How Scalia's Death Could Be a Pivotal Factor on Environmental and Climate Issues
Justice Antonin Scalia left an indelible mark on American law. His prodigious intellect, distinctive style and sharp wit will be sorely missed by his family, friends and colleagues.
His passing also creates a once-in-a-lifetime opportunity to shift the balance of power on the Supreme Court toward greater protection for the environment and greater access to the courts by those most affected by pollution and resource degradation.
A look at Scalia’s legacy reveals why his absence in the coming months could be a pivotal factor on environmental issues.
With few exceptions, such as his opinion in Whitman vs. American Trucking upholding the Environmental Protection Agency’s (EPA) authority to set health-based air quality standards without regard to cost and his opinion in City of Chicago v. Environmental Defense Fund rejecting industry arguments that coal ash isn’t a hazardous waste, Justice Scalia’s environmental legacy is decidedly negative.
Interpreting "Standing" and "Harm"
He consistently voted in favor of property rights over protection of endangered species, wetlands and other natural resources. He dissented in the court’s landmark ruling in Massachusetts vs. EPA that the Clean Air Act authorizes the agency to regulate the carbon pollution causing global warming and ocean acidification.
He wrote the majority opinion in a case limiting EPA’s authority to require pre-construction permits for new power plants that only emit greenhouse gases. He wrote the opinion overturning the mercury rule on a technicality—namely, that EPA should have considered cost as a threshold matter before even embarking on the rule-making instead of at the stage when the regulations were actually being applied to specific facilities.
He argued that the Clean Water Act should be narrowly construed to apply only to “relatively permanent bodies of water” rather than, as the lower courts had consistently ruled for more than 30 years, to the entire tributary systems of the nation’s major waterways.
And he is the author of several decisions severely limiting the ability of environmental plaintiffs to challenge unlawful government actions. This includes Lujan vs. Defenders of Wildlife, which the late Justice Blackmun in his dissent characterized as a “slash and burn expedition through the law of environmental standing.”
To establish standing, a plaintiff must show how it is injured by the action being challenged. Scalia applied a more liberal test of injury for industry plaintiffs than for environmental plaintiffs. Standing was presumed whenever industry alleged that a government action might cause undue economic harm but not when an environmental organization alleged that the same action would cause undue environmental harm.
Whither the Clean Power Plan?
Though President Obama has said he intends to nominate a successor “in due course,” Senate Republicans have vowed to stall the confirmation process in the hope that they will win the White House and have the opportunity to nominate someone more to their liking.
Suddenly the Supreme Court has become a huge prize in the 2016 elections and, given the stakes involved, it is likely that the vacancy will remain well into 2017 and the court will be forced to make a number of difficult decisions with an evenly divided bench.
A split court has important implications in a number of key environmental cases.
Top of the list is the president’s Clean Power Plan (CPP), a rule that requires states to develop plans to lower carbon dioxide emissions from power plants. Only days before Scalia’s death, the court in a 5-4 party line vote blocked the rule’s implementation pending a decision by the DC Circuit, which has scheduled oral argument for June 2. The stay order provides that it will remain in effect until the Supreme Court either denies review (unlikely) or issues a final decision.
Most observers believe the government, arguing that the Clean Power Plan is legal, drew a favorable panel on the DC Circuit court, which includes Judge Sri Srinivasan, who is rumored to be on Obama’s short list of nominees.
Assuming Srinivasan remains on the panel and further assuming the panel issues a decision this year upholding the CPP (not a forgone conclusion), there is a good chance the vacancy on the Supreme Court will not be filled by the time the case arrives there in 2017. This increases the odds of a 4-4 split, which would result in the DC Circuit decision being upheld and the CPP dodging a bullet.
Clean Waters Act at Court
Another case that may be affected by Scalia’s departure but with far less at stake is Hawkes v. Corps of Engineers.
The question presented is whether landowners can go to court immediately when the regulators make what is called a “jurisdictional determination” under the Clean Water Act finding—for example, that there are wetlands on the property that may require a permit to fill.
There is a clear conflict in the circuits on this question. The Eighth Circuit in Hawkes held that jurisdictional determinations were reviewable in court, whereas the Fifth Circuit in Belle Co v. Corps of Engineers ruled that they are not.
