Not at All: Environmental Sustainability in the Supreme Court

Abstract

The principle of “sustainability” is soon to mark its 40th anniversary. It is a concept that has experienced both evolution and stasis. It has shaken the legal foundation, often engaged, recited, and even revered by policymakers, lawmakers, and academics worldwide. This essay assesses the extent to which sustainability registers on the scales of the United States Supreme Court, particularly during the tenure of Chief Justice John Roberts.

None of the environmental cases decided thus far during the tenure of Chief Justice Roberts engage sustainability. The word “sustainability” does not appear to exist before the Court. It does not appear in any majority, concurring, or dissenting opinion. While the Court seems to be agnostic about the idea of sustainability as a governing norm, strong astringent reveals that with some counterexamples the extent to which decisions before the Roberts’ Court regarding biodiversity, land use, air pollutant emissions, and cleanup standards implicate sustainability, they do so negatively, as discussed below. The article concludes that factors having little or nothing to do with sustainability per se are at the heart of these results. Yet unless and until parties amass the courage of their conviction and infuse “sustainability” into litigative lexicon and strategy, sustainability will continue to matter to the U.S. Supreme Court not at all.

Keywords: sustainability, environmental law, supreme court

JEL Classification: K32