Professor Sam Kalen Examines the Future of the Administrative State During Gilbert and Sarah Kerlin Lecture on Environmental Law at Elisabeth Haub School of Law
On Tuesday, October 3, 2023, Sam Kalen delivered the annual Gilbert and Sarah Kerlin Lecture on Environmental Law. Professor Kalen is the William T. Schwartz Distinguished Professor of Law and Associate Dean at the University of Wyoming College of Law, as well as the founder and co-director of the School’s Center for Law and Energy Resources in the Rockies. Also, he is currently the Visiting McKinney Family Chair in Environmental Law at IU McKinney School of Law. The topic of his lecture was “The Supreme Court’s Approach Toward the Administrative State and Implications for Environmental Programs.”
Prior to the commencement of the lecture, Jason Czarnezki, Gilbert and Sarah Kerlin Distinguished Professor of Environmental Law and Associate Dean of Environmental Law Programs and Strategic Initiatives thanked all who helped to make this year’s Kerlin lecture happen and introduced the Dean of the Elisabeth Haub School of Law at Pace University, Horace E. Anderson Jr. Dean Anderson spoke of the importance of the Kerlin lecture and the innovative and premiere environmental legal education that Haub Law provides, which includes hosting speakers like Professor Sam Kalen. Dean Anderson noted, “We are consistently honored to host top scholars, dignitaries, attorneys, experts, and leaders in public service, such as Professor Kalen, to speak to our community about current environmental challenges and importantly, solutions to those challenges. This knowledge is fundamental to our understanding of how we apply the rule of law to impact not just us as individual humans, but also our planet.” Professor Jason Czarnezki formally introduced Professor Sam Kalen, in presenting the 2023 Gilbert and Sarah Kerlin Lecture Award, highlighted Professor Kalen’s impressive background and career, including serving in the Solicitor’s Office at the Department of the Interior during the Clinton administration.
Professor Kalen started his lecture by noting that it was fitting to have a lecture about the Supreme Court as the Court’s term just started. In particular, a discussion about how the judiciary is deciding cases, and how those decisions may implicate environmental cases and laws moving forward was warranted given that there are at least three cases set to go before the Supreme Court this year that seek to curb the power of federal agencies.
Throughout the lecture, Professor Kalen shared his concern for the future of the environmental administrative state. “Some of what I may say can be considered depressing for those that cherish our environmental programs,” said Professor Kalen. A focus of Professor Kalen’s lecture was detailing specific environmental law cases, both historical, and more recent, and how the Court at the time approached the administrative state and looking towards the present cases before the Court and future.
Professor Kalen went on to note that the recent case, Sackett v. EPA, is one of the most momentous decisions issued by the Supreme Court narrowing the scope of the Clean Water Act. In this case, the Court considered whether the 9th circuit applied the appropriate test to determine whether Sackett’s property contained wetlands that are “adjacent wetlands” as regulated by the Clean Water Act. While the case deals with the Clean Water Act, he notes, it reduces related environmental rights and the scope of agencies. “Sackett also does something else,” he notes. “It illustrates the Court’s approach towards the administrative state and suggests a greater involvement by the judiciary shifting more power to the courts when interpreting statutes and for our purposes, environmental statutory law.”
“Environmental programs function as a consequence of how the modern administrative state operates,” he said. “Agencies need flexibility to address new and emerging environmental threats and concerns.” Of primary concern, Professor Kalen notes, is that through cases like Sackett, the Supreme Court has employed methods to chip away at the modern administrative state. Professor Kalen’s lecture detailed that recent cases brought before the courts involve three things regarding administrative agencies (1) agency structure; (2) agency authority and flexibility; and (3) the malleability of modern statutory construction.
Professor Kalen concluded his lively lecture, by nothing that what a case like Sackett has done is “basically give the power over to the judiciary to interpret language and not give deference to agencies and, the minute it does that, it hinders agencies ability to move forward in a progressive way.”
After the lecture, audience members had an opportunity to comment and ask questions. The impactful, provocative, and honest discussion continued. In response to an audience question regarding what we can do to move forward in a positive manner, Professor Kalen honestly answered that he does believe we are in trouble. “I think right now the courts are outcome driven. Regardless of how the language is drafted, what we are seeing is judicial opinions doing very strange things from a statutory construction perspective. I wish I could say otherwise or that these are principled decisions, but I think it is difficult for some of us to say that they are in fact principled decisions.” Following the lecture, a networking reception was held where the Elisabeth Haub School of Law at Pace University community had the opportunity to the continue the conversation with Professor Kalen and one another.
The Elisabeth Haub School of Law established the Gilbert and Sarah Kerlin Lecture on Environmental Law to expand its programs of research, education, professional and scholarly activity and publications in environmental law, a field for which the law school has received national and international recognition. The Kerlin endowment funds a named professorship on Environmental Law at Haub Law. Professor Nicholas A. Robinson, founder of the Haub School's environmental programs, was named the first Gilbert and Sarah Kerlin Distinguished Professor in 1999 and Professor Jason J. Czarnezki was designated as the second Kerlin Distinguished Professor in 2013. The last Kerlin lecture was given by U.S. Environmental Protection Agency General Counsel Jeffrey Prieto.