Interestingly enough, the disagreement rests on how to read Justice Scalia’s opinion in Sackett v. EPA. In that case, a compliance order under the Clean Water Act required restoration of an allegedly illegally filled wetland and exposed the recipient to potential penalties of US$75,000 per day. Scalia ruled that the compliance order in this case is “final agency action” for which there is no adequate remedy in a court other than judicial review under the Administrative Procedure Act.
Another case being closely watched is the challenge to EPA’s Clean Water Rule that seeks to “clarify” the jurisdictional scope of the Clean Water Act and whether it covers tributaries that feed into waters protected by the act.
The need for clarification stems in large part from the Supreme Court’s decision in Rapanos v. U.S., where the court split 4-1-4 and Justice Scalia authored a plurality opinion that would significantly reduce the scope of the act.
Justice Kennedy wrote a concurring opinion rejecting Scalia’s approach and establishing the so-called “significance nexus” test—requiring the government to prove that a wetland, alone or in combination with other wetlands in the watershed, plays an important role in protecting the quality of the water downstream and therefore is subject to the Clean Water Act. Because Kennedy’s significant test has been adopted by nine circuit courts as the controlling opinion from Rapanos, EPA used it as the basis for the Clean Water Rule.
The Sixth Circuit has stayed the rule pending its decision on whether it has exclusive authority to decide its legality. If the Sixth Circuit asserts jurisdiction, a final decision could be issued this year and the court would then be faced with another petition for review, knowing that it could result in yet another divided decision.
Finally there is a case involving the cleanup of Chesapeake Bay which is heavily polluted by agricultural runoff and other sources. The Third Circuit upheld EPA’s landmark cleanup plan in a case brought by the American Farm Bureau and joined by over two dozen states.
The issue presented is whether EPA exceeded it authority by developing a complex “pollution budget” and allocating responsibility for reducing the inputs of nitrogen and phosphorous throughout the eight states that comprise the basin. The conference on whether to grant review will be considered at the next conference which is scheduled for Feb. 26. This will be the first test to see whether the post-Scalia court has the appetite to take up a case where there could be a 4-4 split.
With these and other environmental issues on the docket, the absence of Scalia will have a huge impact—as will the question of his eventual successor.
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EcoWatch Daily Newsletter
By Heather Houser
Compost. Fly less. Reduce your meat consumption. Say no to plastic. These imperatives are familiar ones in the repertoire of individual actions to reduce a person's environmental impact. Don't have kids, or maybe just one. This climate action appears less frequently in that repertoire, but it's gaining currency as climate catastrophes mount. One study has shown that the reduction of greenhouse gas emissions from having one fewer child in the United States is 20 times higher—yes 2000% greater—than the impact of lifestyle changes like those listed above.
The Stickiness of Population<p>Only five years ago, there was minimal coverage of the child-free for climate movement. AOC is just one of many reasons it's lighting up now. New scientific analyses, scholarly debates, and social media conversations have shined a light on reproduction and climate. The influential <a href="https://www.drawdown.org/" target="_blank">Project Drawdown</a> framework for climate mitigation includes a list of solutions ranked by their potential impact, two of which—educating girls and providing access to family planning—they project will have <a href="https://www.drawdown.org/solutions/table-of-solutions" target="_blank">a greater combined impact</a> on reducing greenhouse gas emissions than almost all other climate solutions because of their effect on fertility rates.</p><p>In January 2020, <a href="https://academic.oup.com/bioscience/article/70/1/8/5610806" target="_blank">11,000 scientists signed onto a study that warned</a> about the unfolding climate emergency. The authors prescribe steps in six sectors that can prevent irreversible planetary collapse, including that "the world population must be stabilized—and, ideally, gradually reduced—within a framework that ensures social integrity." The framework they propose includes universal access to family planning as well as education and equity for young women. (Other <a href="https://doi.org/10.1073/pnas.1410465111" target="_blank" rel="noopener noreferrer">scientific takes</a> on population-based climate actions are more skeptical about their immediate impact given the scale of fertility reductions needed to balance out longer lifespans.)