1. 1 Justice Kennedy and the Environment Searching for Nexus? A Contextualist, Not a Categoricalist? A 21 st Century Holmesian?

2. 2 The Protagonist (Antagonist?)

3. 3 Prelude to Kennedy’s Greatest Hits (vol. I) Just 4 9 th Cir opinions in 12 years Just 4 9 th Cir opinions in 12 years First 4 years on S.Ct. = no environmental opinions (joined 13 majority opinions; joined one dissent) First 4 years on S.Ct. = no environmental opinions (joined 13 majority opinions; joined one dissent) Only one written dissent in an environmental case Only one written dissent in an environmental case

4. 4 Two preliminary notes Pa. v. Union Gas (1989) (Congress could and did waive state sovereign immunity in the 1986 CERCLA A’s)— Kennedy joined a 5-4 dissent (maintaining that Congress had neither the intent nor the constitutional authority to waive state sovereign immunity) Pa. v. Union Gas (1989) (Congress could and did waive state sovereign immunity in the 1986 CERCLA A’s)— Kennedy joined a 5-4 dissent (maintaining that Congress had neither the intent nor the constitutional authority to waive state sovereign immunity) Accurate foreshawdowing of Rehnquist Court’s erection of the 11 th A as a shield for state liability in federal court Accurate foreshawdowing of Rehnquist Court’s erection of the 11 th A as a shield for state liability in federal court Lucas v. S.Car. Coastal Council (1992) (regulation producing a complete econ. wipeout is a categorical taking) Lucas v. S.Car. Coastal Council (1992) (regulation producing a complete econ. wipeout is a categorical taking) Early indication that Kennedy would not be a Scalian disciple on property rights and takings Early indication that Kennedy would not be a Scalian disciple on property rights and takings

5. 5 I. Standing & Ripeness Cases Lujan v. Defenders of Wildlife (1992) (environmentalists lacked standing to challenge a DOI exemption of federal agencies acting in foreign countries from ESA consultation) Lujan v. Defenders of Wildlife (1992) (environmentalists lacked standing to challenge a DOI exemption of federal agencies acting in foreign countries from ESA consultation) Kennedy concurred, objecting to Scalia’s rejection of standing for those interested in studying or seeing endangered species Kennedy concurred, objecting to Scalia’s rejection of standing for those interested in studying or seeing endangered species Would entertain theories of “animal or vocational nexus” in a different context Would entertain theories of “animal or vocational nexus” in a different context Also unwilling to rule out that Congress lacked authority to identify injuries and chains of causation for standing purposes Also unwilling to rule out that Congress lacked authority to identify injuries and chains of causation for standing purposes

6. 6 Standing and Ripeness, cont’d. Friends of the Earth v. Laidlaw (2000) (envtl’ists have standing to seek civil penalties, since they redress injuries via deterrent effect) Friends of the Earth v. Laidlaw (2000) (envtl’ists have standing to seek civil penalties, since they redress injuries via deterrent effect) Ginsberg, for 7-2 S.Ct. Ginsberg, for 7-2 S.Ct. Kennedy concurrence: “Difficult and fundamental questions” exist when Congress authorizes “exactions of public fines by private litigants;” may impermissibly delegate Art. II Executive authority Kennedy concurrence: “Difficult and fundamental questions” exist when Congress authorizes “exactions of public fines by private litigants;” may impermissibly delegate Art. II Executive authority

7. 7 Standing and Ripeness, cont’d. Palazzolo v. Rhode Island (2001) (preexisting wetland restrictions didn’t bar suit; rejection of LO’s applications made it appear that state was unlikely to ever approve) Palazzolo v. Rhode Island (2001) (preexisting wetland restrictions didn’t bar suit; rejection of LO’s applications made it appear that state was unlikely to ever approve) Kennedy wrote for a 5-member majority Kennedy wrote for a 5-member majority LO had standing; suit not barred by regs pre-dating LO’s acquisition (rejects categorical “notice rule”) LO had standing; suit not barred by regs pre-dating LO’s acquisition (rejects categorical “notice rule”) Case ripe; submission of more development proposals would have been “futile,” due to “unequivocal” nature of state regulations Case ripe; submission of more development proposals would have been “futile,” due to “unequivocal” nature of state regulations

8. 8 Standing and Ripeness cont’d. Kennedy—not an adherent of the common law model—animal and vocational nexus possible Kennedy—not an adherent of the common law model—animal and vocational nexus possible Congress can define injuries sufficient for standing, but can’t interfere with Executive’s Art II authority Congress can define injuries sufficient for standing, but can’t interfere with Executive’s Art II authority Standing for takings claimants with notice of regs Standing for takings claimants with notice of regs Repeated denials of development = ripeness Repeated denials of development = ripeness Seems opposed to establishing high barriers for standing and ripeness for LO’s alleging takings Seems opposed to establishing high barriers for standing and ripeness for LO’s alleging takings Give LO’s their day in court Give LO’s their day in court

