental groups against five of the country’s largest utilities, seeking an injunction for the power plants to reduce their emissions by 3% over the next decade. There were arguments in the energy industry that a ruling could lead to more climate-related nuisance claims, but Sotomayor criticized those arguments saying:

“I have absolutely no idea about the science of global warming… But if the science is right, we have relegated ourselves to killing the world in the foreseeable future. Not in centuries to come but in the very near future.”22

Since becoming a justice, Sotomayor has typically voted in favor of the environment. In 2014, she helped pass the two environmental victories we discussed earlier — EPA v. EME Homer City Generation and Utility Air Regulatory Group v. EPA. Sotomayer also voted in favor of the recent WV vs. EPA, despite being in the minority.

Associate Justice Elena Kagan

Eco-Grade: A

Start date: August 7, 2010

Appointed by: President Barack Obama (D)

  • Of the cases we considered, Kagan voted in favor of environmental victories 88.88% of the time.
  • Justice Kagan is tied with Associate Justice Sotomayor for the highest Eco-Grade on our list.
  • Kagan penned the dissent in the 2022 revisiting of West Virginia v. EPA, which struck down the EPA’s authority to create emission caps.

Justice Elena Kagan is considered the third-most liberal justice in the court with a pragmatic approach to the law. 

Unlike other justices who are strict textualists, Kagan considers current matters of the world — like the urgency for climate solutions — in her decisions, much to the delight of environmentalists.23

Before she was a justice, Kagan spent six years as the dean of Harvard Law School, where she led the creation of an Environmental Law Program and an Environmental Law and Policy Clinic. In a letter to the university, Kagan wrote that environmental legal practice needs to expand past regular litigation “because of the growing perils posed by greenhouse gas emissions and global climate change.”24

Recently, Kagan has been most outspoken with — and outraged by — the outcome of the 2022 revisiting of West Virginia v. EPA. As mentioned, the majority struck down the EPA’s authority to create emission caps, which many say limits the agency’s ability to fight the climate crisis. In Kagan’s scathing dissent to the ruling in WV v. EPA, she wrote:

“Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening.”25

Kagan strongly disagrees with her conservative peers on the idea that agencies like the EPA are given too much power, saying instead that rulings like WV v. EPA “prevent agencies from doing important work, even though that is what Congress directed.” She went on to say that the “anti-administrative-state stance shows up in the majority opinion and it suffuses the concurrence.”26

Associate Justice Neil M. Gorsuch 

Eco-Grade: F

Start date: August 10, 2017

Appointed by: President Donald Trump (R)

  • Of the cases we considered, Gorsuch voted in favor of environmental victories 20% of the time.  
  • Gorsuch’s views have been called “profoundly dangerous for the planet’s climate” by environmentalists.27

Justice Gorsuch is another believer that the Constitution should be interpreted exactly as written. He’s considered the third-most conservative judge on the bench, although he is often viewed as more of a libertarian-leaning judge that favors states’ rights over federal power.28

When it comes to the environment, Gorsuch doesn’t seem to have much of an identifiable stance. However, he has ruled pro-environment in several cases when he was a judge in the 10th Circuit Court.

For example, Gorsuch voted in favor of upholding Colorado’s Renewable Portfolio Standards instead of siding with coal producers who claimed it was interfering with interstate commerce in the case Energy & Environment Legal v. Epel.29

In United States v. Magnesium Corp. of America, Gorsuch held that the EPA was allowed to change its interpretation of toxic-waste regulation without inviting public “notice and comment.”30

In New Mexico Off-Highway Vehicle Alliance v. US Forest Service (2013), Gorsuch went out of his way to dissent from a decision allowing public-interest organizations to intervene in a case over the management of national forests. If his position wasn’t rejected by the majority, it would have excluded the public from participating in federal environmental litigation.31

Lastly, in the 2022 WV v. EPA, Gorsuch voted alongside conservative justices that the EPA doesn’t have the authority to limit greenhouse gas emissions from power plants without prior Congressional approval. He also wrote a concurring opinion emphasizing the importance of having Congress dictate major social or economic shifts rather than federal agencies.32

Associate Justice Brett M. Kavanaugh 

Eco-Grade: D

Start date: October 6, 2018

Appointed by: President Donald Trump (R)

  • Of the cases we considered, Kavanaugh voted in favor of environmental victories 40% of the time.  
  • Kavanaugh has said that “global warming is not a blank check” for executive action.33
  • Kavanaugh has publicly discussed cases that he would like to overturn, including those he feels give the EPA too much power.

Justice Brett Kavanaugh is described as an originalist and textualist (someone who interprets the law as it is written) with a track record showing skepticism toward environmental interests. 

Historically, Kavanaugh has sided with industries when they face regulatory agencies (like the EPA) and is outspoken in his belief that agencies are given too much power.

Kavanaugh was a judge on the D.C. Circuit bench when the Clean Power Plan litigation came before him in 2016. He referred to the part of the Clean Air Act in question as a “thin statute” that “wasn’t designed” to address climate change.34

Kavanaugh wrote the opinion of the D.C. Circuit panel against the 2014 EPA v. EME Homer City Generation, a decision that would later be overturned in favor of the EPA by the Supreme Court. The Supreme Court decided that the EPA does in fact have an absolute mandate to require states to meet the federal standards of the Clean Air Act — much to the praise of environmentalists.35

In White Stallion Energy Center v. EPA, (2014), Kavanaugh argued that the EPA must consider costs when determining whether to regulate emissions from power plants. When it came before the Supreme Court, the majority of the Justices upheld the EPA’s strict controls on mercury pollution from coal-fired power plants. However, one year later, the Court echoed Kavanaugh’s opinion that the EPA should consider costs when determining regulations with the 2015 case Michigan v. EPA.36,37

It’s worth mentioning that Kavanaugh has publicly discussed cases that he disagrees with and, now as a Justice, would like to overturn. Many of those cases are ones that, according to Kavanaugh, give the EPA too much authority.

