The Supreme Court’s Rightward Turn Won’t Stop Us From Using the Law for Progress
Earthjustice’s director of strategic legal advocacy reflects on the courts' conservative shift and what's really at stake in Sackett v. EPA.
The Supreme Court hearing of Sackett v. EPA on October 3 underscores how much sway courts have over environmental issues that touch everyone. Safe drinking water for millions of Americans is at stake with this case. Just last year, the justices curtailed the ability of the EPA to reduce climate pollution.
The nation’s highest court is advancing an ideological agenda that weakens fundamental rights, kneecaps government agencies, and seizes unprecedented power for unelected officials.
But the appointed are not anointed. And if cases and arguments are chosen thoughtfully, there’s still a path to use the law for progress. Kirti Datla, Earthjustice’s new Director of Strategic Legal Advocacy, is guiding this work. Here’s her thinking on the latest Supreme Court trends.
What should we watch for in the court’s coming term?
The justices will hear Sackett v. EPA in October. The Sacketts are a couple who own land in Idaho about 300 feet from a lake that also borders a wetland and a nearby creek. For more than a decade, the Sacketts have resisted the EPA’s requirement that they get a permit under the Clean Water Act before adding more sand and gravel to their marshy lot in order to build on it.
To realize what this case is really about, just look at the legal briefs filed on the Sacketts’ side. It’s groups like the National Mining Association and the American Petroleum Institute. They don’t care about what’s going on in people’s private backyards. Instead, they care about industrial entities like mining companies being able to dump toxic mine tailings into a nearby river that’s going to wash downstream into other waters without getting a permit. Or pipeline companies that want to build pipelines that cross wetlands without getting a permit to address the fact that the pipeline might disrupt the wetland ecosystem.
Earthjustice is representing tribes who support the EPA in this case. What’s at stake for them?
This kind of industrial-level pollution often crosses borders and ends up on tribal reservation land. And a lot of mining takes place in areas that are culturally sacred to our tribal clients.
Right now, the way that most tribes protect their water is by relying on the federal government to enforce the Clean Water Act. If you narrow the scope of the act to leave out waterways like wetlands, you remove big parts of the country from protection, including many tribal lands.
How badly did the court’s recent climate ruling limit federal action on cutting carbon?
West Virginia v. EPA was simultaneously about nothing and everything. All the Supreme Court held is that the Clean Power Plan, an Obama administration regulation that never went into effect, was unlawful.
But the reason the decision is simultaneously about everything is because of the “major questions” doctrine that the court raised. The doctrine essentially attacks the idea that Congress can write broad statutes that give agencies the power to address big problems that evolve and present themselves over time, like climate change. This is an approach Congress has taken for decades, and that’s why the decision is so troubling. It’s sending up this flare that critical regulations are subject to attack more than they were before.
How has the courts’ rightward shift changed Earthjustice’s overall legal strategy?
If we continue to write solid briefs, think critically about counterarguments, and understand the judges we’re appearing before and shape our arguments accordingly, that’s going to get the job done most of the time. So, a lot of my job focuses on those fundamentals.
Our Maui case before the Supreme Court in 2020 — which occurred before I arrived — is a great example. Earthjustice did a great job of anticipating the judges’ concern, which was regulations being overly burdensome. Earthjustice attorney David Henkin addressed that concern, and he won. In the process, he also solidified the Clean Water Act’s place as one of the nation’s most effective environmental laws.
What makes you hopeful the courts can still be an avenue for progressive change?
Literally every person I’ve interacted with since starting work here last June. They’re incredible lawyers, they’re incredibly dedicated to their clients and to this work, and they’re so thoughtful about how best to do that work even with courts changing. Earthjustice is well positioned as an organization to keep making progress.
Also, our legal advocacy isn’t just at the federal level. We’re supporting many local governments and agencies in efforts to electrify their energy grids, cut carbon emissions, etc. That’s an important part of our work that isn’t always as visible, but it makes a big difference on the ground.
Kirti leads Earthjustice’s efforts to anticipate and shape trends in judicial doctrine outside the environmental arena. She is an appointed Public Member of the Administrative Conference of the United States, an independent federal agency dedicated to improving the federal administrative process.
Jessica is a former award-winning journalist. She enjoys wild places and dispensing justice, so she considers her job here to be a pretty amazing fit.
Earthjustice’s Washington, D.C., office works at the federal level to prevent air and water pollution, combat climate change, and protect natural areas. We also work with communities in the Mid-Atlantic region and elsewhere to address severe local environmental health problems, including exposures to dangerous air contaminants in toxic hot spots, sewage backups and overflows, chemical disasters, and contamination of drinking water. The D.C. office has been in operation since 1978.