The Fifth Vote

The late Supreme Court Justice Antonin Scalia was an eloquent practitioner of a conservative judicial philosophy based on a perception of what the Constitution's framers originally intended. Scalia rejected liberal judges' more flexible reading of the Constitution in which the document was treated as a "living" text whose meaning inherently adjusted to meet modern day challenges.

Scalia's static view of the nation's seminal foundational document has been no boon to environmental protection. Indeed, the fact that "environment" is not mentioned in the Constitution's original text appears to have downgraded the concept's importance in Scalia's eyes. His originalism led him most of the time to rule in favor of weakening federal environmental regulation. After all, the government's authority to wield such powers was not expressly referenced in the Constitution's original language or recognized by reasonable people at that time.
Since the four other conservatives on the nine-member court usually went along with Scalia in these environmental cases, some major controversies were decided by a razor-thin margin.

Depending on who is picked to succeed Scalia, a shift in the court's philosophical bearing on environmental matters is possible. One can only hope that his replacement will adopt a more flexible interpretation of the federal government's constitutional authority to administer environmental law. Consider that nowhere is Scalia's originalist reading of the Constitution more outdated than in relation to modern day environmental controversies. It makes no sense to speculate how the 18th Century drafters of the Constitution and their followers would have reacted to these environmental matters. If one could travel back in time and ask them how jurists should deal with global warming, rising sea levels, and transcontinental pollution, one would be met with blank stares.

Our founding fathers were not oblivious to the likelihood that changing times would bring unforeseen challenges. That is why they left the language in the Constitution sufficiently open-ended to allow for amplification and adaptations.

Because of the dynamic changes in the scope of modern day environmental degradation, no set of issues is more demanding of flexibility in the adjudication of the law.

The principle of equity embedded in 18th Century law endures. But a strict originalist might be uncomfortable with 21st Century reality. The world is far more complicated and crowded, requiring a far more expanded presence of government in relation to the individual.

That should be kept in mind by whomever ends up choosing a successor to Justice Scalia.