Annual Supreme Court Review and Preview

• Date: 01 January 2024
• Author: Sharon Jacobs, Gerald Torres, and Robert Percival

Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. D I A L O G U E ANNUAL SUPREME COURT REVIEW AND PREVIEW SUMMAR Y The Supreme Court’s October Term 2022 had major implications for environmental law, including its most signif‌icant Clean Water Act decision ever. Upcoming cases in October Term 2023 have the potential to be just as impactful. On September 25, 2023, the Environmental Law Institute hosted a panel of experts who provided an overview of key rulings and major take-aways from the Court’s prior term, and discussed cases that have been granted review or are likely to be considered by the justices in the upcoming term. Below, we present a transcript of that discussion, which has been edited for style, clarity, and space considerations. Jay Austin (moderator) is a Senior Attorney at the Environmental Law Institute and Editor-in-Chief of the Environmental Law Reporter . Sharon Jacobs is a Professor of Law at Berkeley Law School. Gerald Torres is Professor of Environmental Justice at the Yale School of Environment and a Professor of Law at Yale Law School. Robert Percival is the Robert F. Stanton Professor of Law at the University of Maryland’s Carey School of Law. Jay Austin: It’s been a little over a year since the U.S. Supreme Court decided the West Virginia Clean Air Act (CAA) 1 “major questions” case. 2 It’s been only four months since it issued its most impactful Clean Water Act (CWA) 3 decision ever. 4 he beginning of the Court’s term is a week away, and there seems to be a lot more to come. Lately, I’ve found I have been unlearning environmental and administrative law faster than I can manage to learn it. So, to help me out today, we are bringing in three panelists who are leading experts in those ields. First, we have Sharon Jacobs, a professor at Berkeley Law School, where she teaches energy law, environmental law, and administrative law. Gerald Torres is a professor at the Yale School of Environment and Yale Law School. And Robert Percival is the Robert F. Stanton professor of law at the University of Maryland’s Carey School of Law, where he directs the Environmental Law Program. Bob also was a law clerk for Justice Byron White. I’ll ask each of our panelists to start by highlighting a decision or two from the Court’s past term. We’ll then 1. 42 U.S.C. §§7401-7671q, ELR Stat. CAA §§101-618. 2. West Virginia v. Environmental Prot. Agency, No. 20-1530, 52 ELR 20077 (U.S. June 30, 2022). 3. 33 U.S.C. §§1251-1387, ELR Stat. FWPCA §§101-607. 4. Sackett v. Environmental Prot. Agency, 143 S. Ct. 1322, 53 ELR 20083 (2023). have a panel discussion on the just-concluded term, with some focus on the Sackett wetlands decision and its larger implications. We’ll then preview the upcoming term and discuss things to come. Sharon, would you kick of our review with the National Pork Producers case 5 Sharon Jacobs: I would be delighted. I’m coming to you this morning from California, so it seems appropriate. National Pork Producers Council v. Ross was decided in May 2023. It’s a case about animal welfare and public health, but it’s also a case about the so-called dormant Commerce Clause—a doctrine that’s been used to limit states’ ability to legislate, and one that I think could have important implications for other environmental and even energy statutes and regulations going forward. he facts of this case are pretty straightforward. California has an initiative process that is the version of direct democracy where citizens can qualify initiatives for the ballot. hose initiatives can become law. We adopted one such initiative in 2018, Proposition 12, 6 with about a 63% share of the vote. It was quite popular. It became part of the Health and Safety Code. It’s a law that prevents in-state sale of pork products from pigs that were conined in a cruel manner. he statute deines “cruelty” as including preventing the pigs from lying down, standing up, fully extending their limbs, or turning around freely. It would essentially eliminate sales of pork if producers used gestation crates for pigs, which are very, very small cage-like structures that prevent pigs from turning around. hey’re widely used across the industry. he goal of this initiative was to prevent animal cruelty, but proponents also suggested there would be health beneits for consumers by shifting methods. he challenge 5. National Pork Producers Council v. Ross, 598 U.S. 356, 53 ELR 20076 (2023). 6. Prevention of Cruelty to Farm Animals Act (Cal. 2018). 1-2024 ENVIRONMENTAL LAW REPORTER 54 ELR 10005 Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. was brought by two out-of-state organizations representing pork producers. heir argument was that the law violated the dormant Commerce Clause. his is the doctrine derived from the Commerce Clause of the U.S. Constitution—the implication being that, if the U.S. Congress is given the power to regulate interstate commerce, the states no longer have that power. he tricky part is trying to igure out when a state law constitutes regulation of interstate commerce. Prior to the decision in National Pork Producers , there were a few ways that a law could run afoul of the dormant Commerce Clause. One is that it could expressly discriminate against out-of-state producers in favor of in-state businesses. Another is that it could regulate outside of the state’s borders. his is the so-called extraterritoriality doctrine. hird, if neither of those applied, the law could still violate the dormant Commerce Clause if it imposed a substantial burden on interstate commerce—that is, if it were clearly excessive in light of the local beneits of the law, which has become known as the Pike balancing test. 7 he petitioners weren’t alleging intentional discrimination. hey acknowledged that the burdens on in-state pork producers were facially the same as burdens on outof-state pork producers, but the catch is that most of the pork sold in California comes from out of state. And California is a huge market. It accounts for about 15% of pork sales nationwide. 8 In addition, because of the way...