1

Justice Kennedy Justice Kennedy and the and the

EnvironmentEnvironmentSearching for Nexus?Searching for Nexus?

A Contextualist, Not a A Contextualist, Not a Categoricalist?Categoricalist?

A 21A 21stst Century Holmesian? Century Holmesian?

2

The Protagonist The Protagonist (Antagonist?)(Antagonist?)

3

Prelude to Kennedy’s Prelude to Kennedy’s Greatest Hits (vol. I)Greatest Hits (vol. I)

Just 4 9Just 4 9thth Cir opinions in 12 years Cir opinions in 12 years First 4 years on S.Ct. = no First 4 years on S.Ct. = no

environmental opinions (joined 13 environmental opinions (joined 13 majority opinions; joined one majority opinions; joined one dissent)dissent)

Only one written dissent in an Only one written dissent in an environmental caseenvironmental case

4

Two preliminary notesTwo preliminary notes Pa. v. Union Gas Pa. v. Union Gas (1989) (Congress could (1989) (Congress could

and did waive state sovereign immunity in and did waive state sovereign immunity in the 1986 CERCLA A’s)—Kennedy joined a 5-the 1986 CERCLA A’s)—Kennedy joined a 5-4 dissent (maintaining that Congress had 4 dissent (maintaining that Congress had neither the intent nor the constitutional neither the intent nor the constitutional authority to waive state sovereign authority to waive state sovereign immunity)immunity) Accurate foreshawdowing of Rehnquist Court’s Accurate foreshawdowing of Rehnquist Court’s

erection of the 11erection of the 11thth A as a shield for state A as a shield for state liability in federal court liability in federal court

Lucas v. S.Car. Coastal Council Lucas v. S.Car. Coastal Council (1992) (1992) (regulation producing a complete econ. (regulation producing a complete econ. wipeout is a categorical taking)wipeout is a categorical taking) Early indication that Kennedy would not be a Early indication that Kennedy would not be a

Scalian disciple on property rights and takingsScalian disciple on property rights and takings

5

I. Standing & Ripeness I. Standing & Ripeness CasesCases

Lujan v. Defenders of Wildlife Lujan v. Defenders of Wildlife (1992) (1992) (environmentalists lacked standing to (environmentalists lacked standing to challenge a DOI exemption of federal challenge a DOI exemption of federal agencies acting in foreign countries from agencies acting in foreign countries from ESA consultation)ESA consultation) Kennedy concurred, objecting to Scalia’s Kennedy concurred, objecting to Scalia’s

rejection of standing for those interested in rejection of standing for those interested in studying or seeing endangered speciesstudying or seeing endangered species

Would entertain theories of “animal or Would entertain theories of “animal or vocational nexus” in a different contextvocational nexus” in a different context

Also unwilling to rule out that Congress lacked Also unwilling to rule out that Congress lacked authority to identify injuries and chains of authority to identify injuries and chains of causation for standing purposescausation for standing purposes

6

Standing and Ripeness, Standing and Ripeness, cont’d.cont’d.

Friends of the Earth v. Laidlaw Friends of the Earth v. Laidlaw (2000) (2000) (envtl’ists have standing to seek civil (envtl’ists have standing to seek civil penalties, since they redress injuries via penalties, since they redress injuries via deterrent effect)deterrent effect)

Ginsberg, for 7-2 S.Ct.Ginsberg, for 7-2 S.Ct. Kennedy concurrence: “Difficult and Kennedy concurrence: “Difficult and

fundamental questions” exist when Congress fundamental questions” exist when Congress authorizes “exactions of public fines by authorizes “exactions of public fines by private litigants;” may impermissibly private litigants;” may impermissibly delegate Art. II Executive authoritydelegate Art. II Executive authority

7

Standing and Ripeness, Standing and Ripeness, cont’d.cont’d.