9. 9 II. States-Rights Federalism Gade v. Nat’l Solid Waste Mgmt. Ass’n (1992) (preempting 2 Illinois hazardous waste worker-training statutes because they conflicted with OHSA) Gade v. Nat’l Solid Waste Mgmt. Ass’n (1992) (preempting 2 Illinois hazardous waste worker-training statutes because they conflicted with OHSA) O’Connor for 5-member majority O’Connor for 5-member majority Kennedy concurred, but disagreed w/ O’Connor’s conflict preemption—Kennedy would have found express preemption in the OSHA statute Kennedy concurred, but disagreed w/ O’Connor’s conflict preemption—Kennedy would have found express preemption in the OSHA statute No need for actual conflict for preemption No need for actual conflict for preemption Kennedy apparently viewed avoiding dual regulation as more important than protecting state police powers Kennedy apparently viewed avoiding dual regulation as more important than protecting state police powers

10. 10 States-Rights Federalism, cont’d. U.S. v. Locke (2000) (preempting Washington state statute regulating oil tankers) U.S. v. Locke (2000) (preempting Washington 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 only a limited exception to the broad federal preemption of maritime law enacted in PWSA of 1972 In federal Oil Pollution Act of 1990, Congress created only a limited exception to the broad federal preemption of maritime law enacted in PWSA of 1972 1972 law’s objective = to provide uniformity of regulation 1972 law’s objective = to provide uniformity of regulation Kennedy made no attempt to assess sufficiency of envtl protection; focused on “political responsibility” Kennedy made no attempt to assess sufficiency of envtl protection; focused on “political responsibility”

11. 11 States-Rights Federalism cont’d. States-Rights Federalism cont’d. Carbone v. Town of Clarkstown (1994) (1 st envtl. op) (ordinance subsidizing local facility’s collection of recyclable material by establishing a local monopoly violated Commerce Clause) Carbone v. Town of Clarkstown (1994) (1 st envtl. op) (ordinance subsidizing local facility’s collection of recyclable material by establishing a local monopoly violated Commerce Clause) Kennedy wrote for a 6-3 majority Kennedy wrote for a 6-3 majority Burden on interstate commerce justified if = the only method available to advance local interest Burden on interstate commerce justified if = the only method available to advance local interest But here, there were alternative ways of financing the town’s transfer station But here, there were alternative ways of financing the town’s transfer station

12. 12 States-Rights Federalism cont’d. Idaho v. Coeur d’Alene Tribe (1997) (2d envtl op.) (state immune from federal suit claiming that, under an 1873 Executive Order, the tribe owned lakebed) Idaho v. Coeur d’Alene Tribe (1997) (2d envtl op.) (state immune from federal suit claiming that, under an 1873 Executive Order, the tribe owned lakebed) Kennedy wrote for a 5-4 Court Kennedy wrote for a 5-4 Court Ex Parte Young exception to 11th A state immunity = a function of case-by-case factual evaluation Ex Parte Young exception to 11th A state immunity = a function of case-by-case factual evaluation Since tribe’s suit was the functional equivalent of a quiet title action, it implicated “special sovereignty interests”–would prevent state from governing lands held in trust for the public Since tribe’s suit was the functional equivalent of a quiet title action, it implicated “special sovereignty interests”–would prevent state from governing lands held in trust for the public Case revealed a split between Kennedy & O’Connor Case revealed a split between Kennedy & O’Connor

13. 13 States-Rights Federalism cont’d. Amoco Production Co. v. U.S. (1999) (rejecting Southern Ute’s Tribe’s claim to coalbed methane) Amoco Production Co. v. U.S. (1999) (rejecting Southern Ute’s Tribe’s claim to 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 “common conception” of meaning of “coal” at the time (methane gas not = resource but a hazard) Interpreted 1909 + ’10 statutes according to “common conception” of meaning of “coal” at the time (methane gas not = resource but a hazard) Disregarded public land & Indian law canons Disregarded public land & Indian law canons Unwilling to defer to gov’t, which conveyed the coal rights (maybe due to K’s sense of retroactive liability) Unwilling to defer to gov’t, which conveyed the coal rights (maybe due to K’s sense of retroactive liability)

