Environmental News Policy

The Anti-Regulatory and Anti-Precedent Agenda of the Supreme Court

The columns and arch of the supreme court building in shadow and light.

Critics say that an anti-regulation agenda drives the United States Supreme Court. Looking at their June 30, 2022 decision in West Virginia v. Environmental Protection Agency, the critics’ assessment might be correct. The SC’s ruling, in that case, limits the EPA’s ability to regulate the energy sector to measures such as greenhouse gas emissions controls at power plants. 

In June 2022, the Supreme Court issued rulings revealing the court’s anti-precedent leanings:

  • Dobbs v. Jackson Women’s Health Organization–The SC ruled on June 24, 2022, that the constitution does not provide a right to abortion, overturning Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. 
  • Oklahoma v. Castro-Huerta–On June 29, 2022, the SC ruled, after ruling that much of the state of Oklahoma falls within indigenous reservations, that state authorities can prosecute non-natives who commit crimes against natives on reservations. 
  • New York State Rifle & Pistol Association v. Bruen–The SC ruled that states which have strict laws on carrying a concealed gun in public violate the 14th amendment because it prevents law-abiding citizens from exercising their second amendment rights. 

Two rulings in May and June show that the Supreme Court looks at the separation of church and state differently:

  • Kennedy v. Bremerton School District–The SC ruled on June 27, 2022, that a public high school football coach had the constitutional right to pray at the 50-yard line after a game. 
  • Carson v. Makin–The SC ruled on June 22, 2022, that a program in Maine excluding religious schools from a state tuition program violates first amendment rights. 

Two Regulatory Cases Before the Supreme Court

In October, the SCOTUS heard arguments for two regulatory cases. One involves environmental regulations, and the other involves animal welfare regulations.

Sackett v. EPA

On October 3, 2022, the S.C. heard oral arguments for a case called Sackett v. EPA. Michael and Chantell Sackett, Idaho landowners backed by the Pacific Legal Foundation, an anti-environmental legal group, brought the case in 2007 against the EPA. They bought land that was subject to the Clean Water Act protections. Their land included wetlands near Priest Lake, one of the largest lakes in Idaho, and required a wetlands permit before it could be developed. The Sacketts sued instead of obtaining a permit.

This is the second time they have appeared before the SCOTUS. The first occurred in 2012 when the SCOTUS ruled they have the right to bring a court challenge against an EPA compliance order. Earthjustice filed an amicus brief to the Supreme Court on behalf of 18 indigenous tribes who rely on the local waterways that flow through their lands. An SC decision is likely in early 2023. Earthjustice calls the case a “major attack on clean water.”

National Pork Producers Council v. Ross

The SC heard arguments in the National Pork Producers Council v. Ross on October 11, 2022. The case concerns California’s Proposition 12 law, which voters passed in 2018. The proposition imposes regulations on nationwide pork producers to establish 24 square feet of usable floor space per female pig (sow). Industry groups filed a lawsuit to overturn the proposition. They argued that it is unconstitutional under a “dormant Commerce Clause” doctrine that limits states’ ability to pass laws that will affect interstate commerce. 

Proposition 12 banned gestation crates which keep pregnant sows in an area of about seven feet by two feet. That is barely larger than the sow’s body. The pregnant sow is kept in the gestation crate for her entire pregnancy. 

A federal district court dismissed the lawsuit, concluding it did not plausibly allege any constitutional violation. The U.S. Court of Appeals for the Ninth Circuit affirmed that decision, and the Supreme Court agreed to hear the case. The National Pork Producers Council released a statement that said, “We appreciate the support of the Biden Administration and look forward to the Court’s decision.”


Photo by Ian Hutchinson on Unsplash

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