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Justice Stevens’ Abiding Environmental Legacy

By Richard Frank, The Daily Journal

As Justice John Paul Stevens' distinguished, 35-year career on the U.S. Supreme Court winds down, it's both appropriate and timely to consider his contributions to American environmental law. And those contributions are considerable indeed.

Justice Stevens' influence on the nation's environmental jurisprudence goes well beyond the fact that he has served on the Supreme Court longer than anyone in U.S. history save the justice he replaced: William O. Douglas. And it comes in spite of the fact that - unlike Justice Douglas - Justice Stevens' personal and professional history reveals no particular affinity for the great outdoors or environmental causes.
Nevertheless, a key (and largely overlooked) part of Justice Stevens' judicial legacy is the fact that he's responsible for many of the Court's most influential environmental decisions over the past several decades.

That wasn't always the case. Indeed, in his earliest opinions Justice Stevens charted a conservative course when it came to environmental issues. Largely forgotten, for example, is the fact that Stevens dissented from the Court's 1978 decision in Penn Central Transportation Company v. City of New York. In that case, the Court rejected a constitutional challenge to the city's historic landmarks preservation law. But Justice Stevens joined then-Associate Justice William Rehnquist's dissent in Penn Central, concluding that New York's designation of Grand Central Terminal under the municipal landmarks law constituted a compensable "taking" of private property under the Fifth Amendment to the U.S. Constitution.

Nevertheless, a comprehensive review of Justice Stevens' voting record on the Court demonstrates that, far more often, he charted a progressive course concerning the environmental cases that came before the High Court. And his pro-environment philosophy became far more consistent and deeply ingrained the longer he served as a Supreme Court justice.

Here, in chronological order, are perhaps the five most influential environmental law decisions authored by Justice Stevens over his extended Supreme Court career:

In Chevron U.S.A. v. Natural Resources Defense Council, Justice Stevens led a unanimous Supreme Court in declaring the USEPA's "bubble policy" a valid means of implementing the federal Clean Air Act. That policy represented one of the first applications of so-called "market-based" systems of environmental regulation. Yet Stevens'1984 decision in Chevron is far more noteworthy as the precedent establishing a now-foundational principle of administrative law: that executive branch agencies' interpretations of less-than-clear congressional statutes they are charged with implementing are entitled to substantial deference by reviewing courts-the so-called "Chevron rule." Justice Stevens' Chevron opinion has proven to be one of the most frequently-cited in U.S. Supreme Court history.

Justice Stevens interpreted the Endangered Species Act expansively in his 1995 decision in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon. There he concluded on behalf of the Court that "harm" proscribed under the ESA includes the damaging of natural habitats upon which listed species depend for their survival.

In Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency, Justice Stevens declared on behalf of the Court in 2002 that the Tahoe Regional Planning Agency's moratorium on development in the Lake Tahoe Basin while TRPA formulated a regional plan governing future growth passed muster under the Fifth Amendment's Takings Clause. In rejecting the landowners' regulatory takings claims, Justice Stevens' opinion reiterated the importance in takings jurisprudence of a fact-specific, multifactor analysis of an environmental regulation's effect on private property interests - a somewhat ironic ruling, given that this constitutional analysis was first articulated in the very Penn Central decision from which Stevens had dissented a quarter century before.

Justice Stevens' most controversial environmental ruling doubtless was his majority opinion in the 2005 case, Kelo v. City of New London. In Kelo, he concluded that a municipality's exercise of its eminent domain powers to condemn private property, which was ultimately conveyed to another private party in order to facilitate a community redevelopment project constituted a permissible "public use" under the Fifth Amendment's Takings Clause. Four justices, led by Justice Sandra Day O'Connor, vigorously dissented, arguing that such practices constituted an abuse of government's condemnation authority and trampled private property rights. O'Connor's views ultimately prevailed in the court of public opinion, with most states (including California) changing their eminent domain laws to preclude the type of eminent domain efforts legitimized in Kelo. (In a speech he gave shortly after his controversial Kelo opinion, Justice Stevens stated that while he would support similar reforms were he a state legislator, he considered himself bound by the Supreme Court's longstanding eminent domain/public use precedents in deciding the Kelo case.)

Finally, Justice Stevens authored the Court's decision in the landmark climate change case, Massachusetts v. USEPA in 2007. Writing for a bare five-member majority, Justice Stevens held that the state plaintiffs bringing the action had Article III standing to challenge the federal government's failure to regulate greenhouse gases under the Clean Air Act; that the USEPA does in fact have the legal authority to do so; and that the agency had abused its discretion in failed to regulate greenhouse gases under the Act based on the reasons advanced for refusing to do so. But perhaps the single most significant aspect of Stevens' opinion in Massachusetts is his unequivocal statement in the decision's first paragraph that climate change is a clear and present environmental danger facing our nation and planet. That declaration has had policy and political ramifications extending far beyond environmental law and lawyers.

Environmental advocates are understandably glum over Justice John Paul Stevens' imminent departure from the Supreme Court. Especially over the past two decades, Stevens has represented the most reliable environmental vote among the justices. In retrospect, and more importantly, Justice Stevens may well go down in legal history as the most influential jurist of the modern environmental law era.

Richard Frank is Executive Director of the Center for Law, Energy & the Environment at the U.C. Berkeley School of Law.
5/18/2010