14. 14 States-Rights Federalism, cont’d States’ rights = an intense interest of Kennedy’s States’ rights = an intense interest of Kennedy’s Yet he saw the Carbone ordinance as protectionist, while the dissent saw it as mgmt. of a local waste problem— willing to strike down as overregulation Yet he saw the Carbone ordinance as protectionist, while the dissent saw it as mgmt. of a local waste problem— willing to strike down as overregulation Read state immunity broadly in Coeur d’Alene Tribe Read state immunity broadly in Coeur d’Alene Tribe Ignored public land + Indian canons in Amoco Ignored public land + Indian canons in Amoco While Kennedy = more devoted to judicial balancing + state sov. than O’Connor (Coeur d’Alene), but more willing to preempt to avoid duplicative regulation (Gade, Locke) While Kennedy = more devoted to judicial balancing + state sov. than O’Connor (Coeur d’Alene), but more willing to preempt to avoid duplicative regulation (Gade, Locke)

15. 15 III. Takings Lucas v. S. Car. Coastal Council (1992) (per Scalia, Constitution required LO compensation for regs producing a complete loss in economic value, subject to several exceptions) Lucas v. S. Car. Coastal Council (1992) (per Scalia, Constitution required LO compensation for regs producing a complete loss in 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 (not limited to regs duplicating CL nuisance) Disagreed with Scalia on the scope of exemptions (not limited to regs duplicating CL nuisance) Too narrow a confine for regs in a “complex and interdependent society;” must account for changed conditions, new ecological understandings, and “fragile land[s]” Too narrow a confine for regs in a “complex and interdependent society;” must account for changed conditions, new ecological understandings, and “fragile land[s]”

16. 16 Takings, cont’d. Eastern Enterprises v. Apfel (1998) (invalidating, on a 5-4 vote, provisions of Coal Industry Retiree Benefit Act of 1992 that required companies previously employing coal miners to pay some health care retirement costs) Eastern Enterprises v. Apfel (1998) (invalidating, on a 5-4 vote, provisions of Coal Industry Retiree Benefit Act of 1992 that required companies previously employing coal miners to pay some health care retirement costs) Kennedy concurred with plurality (O’Connor) Kennedy concurred with plurality (O’Connor) But not a taking; injury too “unlike the act of taking specific property” But not a taking; injury too “unlike the act of taking specific property” Retroactive effect of statute violated subtantive due process (forerunner of Lingle) Retroactive effect of statute violated subtantive due process (forerunner of Lingle)

17. 17 Takings, cont’d. Monterrey v. Del Monte Dunes, Ltd. (1999) Monterrey v. Del Monte Dunes, Ltd. (1999) (okay for jury to decide takings issue; Dolan’s “rough proportionality” inapplicable) Kennedy wrote for 5-member majority (3 rd envtl. op.) Kennedy wrote for 5-member majority (3 rd envtl. op.) Jury not to evaluate reasonableness of regulations but to determine whether their application = taking Jury not to evaluate reasonableness of regulations but to determine whether their application = taking Federal 7 th A right to jury trials limited to where LO has no adequate remedy in state law Federal 7 th A right to jury trials limited to where LO has no adequate remedy in state law

18. 18 Takings, cont’d. Palazzo v. Rhode Island (2001) (standing for LO who had notice of restrictions + case ripe due to repeated gov’tal denials; but no categorical taking) Palazzo v. Rhode Island (2001) (standing for LO who had notice of restrictions + case ripe due to repeated gov’tal denials; but no categorical taking) Kennedy, for 5-member majority Kennedy, for 5-member majority No economic wipeout, as upland portion of the property retained “substantial” ec value (suitable for construction of a residence) No economic wipeout, as upland portion of the property retained “substantial” ec value (suitable for construction of a residence) Endorsed Penn Central balancing, but uneasy about the size of the property (parcel “as a whole” = a difficult, persisting question”) Endorsed Penn Central balancing, but uneasy about the size of the property (parcel “as a whole” = a difficult, persisting question”)

19. 19 Takings, cont’d. Lingle v. Chevron (2005) (upholding a Hawaiian statute imposing maximum rent that oil co’s could charge dealer lessees) Lingle v. Chevron (2005) (upholding a Hawaiian statute imposing maximum rent that oil co’s could charge dealer lessees) O’Connor, for a unanimous S.Ct, reversing 9 th Cir. O’Connor, for a unanimous S.Ct, reversing 9 th Cir. Lower courts’ application of the “substantially advance” a legitimate state interest = impermissible Lower courts’ application of the “substantially advance” a legitimate state interest = impermissible Test = actually part of due process, not takings clause Test = actually part of due process, not takings clause Kennedy concurred, reiterating his Eastern Enterprises conc, suggesting that arbitrary/irrational regs violate due process Kennedy concurred, reiterating his Eastern Enterprises conc, suggesting that arbitrary/irrational regs violate due process