Palazzolo v. Rhode Island Palazzolo v. Rhode Island (2001) (2001) (preexisting wetland restrictions didn’t bar (preexisting wetland restrictions didn’t bar suit; rejection of LO’s applications made it suit; rejection of LO’s applications made it appear that state was unlikely to ever appear that state was unlikely to ever approve)approve)

Kennedy wrote for a 5-member majorityKennedy wrote for a 5-member majority LO had standing; suit not barred by regs pre-LO had standing; suit not barred by regs pre-

dating LO’s acquisition (rejects categorical dating LO’s acquisition (rejects categorical “notice rule”)“notice rule”)

Case ripe; submission of more development Case ripe; submission of more development proposals would have been “futile,” due to proposals would have been “futile,” due to “unequivocal” nature of state regulations“unequivocal” nature of state regulations

8

Standing and Ripeness Standing and Ripeness cont’d.cont’d.

Kennedy—not an adherent of the common law Kennedy—not an adherent of the common law model—animal and vocational nexus possiblemodel—animal and vocational nexus possible

Congress can define injuries sufficient for Congress can define injuries sufficient for standing, but can’t interfere with Executive’s standing, but can’t interfere with Executive’s Art II authorityArt II authority

Standing for takings claimants with notice of Standing for takings claimants with notice of regsregs

Repeated denials of development = ripenessRepeated denials of development = ripeness Seems opposed to establishing high barriers for Seems opposed to establishing high barriers for

standing and ripeness for LO’s alleging takingsstanding and ripeness for LO’s alleging takings Give LO’s their day in courtGive LO’s their day in court

9

II. States-Rights II. States-Rights FederalismFederalism

Gade v. Nat’l Solid Waste Mgmt. Ass’n Gade v. Nat’l Solid Waste Mgmt. Ass’n (1992) (1992) (preempting 2 Illinois hazardous waste worker-(preempting 2 Illinois hazardous waste worker-training statutes because they conflicted with training statutes because they conflicted with OHSA)OHSA)

O’Connor for 5-member majorityO’Connor for 5-member majority Kennedy concurred, but disagreed w/ O’Connor’s Kennedy concurred, but disagreed w/ O’Connor’s

conflict preemption—Kennedy would have found conflict preemption—Kennedy would have found express preemption in the OSHA statuteexpress preemption in the OSHA statute No need for actual conflict for preemptionNo need for actual conflict for preemption Kennedy apparently viewed avoiding dual regulation Kennedy apparently viewed avoiding dual regulation

as more important than protecting state police powers as more important than protecting state police powers

10

States-Rights States-Rights Federalism, cont’d.Federalism, cont’d.

U.S. v. Locke U.S. v. Locke (2000) (preempting Washington (2000) (preempting Washington state statute regulating oil tankers)state statute regulating oil tankers)

Kennedy, for a unanimous S.Ct.Kennedy, for a unanimous S.Ct. In federal Oil Pollution Act of 1990, Congress created In federal Oil Pollution Act of 1990, Congress created

only a limited exception to the broad federal only a limited exception to the broad federal preemption of maritime law enacted in PWSA of 1972preemption of maritime law enacted in PWSA of 1972

1972 law’s objective = to provide uniformity of 1972 law’s objective = to provide uniformity of regulationregulation

Kennedy made no attempt to assess sufficiency Kennedy made no attempt to assess sufficiency of envtl protection; focused on “political of envtl protection; focused on “political responsibility”responsibility”

11

States-Rights States-Rights Federalism cont’d. Federalism cont’d.

Carbone v. Town of Clarkstown Carbone v. Town of Clarkstown (1994) (1(1994) (1stst envtl. op) (ordinance subsidizing local envtl. op) (ordinance subsidizing local facility’s collection of recyclable material facility’s collection of recyclable material by establishing a local monopoly violated by establishing a local monopoly violated Commerce Clause)Commerce Clause)

Kennedy wrote for a 6-3 majorityKennedy wrote for a 6-3 majority Burden on interstate commerce justified if = Burden on interstate commerce justified if =

the only method available to advance local the only method available to advance local interestinterest

But here, there were alternative ways of But here, there were alternative ways of financing the town’s transfer stationfinancing the town’s transfer station

12

States-Rights Federalism States-Rights Federalism cont’d.cont’d.