</p><p>Even before 2020, a new movement was afoot to address climate by forgoing reproduction. Blythe Pepino, a British musician in her 30s, formed BirthStrike in 2018 to build a community of people—typically women-identified—who have opted not to reproduce in response to the ecological and social crises that climate change is creating. In the wake of the Black Lives Matter protests this summer, the group recognized the need to acknowledge the oppression that colors conversations about reproduction as it relates to climate and so reformed itself into a support group for those grieving parenthood. Their new stated goal is to channel that loss into action on climate justice.</p><p>Organizations such as <a href="https://conceivablefuture.org/" target="_blank" rel="noopener noreferrer">Conceivable Future</a>, however, continue to keep reproduction at the fore. Led by climate activists Meghan Kallman and Josephine Ferorelli, Conceivable Future is raising awareness about how the climate crisis affects "<a href="https://conceivablefuture.org/about" target="_blank" rel="noopener noreferrer">intimate choices</a>" like reproduction. The Conceivable Future and now-defunct BirthStrike campaigns share ideological terrain with "<a href="https://www.npr.org/2016/08/18/479349760/should-we-be-having-kids-in-the-age-of-climate-change" target="_blank" rel="noopener noreferrer">population engineers</a>," a group of bioethicists who <a href="https://doi.org/10.5840/soctheorpract201642430" target="_blank" rel="noopener noreferrer">forward policies for</a> limiting the size of the global population through positive incentives like family planning classes and negative ones such as taxes on wealthy procreators. </p><p>In proposing specific policies rather than individual action, population engineers acknowledge the structures within which reproductive choices occur, everything from media influence to the tax code. Even with this shift to the structural, however, the racist, sexist, colonialist, and nativist legacies of the population question within environmentalism still plague child-free for climate. As do the historical and social injustices that constrain so-called choices.</p>
Racism and Xenophobia in Environmentalism<p>This summer and fall, the climate crisis and its correlated catastrophes—<a href="https://www.cbsnews.com/news/heat-wave-western-united-states/" target="_blank">extreme heat</a>, <a href="https://www.aljazeera.com/news/2020/07/14/a-third-of-bangladesh-underwater-after-heavy-rains-floods/" target="_blank">flooding</a>, <a href="https://www.theguardian.com/world/wildfires" target="_blank">wildfires</a>—are intensifying alongside Black Lives Matter uprisings and the <a href="http://www.yesmagazine.org/health-happiness/2020/06/09/coronavirus-public-health-social-justice/" target="_blank">coronavirus health disparities</a> among Black, Indigenous, and Latinx populations. This confluence has brought overdue attention to racism in environmentalism, as evidenced by the Audubon Society's recent <a href="http://audubon.org/magazine/fall-2020/revealing-past-create-future" target="_blank">reckoning</a> with racial injustices in its past and present, including <a href="https://www.audubon.org/news/the-myth-john-james-audubon" target="_blank">publicizing</a> that its famed founder was a White supremacist and a slaveholder. The intersections of <a href="https://www.yesmagazine.org/opinion/2020/09/23/election-black-voters-climate/" target="_blank">climate justice and racial justice</a> have also come to the fore through <a href="https://www.nytimes.com/2020/10/05/climate/heat-minority-school-performance.html" target="_blank">studies of how Black communities are greatly harmed by hotter temperatures</a> and through the popular <a href="https://www.intersectionalenvironmentalist.com/" target="_blank">intersectional environmentalist</a> platform created by Leah Thomas, a young Black activist and "<a href="https://www.greengirlleah.com/about-1" target="_blank">eco-communicator</a>." To these reckonings we need to add the racism and xenophobia that have long characterized environmentally motivated population controls.</p><p>The New York Times recently exposed these sins in <a href="https://www.nytimes.com/2019/08/14/us/anti-immigration-cordelia-scaife-may.html/" target="_blank">a profile of Cordelia Scaife May</a>, showing how this heir to the Mellon fortune converted a love of birding into a network of anti-immigration, pro-population-control organizations that still influence politics today. In the 1960s May linked threatened birdlife to the rapidly expanding human population. May wasn't wrong to see and worry over this link: A host of human activities—from <a href="https://www.smithsonianmag.com/science-nature/popular-pesticides-linked-drops-bird-population-180951971/" target="_blank" rel="noopener noreferrer">toxic agriculture and industry</a> to <a href="https://journals.plos.org/plosbiology/article?id=10.1371/journal.pbio.0050157" target="_blank" rel="noopener noreferrer">sprawling settlements</a> and <a href="https://www.npr.org/2017/10/05/555949789/light-pollution-can-impact-noctural-bird-migration" target="_blank" rel="noopener noreferrer">light</a> and <a href="https://www.mnn.com/earth-matters/animals/blogs/birds-live-near-human-noise-sing-louder-shorter-songs" target="_blank" rel="noopener noreferrer">noise pollution</a>—decimate avian habitats and habits. May's anti-immigration approach, however, indicates how readily environmentalism can mutate into racist and xenophobic actions.</p><p>The Times investigators show that "protecting natural habitats and helping women prevent unplanned pregnancies merged over time into a single goal of preserving the environment by discouraging offspring altogether." Taken on its own, this goal resonates with Conceivable Future's and population engineers' aims. To be clear, this does not mean that today's child-free climate advocates are racist nativists. However, it does indicate how readily the affiliation arises because of the ugly history of forced population control.</p>