For example, in the 2013 case Decker v. Northwest Environmental Defense Center (NEDC), the Supreme Court ruled in part that it was up to the EPA — not the federal courts — to decide where permits need to be obtained before pollutants are discharged from any point source into the navigable waters of the United States, per Auer deference.38 In 2016, Kavanaugh said that cases like Decker and Auer are “dangerous permission slip[s] for the arrogation of power.”39

Most recently, Kavanaugh voted to limit the EPA’s ability to cap pollution emissions from power plants in WV v. EPA, alongside Justices Roberts, Alito and Neil Gorsuch.40

Associate Justice Amy Coney Barrett 

Eco-Grade: D

Start date: October 27, 2020

Appointed by: President Donald Trump (R)

  • Of the cases we considered, Barrett voted in favor of environmental victories 66% of the time. 
  • With only two years serving on the Supreme Court, Barrett has a sparse judicial record on the environment.

Justice Amy Coney Barrett’s accession to the U.S. The Supreme Court sealed a conservative majority, which many viewed as a threat to environmental protections. Similar to her conservative peers, Barrett is described as an originalist and textualist who believes that “[the Constitution’s] original public meaning is authoritative.”41

Most of what we know about Barrett’s views on the climate come from her confirmation hearings. If those comments were telling, they weren’t telling anything good.

During the hearings, Barrett wouldn’t say whether or not she believed the scientific consensus that human activity was driving climate change, calling it “a very contentious matter of public debate.” She also responded to one climate-related question by saying, “I’m certainly not a scientist. I mean, I’ve read things on climate change. I would not say I have firm views on it.”42

Let’s put this into context. While many Supreme Court nominees keep personal opinions to themselves during confirmation hearings, even Kavanaugh acknowledged the existence of global warming during his confirmation hearings in 2018. Barrett’s reluctance to do so has many worried she’s a climate denier.43

Critics have also been quick to point out Barrett’s connection to “big oil,” as her father, Michael Coney, worked for Royal Dutch Shell for 29 years. Barrett would recuse herself from cases involving the oil giant while she was sitting on the Seventh Circuit.44

However, in 2021, Barrett did not recuse herself from BP v. Baltimore — a Supreme Court case that was brought against Shell and several other oil companies — and voted in favor of the oil companies rather than the city, which was seeking monetary damages due to costs caused by climate change.45

In 2022, Barrett joined the majority in voting against the EPA in WV. vs. EPA.

Associate Justice Ketanji Brown Jackson

Eco-Grade: TBD

Start date: June 30, 2022

Appointed by: President Joe Biden (D)

  • Justice Jackson has not yet been a part of any U.S. Supreme Court cases that could be considered an environmental victory or defeat.

Although climate activists have praised Justice Ketanji Jackson’s appointment, her environmental record is quite mixed. It seems Jackson has sided with pro-environmental groups just as often as she’s sided against them. However, most of her rulings that come off as “anti-environment” are a testament to Jackson’s strict belief in following the rules and technical case details.46

For instance, Jackson voted against environmental groups suing the federal government over issues of oil drilling permits that led to the Deepwater Horizon oil spill. In the 2010 case Center for Biological Diversity v. Department of the Interior, the plaintiff called for forcing the government agency to finalize its review of practices that could lead to future environmental disasters. 

Jackson ruled that, while the Department of the Interior had an obligation to review its practices, it was not mandated to actually complete the review or announce the findings publicly, per the National Environmental Policy Act.47

Then, in 2016, Jackson ruled in favor of the territory of Guam, which was asserting the U.S. Navy should be held partially responsible for cleanup costs from an improperly sealed landfill in the 1940s. The Navy asked for the suit to be dismissed, saying it was too late to seek compensation. Jackson rejected that motion and allowed the case to proceed. The Supreme Court would unanimously rule in favor of Guam, stating it had the right to pursue action.48

In her biggest environmental case, Jackson ruled against environmentalists challenging the Trump administration’s construction of the U.S.-Mexico border wall. Activists claimed the construction would violate environmental laws, but Judge Jackson cited a 1996 law that prohibited judicial review of the waiving of environmental law when constructing border fences.49

Examining these cases, it doesn’t seem Jackson disagrees with environmentalists, but rather believes in following the procedural rules above all. Which, one could argue, is simply her job. Long story short, we’ll just have to wait and see how Jackson will vote in upcoming environmental cases.

Methodology

For the purpose of grading from an unbiased perspective, EcoWatch examined 40 laws that were determined an “environmental victory” or “environmental defeat” by our law consultant, Heather Croshaw. The laws were chosen based on the longest-serving justice’s tenure. Based on how the justice voted (with the majority or dissenting) for each case they participated in, the justice was assigned a percentage grade for the number of times they promoted an environmental victory. We converted this figure into an “Eco-Grade” according to the following scale: 

  • 85%-100% – A
  • 69%-84% – B
  • 53%-68% – C 
  • 37%-52% – D
  • 36% and below – F

About Heather Croshaw: Heather is an environmental advocate and professional who has extensive experience in the policy, communications and legal realms, including for judicial clerkships and environmental organizations located around the world. She has a Juris Doctor and LL.M. in Environmental Law from Vermont Law and Graduate School, a Master of Environmental Management from Duke University and a Bachelor of Arts from Mount Holyoke College.

In her free time, Heather volunteers with several environmental NGOs, cuddles with her dogs, works at a vineyard, plays tennis, goes on hikes and religiously watches every Arsenal (English Premier League) game.

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