By Amy Cooperstein, 3L Staff, Fordham Environmental Law Review Journal

In 2020, uncertainty is ubiquitous.  This includes uncertainty in the future of environmental regulation.  One might view the replacement of environmental protectionist Ruth Bader Ginsberg with Amy Coney Barrett as consequential.  She twice wrote majority opinions while on the Seventh Circuit limiting the application of the Clean Water Act.  One “reversed an earlier ruling that found 13 acres of wetlands in Illinois fell under Clean Water Act protections,” and the second held “that a citizen group challenging the location of the planned Obama Presidential Center in Chicago did not have legal standing.”

On the other hand, the Biden administration prioritizes an expansive application of environmental protection. Biden is likely to reinstate the critical protections gutted by the Trump administration for lakes, rivers, and streams, and will remain committed to protecting “drinking water from toxic PFAS chemicals, which have already contaminated the drinking water of millions of Americans.” Notably, his “support for clean water goes back to his early days in the Senate, when he co-sponsored the Ocean Dumping Act of 1988, which prohibited dumping of sewage and sludge.”

The public trust doctrine has historically guaranteed “a public right to commercial navigation and fishing on navigable waters.” There have been proposals to expand the doctrine to upland resources, including wildlife, but so far it has been limited to public uses of waters. In practice, “an expanded public trust doctrine increases the power of the courts and puts courts in the position of overriding the actions of the legislative and executive branches of government.” A Biden administration could push the doctrine beyond just waters.

Under the current legal climate, expansion seems unlikely.  For example, in the recent Oregon Supreme Court decision, Chernaik v. Brown, the state “rejected claims that the public trust doctrine imposes broad duties on the state to protect the environment from greenhouse gas emissions.” Though the court recognized that the doctrine could be expanded over time, as stated in their October 22, 2020 opinion, “In this case, therefore, we do not impose broad fiduciary duties on the state, akin to the duties of private trustees, that would require the state to protect public trust resources from effects of greenhouse gas emissions and consequent climate change.”  Presidents get to appoint judges.  If President Biden appoints enough judges, it’s possible that public trust doctrine protections can be expanded.