Contemporary Examples<p>And this history is hardly past. For example, race and class conflicts erupted around a population platform within the Sierra Club only 15 years ago. In 2004, a faction of club members took a page from May and argued that more people living in the U.S. meant more encroachment on less developed land and water. As with May's effort, this anti-immigration push amounted to "the greening of hate," according to the Southern Poverty Law Center and Anti-Defamation League, who entered the dispute when they found White supremacists lobbying for anti-immigration Sierra Club board candidates. A 2010 <a href="https://www.splcenter.org/20100630/greenwash-nativists-environmentalism-and-hypocrisy-hate" target="_blank">SPLC report</a> firms up the connection between environmentalist intentions and racist agendas by explaining why White nationalist John Tanton infiltrated the club: "Using an organization perceived by the public as part of the liberal left would insulate nativists from charges of racism—charges that … would likely otherwise stick."</p><p>Charges of racism ultimately did stick to Tanton and his anti-immigration, pro-population-control allies. And they continue to stick in analyses of the child-free for climate movement today. Earlier this year, climate journalist Meehan Crist <a href="https://www.lrb.co.uk/the-paper/v42/n05/meehan-crist/is-it-ok-to-have-a-child" target="_blank">took up</a> AOC's question of whether it's OK to have a child. In arriving at an answer (for her, yes), she affiliates child-free positions with "anti-feminist, racist and anti-human" values and with bad science. "Darker visions" proceed from this analysis, she writes, visions of those who believe "racial purity will save the planet. Closed borders. . . . Ecofascist death squads." The dark visions Crist spins from the child-free for climate question underscore how readily calls for reproductive limits touch the third rails of modern environmentalism: racism, eugenics, xenophobia, even death-dealing.</p><p>We get even closer to these third rails when we consider that the question of whether to reproduce is, for some people, no choice at all. Modern efforts to limit fertility, which ramped up after World War II, have targeted poor women in the Global South, and Black, Indigenous, and people of color in the U.S. using coercion and force. BIPOC reproductive justice advocates such as Loretta Ross have condemned dichotomous pro-abortion-rights versus anti-abortion politics for producing "<a href="https://www.google.com/books/edition/Radical_Reproductive_Justice/hN-4DgAAQBAJ?hl=en&gbpv=1&dq=loretta%20ross%20radical%20reproductive&pg=PT8&printsec=frontcover&bsq=anemic" target="_blank" rel="noopener noreferrer">anemic political analyses</a>" that ignore the reality of forced sterilizations in prisons and the appallingly high maternal mortality rate for Black women in the U.S. These are all forms of what medical historian and ethicist Harriet Washington calls "<a href="https://www.youtube.com/watch?v=J8WCS1Rs8K8" target="_blank" rel="noopener noreferrer">medical apartheid</a>."</p>
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By Sharon Guynup
At this time of year, in Russia's far north Laptev Sea, the sun hovers near the horizon during the day, generating little warmth, as the region heads towards months of polar night. By late September or early October, the sea's shallow waters should be a vast, frozen expanse.
Comparison of autumn sea ice formation for the first half of October 2012 (the record year for Arctic sea ice extent loss) and in 2020 (second place for sea ice extent loss). The satellite record goes back to 1979. @Icy_Samuel, data provided by NSIDC
Arctic sea ice extent on Oct. 25, 2020 was at a record low 5.613 million square kilometers for this date, surpassing the record set in 2019 of 6.174 million square kilometers. ChArctic NSIDC
The Arctic appears to be changing into an entirely new climate state due to rapid warming. The extent of sea ice in the late summer, when it reaches its minimum each year, has already entered a statistically different climate, with surface air temperatures and the number of days with rain instead of snow also beginning to transition. Simmi Sinha, ©UCAR
A polar bear prowls the Arctic shoreline. VisualHunt.com
A fire burning through northern forest in Krasnoyarsk, Siberia, in July 2020. Greenpeace International
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By Peter A. Kloess
Picture Antarctica today and what comes to mind? Large ice floes bobbing in the Southern Ocean? Maybe a remote outpost populated with scientists from around the world? Or perhaps colonies of penguins puttering amid vast open tracts of snow?
