Searching for Nexus?
A Contextualist, Not a Categoricalist?
A 21 st Century Holmesian?
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Just 4 9 th Cir opinions in 12 years
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First 4 years on S.Ct. = no environmental opinions (joined 13 majority opinions; joined one dissent)
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Only one written dissent in an environmental case
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Pa. v. Union Gas (1989) (Congress could and did waive state sovereign immunity in the 1986 CERCLA A’s)—
Kennedy joined a 5-4 dissent (maintaining that
Congress had neither the intent nor the constitutional authority to waive state sovereign immunity)
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Accurate foreshawdowing of Rehnquist Court’s erection of the 11 th A as a shield for state liability in federal court
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Lucas v. S.Car. Coastal Council (1992) (regulation producing a complete econ. wipeout is a categorical taking)
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Early indication that Kennedy would not be a Scalian disciple on property rights and takings
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Lujan v. Defenders of Wildlife (1992) (environmentalists lacked standing to challenge a DOI exemption of federal agencies acting in foreign countries from ESA consultation)
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Kennedy concurred, objecting to Scalia’s rejection of standing for those interested in studying or seeing endangered species
Would entertain theories of “animal or vocational nexus” in a different context
Also unwilling to rule out that Congress lacked authority to identify injuries and chains of causation for standing purposes
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Friends of the Earth v. Laidlaw (2000) (envtl’ists have standing to seek civil penalties, since they redress injuries via deterrent effect)
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Ginsberg, for 7-2 S.Ct.
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Kennedy concurrence: “Difficult and fundamental questions” exist when Congress authorizes
“exactions of public fines by private litigants;” may impermissibly delegate Art. II Executive authority
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Palazzolo v. Rhode Island (2001) (preexisting wetland restrictions didn’t bar suit; rejection of
LO’s applications made it appear that state was unlikely to ever approve)
Kennedy wrote for a 5-member majority
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LO had standing; suit not barred by regs pre-dating
LO’s acquisition (rejects categorical “notice rule”)
Case ripe; submission of more development proposals would have been “futile,” due to
“unequivocal” nature of state regulations
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Kennedy—not an adherent of the common law model—animal and vocational nexus possible
Congress can define injuries sufficient for standing, but can’t interfere with Executive’s Art II authority
Standing for takings claimants with notice of regs
Repeated denials of development = ripeness
Seems opposed to establishing high barriers for standing and ripeness for LO’s alleging takings
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Give LO’s their day in court
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Gade v. Nat’l Solid Waste Mgmt. Ass’n (1992) (preempting 2
Illinois hazardous waste worker-training statutes because they conflicted with OHSA)
O’Connor for 5-member majority
Kennedy concurred, but disagreed w/ O’Connor’s conflict preemption—Kennedy would have found express preemption in the OSHA statute
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No need for actual conflict for preemption
Kennedy apparently viewed avoiding dual regulation as more important than protecting state police powers
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U.S. v. Locke (2000) (preempting Washington state statute regulating oil tankers)
Kennedy, for a unanimous S.Ct.
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In federal Oil Pollution Act of 1990, Congress created only a limited exception to the broad federal preemption of maritime law enacted in PWSA of 1972
1972 law’s objective = to provide uniformity of regulation
Kennedy made no attempt to assess sufficiency of envtl protection; focused on “political responsibility”
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Carbone v. Town of Clarkstown (1994) (1 st envtl. op) (ordinance subsidizing local facility’s collection of recyclable material by establishing a local monopoly violated Commerce Clause)
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Kennedy wrote for a 6-3 majority
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Burden on interstate commerce justified if = the only method available to advance local interest
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But here, there were alternative ways of financing the town’s transfer station
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Idaho v. Coeur d’Alene Tribe (1997) (2d envtl op.) (state immune from federal suit claiming that, under an 1873
Executive Order, the tribe owned lakebed)
Kennedy wrote for a 5-4 Court
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Ex Parte Young exception to 11th A state immunity = a function of case-by-case factual evaluation
Since tribe’s suit was the functional equivalent of a quiet title action, it implicated “special sovereignty interests”–would prevent state from governing lands held in trust for the public
Case revealed a split between Kennedy & O’Connor
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Amoco Production Co. v. U.S. (1999) (rejecting
Southern Ute’s Tribe’s claim to coalbed methane)
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Kennedy wrote for an 8-1 Court (Ginsberg, d.)
