Environmental Law in the Supreme Court: Highlights from the Blackmum Papers

71 Pages Posted: 25 Aug 2005

See all articles by Robert V. Percival

Robert V. Percival

University of Maryland - Francis King Carey School of Law


The papers of the late Justice Harry A. Blackmun provide a remarkably rich archive that documents how the Court, for nearly a quarter century, handled environmental cases during a period crucial to the development of environmental law. This Article reviews highlights of what the Blackmun papers reveal about the U.S. Supreme Court's handling of environmental cases during Justice Blackmun's service on the Court from 1970 to 1994. The Article first examines what new light the Blackmun papers shed on some of the principal findings of the author's October 1993 article Environmental Law in the Supreme Court: Highlights from the Marshall Papers, 23 ELR 10606 (1993). It then analyzes what the Blackmun papers reveal about challenges to environmental regulation in three areas in which the Rehnquist Court has had great impact: federalism, regulatory takings, and environmental standing.

The Blackmun papers show the Justices struggling to understand the complex, new federal regulatory programs Congress established in the early 1970s to protect the environment. They show a Court whose Justices often express bewilderment, or even contempt, for the new laws and the regulatory programs they spawn, but who nonetheless try to ensure that the laws will be given a fair chance to accomplish their ends. They do so initially by granting substantial deference to the administrative agencies charged with implementing and enforcing the laws and by opening up the courts to lawsuits by the laws' intended beneficiaries.

The Blackmun papers illustrate the important role the Chief Justice can play in shaping the direction of the Court through his power to assign opinion writing responsibilities if he votes with the majority. They reveal that Chief Justice Burger often passed when initially voting on a case, which preserved his ability to vote in the majority and thus assign the opinion. Aside from the greater selectivity of the Justices in deciding how many cases to hear each year, perhaps the most striking change in the Court during the Blackmun years is the increasingly sharp ideological split among the Justices, which is reflected in material in the Blackmun papers. Review of the Blackmun papers indicates that even though the Justices often failed to fully grasp the intricate details of the environmental laws or the complex regulatory programs they spawned, the Court has continued to play a vital role in preserving law as a vehicle for environmental protection. When extreme interpretations were urged by opponents of regulation, moderate voices on the Court usually asserted themselves and kept the laws' basic infrastructure intact and the courthouse doors open to environmental interests.

Keywords: Supreme Court, Environment, Blackmum, Environmental Federalism, Regulatory Takings, Environmental Standing

Suggested Citation

Percival, Robert V., Environmental Law in the Supreme Court: Highlights from the Blackmum Papers. Environmental Law Reporter, Vol. 35, No. 10, October 2005, U of Maryland Legal Studies Research Paper No. 2005-45, Available at SSRN: https://ssrn.com/abstract=785785

Robert V. Percival (Contact Author)

University of Maryland - Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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