Giants of the Sky<p>As their name suggests, these ancient birds had sharp, bony spikes protruding from sawlike jaws. Resembling teeth, these spikes would have helped them catch squid or fish. We also studied another remarkable feature of the pelagornithids – their imposing size.</p><p>The largest flying bird alive today is the <a href="https://www.nationalgeographic.com/animals/birds/group/albatrosses/" target="_blank">wandering albatross</a>, which has a wingspan that reaches 11 ½ feet. The Antarctic pelagornithids fossils we studied have a wingspan nearly double that – about 21 feet across. If you tipped a two-story building on its side, that's about 20 feet.</p><p>Across Earth's history, very few groups of vertebrates have achieved powered flight – and only two reached truly giant sizes: birds and a group of <a href="https://www.amnh.org/exhibitions/pterosaurs-flight-in-the-age-of-dinosaurs/what-is-a-pterosaur" target="_blank" rel="noopener noreferrer">reptiles called pterosaurs</a>.</p>
Full-size model of a Quetzalcoatlus on display at JuraPark in Baltow, Poland. Aneta Leszkiewicz / Wikimedia<p>Pterosaurs ruled the skies during the Mesozoic Era (252 million to 66 million years ago), the same period that dinosaurs roamed the planet, and they reached hard-to-believe dimensions. <a href="https://www.wired.com/2013/11/absurd-creature-of-the-week-quetz/" target="_blank" rel="noopener noreferrer">Quetzalcoatlus</a> stood 16 feet tall and had a colossal 33-foot wingspan.</p>
Birds Get Their Opportunity<p>Birds originated while dinosaurs and pterosaurs were still roaming the planet. But when an <a href="https://www.smithsonianmag.com/science-nature/dinosaur-killing-asteroid-impact-chicxulub-crater-timeline-destruction-180973075/" target="_blank">asteroid struck the Yucatan Peninsula 66 million years ago</a>, dinosaurs and pterosaurs both perished. Some <a href="https://www.audubon.org/news/how-birds-survived-asteroid-impact-wiped-out-dinosaurs" target="_blank">select birds survived</a>, though. These survivors diversified into the thousands of bird species alive today. Pelagornithids evolved in the period right after dinosaur and pterosaur extinction, when competition for food was lessened.</p><p><a href="https://doi.org/10.1002/spp2.1284" target="_blank">The earliest pelagornithid remains</a>, recovered from 62-million-year-old sediments in New Zealand, were about the size of modern gulls. The first giant pelagornithids, the ones in our study, <a href="https://doi.org/10.1038/s41598-020-75248-6" target="_blank" rel="noopener noreferrer">took flight over Antarctica about 10 million years later</a>, in a period called the Eocene Epoch (56 million to 33.9 million years ago). In addition to these specimens, fossilized remains from other pelagornithids have been found on every continent.</p><p>Pelagornithids lasted for about 60 million years before going extinct just before the Pleistocene Epoch (2.5 million to 11,700 years ago). No one knows exactly why, though, because few fossil records have been recovered from the period at the end of their reign. Some paleontologists cite <a href="https://doi.org/10.1080/02724634.2011.562268" target="_blank" rel="noopener noreferrer">climate change as a possible factor</a>.</p>
Piecing it Together<p>The fossils we studied are fragments of whole bones collected by paleontologists from the University of California at Riverside in the 1980s. In 2003, the specimens were transferred to Berkeley, where they now reside in the <a href="https://ucmp.berkeley.edu/" target="_blank" rel="noopener noreferrer">University of California Museum of Paleontology</a>.</p><p>There isn't enough material from Antarctica to rebuild an entire skeleton, but by comparing the fossil fragments with similar elements from more complete individuals, we were able to assess their size.</p>
In life, the pelagornithid would have had numerous 'teeth,' making it a formidable predator. Peter Kloess, CC BY-NC-SA
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