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Thursday, November 2, 2006

Blumm and Bosse on Justice Kennedy and the Environment

Michael C. Blumm and Sherry Bosse (Lewis & Clark Law School) have posted Justice Kennedy and the Environment: Property, States' Rights, and the Search for Nexus on SSRN.  Here's the abstract:

Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court's crucial voice in environmental and natural resources law cases. Kennedy's central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S. He supplied the deciding vote in each, upholding local use of the condemnation power for economic development under certain circumstances in the first, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters in the second. In both cases Kennedy's sole concurrence provided the margin of victory.

Justice Kennedy has in fact been the barometer of the Supreme Court's environmental and natural resources law compass since his nomination to the Court in 1988. Although Kennedy wrote surprisingly few environmental and natural resources law opinions during his tenure on the Rehnquist Court, over his first eighteen years on the Court, he was in the majority an astonishing 97 percent of the time in environmental and natural resources law cases — as compared to his generic record of being in the majority slightly over 60 percent of the time. And Kennedy now appears quite prepared to assume a considerably more prominent role on the Roberts Court in the environmental and natural resources law field.

This article examines Kennedy's environmental and natural resources law record over his first eighteen years on the Supreme Court and also on of the Ninth Circuit in the thirteen years before that. The article evaluates all of the environmental law and natural resources law cases in which he wrote an opinion over those three decades, and it catalogues his voting record in all of the cases in which he participated on the Supreme Court in an appendix. One striking measure of Justice Kennedy's influence is that, after eighteen years, he has written just one environmental dissent — and that on states' rights grounds, which is one of his chief priorities.

The article maintains that Kennedy is considerably more interested in allowing trial judges to resolve cases on the basis of context than he is in establishing broadly applicable doctrine. Kennedy is therefore a doctrinal minimalist. By consistently demanding a demonstrated nexus between doctrine and facts, he has shown that he will not tolerate elevating abstract philosophy over concrete justice. For example, he is interested in granting standing to property owners alleging taking demands, but he is quite skeptical about the substance of their claims. Another example of his nuanced approach concerns his devotion to states' rights — which is unassailable — yet he has been quite willing to find federal preemption when it serves deregulation purposes. On the other hand, as his opinion in Rapanos reflects, Kennedy is far from an anti-regulatory zealot. But he does seem to prefer only one level of governmental regulation.

At what might be close to the mid-point in his Court career — and with his power perhaps at its peak — Justice Kennedy is clearly not someone any litigant can ignore. By examining every judicial opinion he has written in the environmental and natural resources law field, this article hopes to give both those litigants and academics a fertile resource to till. Although Kennedy has been purposefully difficult to interpret in this field (writing very few opinions until lately), his record suggests that he may be receptive to environmental and natural resources claims if they are factually well-grounded do not conflict with Kennedy's overriding notions of states' rights.

Ben Barros

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Land Use, Natural Resources, Recent Scholarship, Takings | Permalink

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