Idaho v. Coeur d’Alene TribeIdaho v. Coeur d’Alene Tribe (1997) (2d envtl op.) (1997) (2d envtl op.) (state immune from federal suit claiming that, under (state immune from federal suit claiming that, under an 1873 Executive Order, the tribe owned lakebed)an 1873 Executive Order, the tribe owned lakebed)

Kennedy wrote for a 5-4 CourtKennedy wrote for a 5-4 Court Ex Parte YoungEx Parte Young exception to 11th A state immunity = a exception to 11th A state immunity = a

function of case-by-case factual evaluationfunction of case-by-case factual evaluation Since tribe’s suit was the functional equivalent of a quiet Since tribe’s suit was the functional equivalent of a quiet

title action, it implicated “special sovereignty interests”–title action, it implicated “special sovereignty interests”–would prevent state from governing lands held in trust for would prevent state from governing lands held in trust for the public the public

Case revealed a split between Kennedy & O’Connor Case revealed a split between Kennedy & O’Connor

13

States-Rights Federalism States-Rights Federalism cont’d.cont’d.

Amoco Production Co. v. U.S. Amoco Production Co. v. U.S. (1999) (1999) (rejecting Southern Ute’s Tribe’s claim to (rejecting Southern Ute’s Tribe’s claim to coalbed methane)coalbed methane)

Kennedy wrote for an 8-1 Court (Ginsberg, d.)Kennedy wrote for an 8-1 Court (Ginsberg, d.) Interpreted 1909 + ’10 statutes according to Interpreted 1909 + ’10 statutes according to

“common conception” of meaning of “coal” at the “common conception” of meaning of “coal” at the time (methane gas not = resource but a hazard)time (methane gas not = resource but a hazard)

Disregarded public land & Indian law canonsDisregarded public land & Indian law canons Unwilling to defer to gov’t, which conveyed the Unwilling to defer to gov’t, which conveyed the

coal rights (maybe due to K’s sense of retroactive coal rights (maybe due to K’s sense of retroactive liability)liability)

14

States-Rights States-Rights Federalism, cont’dFederalism, cont’d

States’ rights = an intense interest of Kennedy’sStates’ rights = an intense interest of Kennedy’s Yet he saw the Yet he saw the Carbone Carbone ordinance as protectionist, ordinance as protectionist,

while the dissent saw it as mgmt. of a local waste while the dissent saw it as mgmt. of a local waste problem—willing to strike down as overregulationproblem—willing to strike down as overregulation

Read state immunity broadly in Read state immunity broadly in Coeur d’Alene TribeCoeur d’Alene Tribe Ignored public land + Indian canons in Ignored public land + Indian canons in AmocoAmoco While Kennedy = more devoted to judicial balancing While Kennedy = more devoted to judicial balancing

+ state sov.+ state sov. than O’Connor than O’Connor (Coeur d’Alene),(Coeur d’Alene), but but more willing to preempt to avoid duplicative more willing to preempt to avoid duplicative regulation regulation (Gade, Locke)(Gade, Locke)

15

III. TakingsIII. Takings

Lucas v. S. Car. Coastal Council Lucas v. S. Car. Coastal Council (1992) (per (1992) (per Scalia, Constitution required LO compensation Scalia, Constitution required LO compensation for regs producing a complete loss in for regs producing a complete loss in economic value, subject to several exceptions)economic value, subject to several exceptions)

Kennedy concurred (in 6-3 result)Kennedy concurred (in 6-3 result) Disagreed with Scalia on the scope of exemptions Disagreed with Scalia on the scope of exemptions

(not limited to regs duplicating CL nuisance)(not limited to regs duplicating CL nuisance) Too narrow a confine for regs in a “complex and Too narrow a confine for regs in a “complex and

interdependent society;” must account for changed interdependent society;” must account for changed conditions, new ecological understandings, and conditions, new ecological understandings, and “fragile land[s]”“fragile land[s]”

16

Takings, cont’d.Takings, cont’d. Eastern Enterprises v. Apfel Eastern Enterprises v. Apfel (1998) (1998)

(invalidating, on a 5-4 vote, provisions of (invalidating, on a 5-4 vote, provisions of Coal Industry Retiree Benefit Act of 1992 Coal Industry Retiree Benefit Act of 1992 that required companies previously that required companies previously employing coal miners to pay some health employing coal miners to pay some health care retirement costs)care retirement costs)

