With Scalia Gone, Pacific Legal Foundation Loses Ally on Property Rights

High Country News is a print and online publication that offers excellent coverage of news related to Western issues.  Yesterday Elizabeth Shogren, their "DC Dispatch" reporter, posted a fascinating article entitled "Scalia was Supreme Court’s leader on limiting environmental rules: A conservative legal foundation fears its winning streak may be over."

In his opinion in the 2006 Clean Water Act case known as Rapanos, one of the Pacific Legal Foundation’s biggest triumphs, Scalia criticized “the immense expansion of federal regulation of land use that has occurred under the Clean Water Act — without any change in the governing statute — during the past five Presidential administrations.”

Scalia’s death dims the Pacific Foundation's chances in a major environmental case on the horizon. The Supreme Court is expected to eventually review Obama’s Clean Water Rule, which has been stayed by a lower court. Significantly for the arid West, the rule would protect tributaries, no matter how frequently water flows in them, as well as some wetlands, ponds and ditches. "With Justice Scalia’s departure, it’s fair to say it’s more likely to be upheld," Schiff says. “The impacts will be principally in the West. It’s precisely in the areas that are dry most of the year that you have the most significant disputes about the Clean Water Act.”

The article also discusses the potential impact to the Clean Power Plan, as well as the impact to administrative-law-related decisions generally.

Jamie Baker Roskie