Since the Supreme Court ruled last week on the Affordable Care Act (ACA), there has been a stream of speculation that the ruling will deeply undermine future federal efforts to strengthen environmental regulation. I asked Michael Wara, an associate professor of law at Stanford University and one of the most thoughtful environmental law experts around, for his take:
In the wake of last week’s Supreme Court decision in National Federation of Independent Business et al. v. Sebilius (The ACA Decision) there has been lots of discussion among environmental law academics as to whether and how the decision might affect U.S. environmental protection. The consensus (with which I tend to agree) seems to be that (1) we don’t know – the court is quite hard to predict on the Commerce Clause and Necessary and Proper Clause – the two key constitutional provisions at the heart of the ACA Decision. (2) The ACA Decision will not likely serve as terribly helpful precedent for future lawsuits aimed at limiting the reach of federal environmental law (e.g. the Clean Water Act, the Endangered Species Act, the Clean Air Act). (3) However, the ACA Decision is significant in that there were five votes to limit congressional authority to regulate under the Commerce Clause (this is very rare – limited to this case and two other occasions since the New Deal) and seven to limit Congresses power under the Spending Clause.
In his opinion, Chief Justice Roberts relies on the rationale that Congress can’t force citizens to engage in economic activity in order to create a Commerce Clause hook. He sees the market to be regulated as the health insurance market rather than the healthcare market. But Roberts also takes pains to emphasize that this case is different than, e.g. Heart of Atlanta Motel (desegregating hotels) and any other fact pattern that the court has seen before (including all the environmental statutes I mention above). In particular, he sees no problem with regulating purely intrastate activity that has a substantial impact on interstate commerce (this is Wickard v Filburn, a case about a farmer growing wheat for home consumption or Gonzales v Raich, a case about medicinal pot). Chief Justice Roberts is at pains to limit the legal implications of his decision to the facts of this case as he views them, and to leave intact prior precedent that allows Congress to step in and regulate environmental harms of an intrastate nature or that are a product of intrastate activity.
Even though the holding in this case probably has limited significance for the big environmental laws, it is important in that a major piece of legislation, had it not been characterized as a tax, would have been struck down.
What happens when (someday) we pass climate legislation and (one can only hope) some large set of actors are forced by the legislation to participate in a market for emissions permits? Is that set of facts, where Congress creates a market from whole cloth via legislation analogous to the ACA Decision? I think not, but this case will make drafters more careful and arm potential plaintiffs with new causes of action.
Again, the consensus seems to be, one week in, that this case is not a bomb dropped into the middle of US environmental law. However, the Roberts Court has sent a strong signal of their willingness to look much harder at assertions of federal authority, if and when Congress passes important new legislation on a topic of significance.