Kennedy concurred with plurality Kennedy concurred with plurality (O’Connor)(O’Connor) But not a taking; injury too “unlike the act of But not a taking; injury too “unlike the act of

taking specific property”taking specific property” Retroactive effect of statute violated subtantive Retroactive effect of statute violated subtantive

due process (forerunner of due process (forerunner of LingleLingle))

17

Takings, cont’d.Takings, cont’d. Monterrey v. Del Monte Dunes, Ltd.Monterrey v. Del Monte Dunes, Ltd. (1999) (1999)(okay for jury to decide takings issue; Dolan’s (okay for jury to decide takings issue; Dolan’s

“rough proportionality” inapplicable) “rough proportionality” inapplicable) Kennedy wrote for 5-member majority (3Kennedy wrote for 5-member majority (3rdrd

envtl. op.)envtl. op.) Jury not to evaluate reasonableness of Jury not to evaluate reasonableness of

regulations but to determine whether their regulations but to determine whether their application = takingapplication = taking

Federal 7Federal 7thth A right to jury trials limited to where A right to jury trials limited to where LO has no adequate remedy in state lawLO has no adequate remedy in state law

18

Takings, cont’d.Takings, cont’d. Palazzo v. Rhode Island Palazzo v. Rhode Island (2001) (standing (2001) (standing

for LO who had notice of restrictions + for LO who had notice of restrictions + case ripe due to repeated gov’tal denials; case ripe due to repeated gov’tal denials; but no categorical taking)but no categorical taking)

Kennedy, for 5-member majorityKennedy, for 5-member majority No economic wipeout, as upland portion of No economic wipeout, as upland portion of

the property retained “substantial” ec value the property retained “substantial” ec value (suitable for construction of a residence)(suitable for construction of a residence)

Endorsed Endorsed Penn Central Penn Central balancing, but uneasy balancing, but uneasy about the size of the property (parcel “as a about the size of the property (parcel “as a whole” = a difficult, persisting question”)whole” = a difficult, persisting question”)

19

Takings, cont’d.Takings, cont’d. Lingle v. ChevronLingle v. Chevron (2005) (upholding a Hawaiian (2005) (upholding a Hawaiian

statute imposing maximum rent that oil co’s could statute imposing maximum rent that oil co’s could charge dealer lessees)charge dealer lessees)

O’Connor, for a unanimous S.Ct, reversing 9O’Connor, for a unanimous S.Ct, reversing 9thth Cir. Cir. Lower courts’ application of the “substantially advance” Lower courts’ application of the “substantially advance”

a legitimate state interest = impermissiblea legitimate state interest = impermissible Test = actually part of due process, not takings clauseTest = actually part of due process, not takings clause

Kennedy concurred, reiterating his Kennedy concurred, reiterating his Eastern Eastern Enterprises Enterprises conc, suggesting that conc, suggesting that arbitrary/irrational regs violate due processarbitrary/irrational regs violate due process

20

Takings, cont’d.Takings, cont’d.

Kelo v. New London Kelo v. New London (2005) (condemnations for (2005) (condemnations for economic development = a public use)economic development = a public use)

Stevens, for a 5-4 S.Ct.Stevens, for a 5-4 S.Ct. The City’s carefully considered economic development The City’s carefully considered economic development

plan warranted judicial deferenceplan warranted judicial deference The plan ensured no taking of property from one The plan ensured no taking of property from one

owner to another without public benefitowner to another without public benefit Kennedy cast deciding vote, concurrence called Kennedy cast deciding vote, concurrence called

for a “careful and extensive inquiry” of ec for a “careful and extensive inquiry” of ec development plansdevelopment plans 7-factor factual inquiry instead of plurality’s 7-factor factual inquiry instead of plurality’s

deferencedeference

21

Takings, cont’d.Takings, cont’d. Kennedy = a contextualist (concerned about Kennedy = a contextualist (concerned about

changed ecological understandings and “fragile changed ecological understandings and “fragile land[s]” in land[s]” in Lucas Lucas conc.)conc.)