20. 20 Takings, cont’d. Kelo v. New London (2005) (condemnations for economic development = a public use) Kelo v. New London (2005) (condemnations for 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 plan warranted judicial deference The City’s carefully considered economic development plan warranted judicial deference The plan ensured no taking of property from one owner to another without public benefit The plan ensured no taking of property from one owner to another without public benefit Kennedy cast deciding vote, concurrence called for a “careful and extensive inquiry” of ec development plans Kennedy cast deciding vote, concurrence called for a “careful and extensive inquiry” of ec development plans 7-factor factual inquiry instead of plurality’s deference 7-factor factual inquiry instead of plurality’s deference

21. 21 Takings, cont’d. Kennedy = a contextualist (concerned about changed ecological understandings and “fragile land[s]” in Lucas conc.) Kennedy = a contextualist (concerned about changed ecological understandings and “fragile land[s]” in Lucas conc.) Juries can decide whether property is taken (Del Monte Dunes)—a question of fact Juries can decide whether property is taken (Del Monte Dunes)—a question of fact LO notice of Hobbesian regs not a standing bar; repeated denials sufficient for ripeness (Palazzolo) LO notice of Hobbesian regs not a standing bar; repeated denials sufficient for ripeness (Palazzolo) Federal courts to scrutinize rationality of local land use regs via substantive due process + 7-factor test for ec development condemnations (Eastern, Lingle, Kelo conc.) Federal courts to scrutinize rationality of local land use regs via substantive due process + 7-factor test for ec development condemnations (Eastern, Lingle, Kelo conc.)

22. 22 IV. Statutory Interpretation Alaska Dept of Envtl Conservation v. EPA (2004) (upholding EPA authority to overrule the state on the application of BACT under the Clean Air Act)—K’s only written dissent Alaska Dept of Envtl Conservation v. EPA (2004) (upholding EPA authority to overrule the state on the application of BACT under the Clean Air Act)—K’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 showed state’s BACT much more polluting) EPA’s interpretation of the statute = reasonable (record 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 EPA Majority gave improper deference to EPA Cooperative federalism scheme can’t “consign states to ministerial tasks,” while reserving final authority to EPA Cooperative federalism scheme can’t “consign states to ministerial tasks,” while reserving final authority to EPA

23. 23 Statutory Interpretation, cont’d. Rapanos v. U.S. (striking down Corps of Engineer regs asserting federal jurisdiction over wetlands lying near ditches/drains emptying into navigable waters) Rapanos v. U.S. (striking down Corps of Engineer regs asserting federal jurisdiction over wetlands lying near ditches/drains emptying into navigable waters) S.Ct. split 4-1-4 S.Ct. split 4-1-4 Plurality (per Scalia, using a 1954 dictionary)—need “permanent, standing, or continuously flowing” waterbodies Plurality (per Scalia, using a 1954 dictionary)—need “permanent, standing, or continuously flowing” waterbodies Kennedy’s conc.—federal jurisdiction where there is a “significant nexus” to navigable waters Kennedy’s conc.—federal jurisdiction where there is a “significant nexus” to navigable waters

24. 24 Statutory Interpretation, cont’d. States-rights federalism more telling to Kennedy than administrative deference or environmental protection (Alaska DEC) States-rights federalism more telling to Kennedy than administrative deference or environmental protection (Alaska DEC) Clean Water Act jurisdiction extends to waterbodies affecting other jurisdictional waters (nexus test)—need judicial factual inquiry Clean Water Act jurisdiction extends to waterbodies affecting other jurisdictional waters (nexus test)—need judicial factual inquiry

25. 25 V. Conclusion Kennedy has great faith in judicial ability to undertake factual inquiries—context, not categorization dominates Kennedy has great faith in judicial ability to undertake factual inquiries—context, not categorization dominates Believes takings claimants ought to have their day in court—supports liberalized standing and ripeness rules Believes takings claimants ought to have their day in court—supports liberalized standing and ripeness rules Skeptical of broad doctrinal changes (anti-Scalian)– a doctrinal minimalist Skeptical of broad doctrinal changes (anti-Scalian)– a doctrinal minimalist Skeptical of governmental regulation--“Hobbesian” Skeptical of governmental regulation--“Hobbesian” Advocate of states’ rights but quick to preempt state reg Advocate of states’ rights but quick to preempt state reg Anti-regulatory sentiment stronger than states’ rights sentiment Anti-regulatory sentiment stronger than states’ rights sentiment A professed property rights defender who nonetheless opposes increased categorical takings A professed property rights defender who nonetheless opposes increased categorical takings

26. 26 Conclusion—A 21 st Century Holmesian? A devotee of case-by-case balancing A devotee of case-by-case balancing A regulatory skeptic A regulatory skeptic Relatively non-ideological Relatively non-ideological “the life of the law is not logic, but experience” “the life of the law is not logic, but experience” A states-rights Holmesian? A states-rights Holmesian?