Over the past few months the intersection of religious principles and environmental protection has become a topic of public dialogue. Religious beliefs have also been invoked in recent cases seeking to block pipeline projects or protect endangered species. Even more recently, the press has reported on statements by EPA Administrator Scott Pruitt which suggest that religious freedom could now form the basis of challenging permit denials. Are we at the point where environmental lawyers need to study religion in order to represent their clients?
The recent public discourse about the intersection of environmental protection and religious principles started in 2015 when Pope Francis published his encyclical Laudato Si. The Pope explained that protection of the environment is part of God’s plan. In this context the Pope argued that it is important to address global warming because of its impact on the planet and disproportionate effect on the poor and disadvantaged.
EPA Administrator Pruitt is reported to have a different view. This is based upon a literal reading of the Book of Genesis. It says God has given humans dominion over the earth, and the belief that as a result humankind has the right to manage and cultivate the earth’s resources for its benefit. The New Republic explained these differing viewpoints in an article by Emily Atkin entitled “Scott Pruitt vs. The Pope” dated February 27, 2018.
The religious principles proffered by Pope Francis are reflected in legal theories advanced in a number of recent cases. For instance in Adorers of the Blood of Christ v. Federal Energy Regulatory Commission (EDPA, Case No 5:17-cv-03163 JLS) a religious order challenged FERC’s approval of a pipeline crossing the order’s property by asserting that the property is sacred to their beliefs and that the pipeline would contribute to global warming. Similarly, in Crowe Indian Tribe v. Zinke (D Mont. Case No. 9:17-cv-00089DLC-JCL) the plaintiffs challenged a regulation delisting the Yellowstone Grizzly Bear as an endangered species asserting the importance of that species to the practice of their religion. These cases assert claims under the Religious Freedom Restoration Act, 42 U.S.C. 2000bb. This statute prohibits the government from substantially burdening a person’s exercise of religion unless it furthers a compelling governmental interest and is the least restrictive means of furthering that interest. Another example is Standing Rock Sioux Tribe v. Army Corps of Engineers, 239 F.Supp. 3d 77 (D.D.C. 2017). In that decision, the Court rejected a request for an injunction seeking to block construction of a pipeline across a lake, finding that construction of the pipeline did not create a substantial burden on the plaintiffs’ exercise of their religious beliefs.
Looking at the legal theory in these cases and invoking the religious views attributed to EPA Administrator Pruitt, is it possible that someone could challenge the denial of a permit on the grounds that it imposes a substantial burden on their religious belief that natural resources are subject to human dominion and are there to be exploited? While case law to date would not seem to support such a theory, in 2018 it seems less far-fetched than in the past.
This blog post was originally published on the blog of the American College of Environmental Lawyers, in which Mr. Toft is a Fellow.