Juries can decide whether property is taken Juries can decide whether property is taken (Del (Del Monte Dunes)—Monte Dunes)—a question of facta question of fact

LO notice of Hobbesian regs not a standing bar; LO notice of Hobbesian regs not a standing bar; repeated denials sufficient for ripeness repeated denials sufficient for ripeness (Palazzolo)(Palazzolo)

Federal courts to scrutinize rationality of local Federal courts to scrutinize rationality of local land use regs via substantive due process + 7-land use regs via substantive due process + 7-factor test for ec development condemnations factor test for ec development condemnations ((Eastern, Lingle, Kelo Eastern, Lingle, Kelo conc.conc.))

22

IV. Statutory IV. Statutory InterpretationInterpretation

Alaska Dept of Envtl Conservation v. EPAAlaska Dept of Envtl Conservation v. EPA (2004) (2004) (upholding EPA authority to overrule the state on (upholding EPA authority to overrule the state on the application of BACT under the Clean Air Act)—the application of BACT under the Clean Air Act)—K’s only written dissentK’s only written dissent

Ginsberg, for a 5-4 S.Ct.Ginsberg, for a 5-4 S.Ct. EPA’s interpretation of the statute = reasonable (record EPA’s interpretation of the statute = reasonable (record

showed state’s BACT much more polluting) showed state’s BACT much more polluting) Kennedy wrote for a 4-member dissent Kennedy wrote for a 4-member dissent

Majority gave improper deference to EPAMajority gave improper deference to EPA Cooperative federalism scheme can’t “consign states to Cooperative federalism scheme can’t “consign states to

ministerial tasks,” while reserving final authority to EPAministerial tasks,” while reserving final authority to EPA

23

Statutory Interpretation, Statutory Interpretation, cont’d.cont’d.

Rapanos v. U.S. Rapanos v. U.S. (striking down Corps of (striking down Corps of Engineer regs asserting federal jurisdiction Engineer regs asserting federal jurisdiction over wetlands lying near ditches/drains over wetlands lying near ditches/drains emptying into navigable waters)emptying into navigable waters)

S.Ct. split 4-1-4 S.Ct. split 4-1-4 Plurality (per Scalia, using a 1954 dictionary)Plurality (per Scalia, using a 1954 dictionary)

—need “permanent, standing, or continuously —need “permanent, standing, or continuously flowing” waterbodiesflowing” waterbodies

Kennedy’s conc.—federal jurisdiction where Kennedy’s conc.—federal jurisdiction where there is a “significant nexus” to navigable there is a “significant nexus” to navigable waterswaters

24

Statutory Interpretation, Statutory Interpretation, cont’d.cont’d.

States-rights federalism more telling States-rights federalism more telling to Kennedy than administrative to Kennedy than administrative deference or environmental deference or environmental protection (protection (Alaska DEC)Alaska DEC)

Clean Water Act jurisdiction extends Clean Water Act jurisdiction extends to waterbodies affecting other to waterbodies affecting other jurisdictional waters (nexus test)—jurisdictional waters (nexus test)—need judicial factual inquiryneed judicial factual inquiry

25

V. ConclusionV. Conclusion Kennedy has great faith in judicial ability to Kennedy has great faith in judicial ability to

undertake factual inquiries—context, not undertake factual inquiries—context, not categorization dominatescategorization dominates

Believes takings claimants ought to have their day in Believes takings claimants ought to have their day in court—supports liberalized standing and ripeness court—supports liberalized standing and ripeness rulesrules

Skeptical of broad doctrinal changes (anti-Scalian)– a Skeptical of broad doctrinal changes (anti-Scalian)– a doctrinal minimalistdoctrinal minimalist

Skeptical of governmental regulation--“Hobbesian” Skeptical of governmental regulation--“Hobbesian” Advocate of states’ rights but quick to preempt state Advocate of states’ rights but quick to preempt state

regreg Anti-regulatory sentiment stronger than states’ rights Anti-regulatory sentiment stronger than states’ rights

sentimentsentiment A professed property rights defender who A professed property rights defender who

nonetheless opposes increased categorical takings nonetheless opposes increased categorical takings

26

Conclusion—A 21Conclusion—A 21stst Century Century Holmesian?Holmesian?

A devotee of case-by-case balancingA devotee of case-by-case balancing A regulatory skepticA regulatory skeptic Relatively non-ideologicalRelatively non-ideological ““the life of the law is not logic, but the life of the law is not logic, but

experience”experience” A states-rights Holmesian?A states-rights Holmesian?