October 3rd marked the start of a blockbuster Supreme Court term that is certain to bring landmark rulings on a docket full of contentious cases. After last term’s rulings on hot topics like gun control, women’s reproductive rights, and emissions regulations, this term will be closely watched as the court wades into a schedule of major cases on voting rights, affirmative action, election law, and environmental protection. Here at The Climate Board, we’ll be paying particularly close attention to the two key environmental cases already on the docket as well as three pending petitions which could have significant implications for climate action.
Let’s start by discussing the two cases on the Supreme Court’s schedule, Sackett v. EPA and National Pork Producers v. Ross, and their implications for environmental protection and regulation.
On the justices’ first day returning to the bench, the court heard argument in Sackett v. EPA, a case about the scope of the Clean Water Act (CWA).
What’s the case about? Michael and Chantell Sackett of Priest Lake, Idaho began filling in their property to build a lake house when they were ordered to stop construction by the EPA, who claimed that the Sacketts’ property was located on protected wetlands. The wetlands are protected under the Clean Water Act of 1972, which protects the waters of the United States from pollution. The exact parameters of the “waters of the United States” as defined in the CWA have been heavily debated in previous Supreme Court cases. For the past forty-five years, precedent has determined that the CWA’s protections include wetlands adjacent to navigable bodies of water (lakes and rivers). These wetlands are critical carbon sinks which, when polluted or filled in for building purposes, can also contaminate nearby surface water and disrupt critical watersheds. The Sacketts’ claim that the inclusion of wetlands in the CWA places a high burden on landowners, who may not know their property sits on protected land, who must seek want permission to build and bear the costs associated with seeking EPA approval.
What does this case mean? This case could reverse half a century of Supreme Court precedent that has protected wetlands that are adjacent to bodies of water such as ponds and lakes. Based on the oral argument heard last Monday, it seems that the justices may not vote in the Sacketts’ favor and may uphold precedent that protects wetlands from pollution and degradation. More broadly, a narrowing of the interpretation of the CWA could open up other broad environmental laws to new limitations.
On October 11th, the court heard argument in National Pork Producers v. Ross, a case with the potential to limit states’ abilities to set laws that have significant impacts on a nationwide industry.
What’s the case about? The case centers on California Proposition 12, which was approved by California voters in 2018 and requires all pork sold and produced in-state to meet certain animal welfare standards. The National Pork Producer’s Council sued the Secretary of the CA Department of Food & Agriculture in 2019 claiming that the proposition violated the dormant Commerce Clause due to its undue economic burden outside of the state on both producers and consumers. Producers claimed that meeting California’s standards increased costs for out-of-state producers and consumers, discouraging interstate commerce. Since California’s consumption of pork is so large (consuming 13% of all pork produced in the country, but producing just 1% of US pork), failure to meet Prop 12 standards would cost producers a significant loss in market share.
What does this case mean? California has long leveraged its significant buying power to set more stringent standards than other state bodies and federal regulators; this effect is most often seen in the automobile industry with the state’s leadership on fuel efficiency standards and electric vehicle manufacturing. If the court decides that California’s state law places an undue burden on national commerce and violates the Commerce Clause, it could invite further challenge to the state’s leadership in setting climate-related regulations.
In addition to these two cases, there are pending petitions that could be added to this term’s docket. We’ll be watching three that would have significant environmental and climate implications: Department of the Interior v. Navajo Nation, Bohon v. FERC, and Suncor v. Boulder County.
What is Department of the Interior v. Navajo Nation about? This case addresses Native American water rights, and was brought in 2021 during severe drought that affected the Colorado River. The case hinges on whether the government is legally obligated to assess and address the water needs of the Navajo Nation, whose reservation lies within the drainage basin of the Colorado River. Since a 1908 ruling (Winters v. United States), the Supreme Court has recognized that in establishing Native reservations, the government also impliedly reserves sufficient water rights to support the reservation.
What could this case mean? At a time when many water sources are hamstrung by drought year after year, a Supreme Court ruling in favor of maintaining Native water rights could have positive ripple effects on how much federal spending is dedicated to drought protection and water security, especially for vulnerable populations.
What is Bohon v. FERC about? Another pending petition, Bohon v. FERC, was brought by West Virginia and Virginia residents whose land is in the path of the Mountain Valley Pipeline project. The appellants are suing Federal Energy Regulatory Commission (FERC) for its sub-delegation of eminent-domain powers to the private developers of the pipeline. The plaintiffs’ legal team has referenced other rulings, such as West Virginia v. EPA and the January 2022 ruling that prohibited OSHA from mandating COVID-19 vaccination by private employers, where the court ruled that the regulatory agency acted outside of its authority as granted by Congress. Following these recent rulings, the appellants claim that FERC acted outside of its authority when it allowed the Mountain Valley Pipeline development group to use eminent-domain powers.
What could this case mean? Aside from the case’s outcome and the impact on the Mountain Valley pipeline, curtailment of FERC’s authority could have largely negative climate and energy effects. The agency has significant influence over the speed of the US clean energy transition; among other responsibilities, FERC oversees regional development and construction of wind and solar transmission lines to the grid. In addition, FERC has the power to set requirements that proposed energy projects must analyze projected greenhouse gas emissions and environmental impacts before construction begins.
What is Suncor v. Boulder County about? This case could have lasting impacts on climate litigation. The Boulder County Board of Commissioners sued Suncor Energy in 2018 for damages and relief from climate change-related harms. Now, Suncor Energy seeks for federal courts to have jurisdiction over climate-related injury claims, instead of state courts ruling on these cases. State courts tend to rule on cases relating to climate change injury and damages, and these cases have become a new tool for climate activists and action. Federal courts are likely to rule more favorably toward oil and gas companies.
What could this case mean? Roughly two dozen climate-related injury cases against energy companies are underway in other states. If the Supreme Court accepts this petition and rules in favor of Suncor Energy, the states’ ability to litigate climate damages cases would be wiped out. This ruling would greatly decrease the likelihood that oil and gas companies would pay damages for their GHG emissions and contributions to climate change.
The business community consistently monitors, speculates on, and analyzes the passage of new environmental laws, regulations, and executive orders. Biden’s recommitment of the U.S. to the Paris Agreement and the recent passage of the Inflation Reduction Act both generated huge buzz and had corporate leaders, consultants, and industry groups alike asking what these developments meant for climate action plans. This new SCOTUS term is no different—the court has always wielded its power to rule on environmental issues with lasting impacts. In the next nine months, two landmark cases can influence the next decades of environmental protection and state regulatory authority. Hopefully, the Clean Water Act’s provisions will continue to protect crucial wetlands, and individual states will maintain the ability to pass regulations that encourage climate action and decarbonization.