Special Topics in Environmental Management

Scalia’s Impact on Environmental Law

The Constitution is silent on protection of the environment, and so environmental cases did not provide the late Supreme Court Justice Antonin Scalia with a convenient opening to expand on his belief in originalism—the position that the Constitution means what the framers wanted it to mean when they wrote it and that meaning does not change over time.

However, the Constitution also provides for the separation of powers in the federal government, which Scalia interpreted to mean that any regulatory overreach by the executive branch must be identified and halted. Scalia certainly relied on that thinking in certain cases to inform the EPA and other executive branch agencies that they did not have as much statutory authority as they appeared to believe they had to curtail the operations of business and industry.

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