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Interpreted 1909 + ’10 statutes according to “common conception” of meaning of “coal” at the time
(methane gas not = resource but a hazard)
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Disregarded public land & Indian law canons
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Unwilling to defer to gov’t, which conveyed the coal rights (maybe due to K’s sense of retroactive liability)
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States’ rights = an intense interest of Kennedy’s
Yet he saw the Carbone ordinance as protectionist, while the dissent saw it as mgmt. of a local waste problem—willing to strike down as overregulation
Read state immunity broadly in Coeur d’Alene Tribe
Ignored public land + Indian canons in Amoco
While Kennedy = more devoted to judicial balancing + state sov. than O’Connor (Coeur d’Alene), but more willing to preempt to avoid duplicative regulation (Gade, Locke)
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Lucas v. S. Car. Coastal Council (1992) (per Scalia,
Constitution required LO compensation for regs producing a complete loss in economic value, subject to several exceptions)
Kennedy concurred (in 6-3 result)
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Disagreed with Scalia on the scope of exemptions (not limited to regs duplicating CL nuisance)
Too narrow a confine for regs in a “complex and interdependent society;” must account for changed conditions, new ecological understandings, and “fragile land[s]”
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Eastern Enterprises v. Apfel (1998) (invalidating, on a 5-4 vote, provisions of Coal Industry Retiree
Benefit Act of 1992 that required companies previously employing coal miners to pay some health care retirement costs)
Kennedy concurred with plurality (O’Connor)
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But not a taking; injury too “unlike the act of taking specific property”
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Retroactive effect of statute violated subtantive due process (forerunner of Lingle)
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Monterrey v. Del Monte Dunes, Ltd. (1999)
(okay for jury to decide takings issue; Dolan’s
“rough proportionality” inapplicable)
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Kennedy wrote for 5-member majority (3 rd envtl. op.)
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Jury not to evaluate reasonableness of regulations but to determine whether their application = taking
Federal 7 th A right to jury trials limited to where LO has no adequate remedy in state law
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Palazzo v. Rhode Island (2001) (standing for LO who had notice of restrictions + case ripe due to repeated gov’tal denials; but no categorical taking)
Kennedy, for 5-member majority
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No economic wipeout, as upland portion of the property retained “substantial” ec value (suitable for construction of a residence)
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Endorsed Penn Central balancing, but uneasy about the size of the property (parcel “as a whole” = a difficult, persisting question”)
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Lingle v. Chevron (2005) (upholding a Hawaiian statute imposing maximum rent that oil co’s could charge dealer lessees)
O’Connor, for a unanimous S.Ct, reversing 9 th Cir.
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Lower courts’ application of the “substantially advance” a legitimate state interest = impermissible
Test = actually part of due process, not takings clause
Kennedy concurred, reiterating his Eastern Enterprises conc, suggesting that arbitrary/irrational regs violate due process
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Kelo v. New London (2005) (condemnations for economic development = a public use)
Stevens, for a 5-4 S.Ct.
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The City’s carefully considered economic development plan warranted judicial deference
The plan ensured no taking of property from one owner to another without public benefit
Kennedy cast deciding vote, concurrence called for a
“careful and extensive inquiry” of ec development plans
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7-factor factual inquiry instead of plurality’s deference
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Kennedy = a contextualist (concerned about changed ecological understandings and “fragile land[s]” in Lucas conc.)
Juries can decide whether property is taken (Del Monte
Dunes)—a question of fact
LO notice of Hobbesian regs not a standing bar; repeated denials sufficient for ripeness (Palazzolo)
Federal courts to scrutinize rationality of local land use regs via substantive due process + 7-factor test for ec development condemnations (Eastern, Lingle, Kelo conc.)
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Alaska Dept of Envtl Conservation v. EPA (2004) (upholding
EPA authority to overrule the state on the application of
BACT under the Clean Air Act)—K’s only written dissent
Ginsberg, for a 5-4 S.Ct.
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EPA’s interpretation of the statute = reasonable (record showed state’s BACT much more polluting)
Kennedy wrote for a 4-member dissent
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Majority gave improper deference to EPA
Cooperative federalism scheme can’t “consign states to ministerial tasks,” while reserving final authority to EPA
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Rapanos v. U.S. (striking down Corps of Engineer regs asserting federal jurisdiction over wetlands lying near ditches/drains emptying into navigable waters)
S.Ct. split 4-1-4
Plurality (per Scalia, using a 1954 dictionary)—need
“permanent, standing, or continuously flowing” waterbodies
Kennedy’s conc.—federal jurisdiction where there is a
“significant nexus” to navigable waters
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States-rights federalism more telling to Kennedy than administrative deference or environmental protection (Alaska DEC)
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Clean Water Act jurisdiction extends to waterbodies affecting other jurisdictional waters
(nexus test)—need judicial factual inquiry
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Kennedy has great faith in judicial ability to undertake factual inquiries—context, not categorization dominates
Believes takings claimants ought to have their day in court—supports liberalized standing and ripeness rules
Skeptical of broad doctrinal changes (anti-Scalian)– a doctrinal minimalist
Skeptical of governmental regulation--“Hobbesian”
Advocate of states’ rights but quick to preempt state reg
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Anti-regulatory sentiment stronger than states’ rights sentiment
A professed property rights defender who nonetheless opposes increased categorical takings
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A devotee of case-by-case balancing
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A regulatory skeptic
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Relatively non-ideological
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“the life of the law is not logic, but experience”
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A states-rights Holmesian?
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