The Rise of Constitutional Alarmists on the Supreme Court and Its Portent for the Future of Environmental Law 85 Ohio St. L. J. ____ (forthcoming 2024)

Abstract

 The topic of this article is not a happy one. Until very recently, the Court’s environmental rulings during the past five decades reflected the views of its consistently conservative majority, but were nonetheless tempered by moderate conservative Justices who, bounded by pragmatic concerns, were contextually open to account for the environmental protection exigencies present in particular cases. In the past few years, however, that dynamic has significantly shifted as the Court’s majority has increasingly been captured by Justices whom I dub “constitutional alarmists” — motivated in their votes and reasoning by their shared perception that environmental laws peculiarly threaten no less than the constitutional foundations of how law should be made and applied.

The purpose of this article is to describe this disturbing development while placing it in historical perspective. To that end, the article is divided into three parts. Part I highlights the central reason why environmental lawmaking is so challenging for our lawmaking institutions, including for the Supreme Court. As described in Part I, the making and application of environmental protection laws systematically present the Court with difficult questions regarding the Constitution’s allocation of lawmaking authority both between branches and between levels of government and the Bill of Rights’ imposition of limits on laws that interfere with personal liberty and private property. Part II considers how the Court generally resolved these legal issues over five decades from roughly October Term 1970, the dawning of modern environmental law in the United States, through the close of October Term 2019, immediately before President Trump added his third Justice to the Court. It describes how and why there was some modicum of balance in the Court’s environmental rulings during those five decades, notwithstanding a persistent conservative majority. Finally, Part III considers the Court’s environmental rulings since the fall of 2020, when the Court became dominated by six Justices who, alarmed by the threats they perceive environmental lawmaking to present to the Constitution’s very foundation, are joining majority opinions that unravel environmental law’s past successes and erode its future promise.

Keywords: Environmental Law, U.S. Supreme Court, Constitutional Law, Administrative Law