© Provided by SlateChief Justice John Roberts arrives at Joe Biden's inauguration. Pool/Getty Images
The Supreme Court turned away a major challenge to the president's ability to protect marine ecosystems on Monday, a victory for the environment that comes with a caveat: Chief Justice John Roberts expressed his desire to narrow-really, eviscerate-the executive branch's power to safeguard large areas of environmentally sensitive lands, especially those underwater, in the future. Roberts' opinion invites industry groups to challenge the scope of submerged national monuments, and it suggests that, next time around, the chief justice will shrink these critical habitats down to a fraction of their former size. It is an ominous sign for conservationists and a direct attack on one of America's most important environmental laws.
That law, the Antiquities Act of 1906, empowers presidents to designate land controlled by the federal government as a "national monument," shielding it from development and destruction. Some monuments, like the Gila and Navajo cliff dwellings, are relatively small, but others are massive: President Theodore Roosevelt, a staunch advocate of the measure, reserved more than 800,000 acres of land when he created the Grand Canyon National Monument. Congress can always alter the size of these monuments, or upgrade them-as it did when it transformed the Grand Canyon into a national park in 1919.
Since 2006, presidents have designated five large underwater areas as national monuments to protect unique and valuable ecosystems. Their actions have prevented commercial fishing and mineral extraction in these highly sensitive areas. Roberts' opinion on Monday involved the Northeast Canyons and Seamounts Marine National Monument, off the northeast Atlantic coast, which President Barack Obama established in 2016. Obama explicitly designated three underwater canyons, four extinct undersea volcanoes, and "the natural resources and ecosystems in and around them." This "natural wonder," as a federal judge described it, is more than 100 million years old; it is home to an extraordinary range of biodiverse marine life, including multiple species of endangered whales.
The monument is big, covering about 4,913 square miles, completely beneath the ocean. Only four other national monuments are larger, and they are all underwater as well: Rose Atoll, Marianas Trench, Pacific Remote Islands, and Papahanaumokuakea. All were designated by President George W. Bush. These large marine monuments displease industries, like commercial fishing and deep-sea mining companies, that seek to exploit the ocean's natural resources. Industry groups successfully pushed the Trump administration to begin the process of substantially downsizing underwater monuments, as well as two on land in Utah. The administration also allowed commercial fishing within the Northeast Canyons and Seamounts Marine National Monument. On his first day in office, President Joe Biden ordered a review of these policies and is almost certain to reverse them.
Worried about shifting political winds, industry groups turned to the federal judiciary, which Donald Trump stacked with hard-right conservatives. They claimed that the Antiquities Act does not apply to underwater areas, including the entire Northeast Canyons and Seamounts Marine National Monument. That is a curious claim, because the Antiquities Act is quite broad: It allows the president to name "objects" of "scientific interest" as national monuments, and to incorporate "parcels of land" so long as they are "confined to the smallest area compatible with the proper care and management of the objects to be protected."
To narrow this language, industry groups argued that underwater monuments are not "land" and ecosystems are not "objects" under the act. They also asserted that, either way, Obama had failed to protect the "smallest area" possible when designating the Northeast Canyons and Seamounts Marine National Monument. Federal courts, they declared, must shrink or abolish it.
As the U.S. Court of Appeals for the District of Columbia Circuit explained in 2019, there are a few problems with this argument. First, the Supreme Court has repeatedly held that underwater land does qualify for protection as a national monument. Second, it is also settled precedent that submerged ecosystems are "objects" of "scientific interest." Third, the challengers did not demonstrate that Obama violated the "smallest area" requirement. Obama, the court noted, did not only protect the canyons and volcanoes; he also designated "the natural resources and ecosystems in and around them" as part of the monument. The challengers could not back up their allegations that any portion of the monument lacked the "natural resources and ecosystems" that Obama wanted to protect. Their case rested on mere conjecture.
On Monday, though, the chief justice bought into these arguments against Northeast Canyons and Seamounts Marine National Monument hook, line, and sinker. Roberts wrote that the Antiquities Act "originated as a response to widespread defacement of Pueblo ruins" in the American Southwest and complained that "this case demonstrates how far we have come from indigenous pottery." He implied that Congress never intended to let presidents protect thousands of miles of ocean. And he hinted that unelected federal judges-not presidents, accountable to the people and advised by scientific experts-should decide whether a monument really encompasses the "smallest area" necessary to protect designated ecosystems.
This is bad history, and it would make bad law. As historian Douglas Brinkley revealed in his exhaustive study of the campaign that led to the Antiquities Act, Congress sought to protect much more than "indigenous pottery." Egged on by Roosevelt, lawmakers attempted to inaugurate a new era of environmentalism in America and envisioned the Antiquities Act as a powerful tool that presidents could use to preserve endangered species, critical habitats, and natural phenomena. That's why Roosevelt promptly designated more than 1,250 square miles of the Grand Canyon as a national monument. At the time, no one thought federal judges should decide if he had truly selected the "smallest area compatible" with preservation of the land. For 115 years, courts have deferred to the president's determination of how much land is necessary for the management of each monument.
But why should the history of the Antiquities Act even matter to Roberts? If he truly believes that the text of the law is what counts, then congressional intent should be irrelevant to his analysis. Even if the Congress of 1906 was only thinking about native artifacts (and it wasn't), the act it passed swept far beyond "indigenous pottery." The law's text is so expansive that its foes must resort to feeble word games (submerged land isn't "land"; ecosystems aren't "objects") to subvert it.
It is an encouraging sign that no other justice joined Roberts' assault on underwater monuments. There will, however, be many more opportunities for the Supreme Court to gut the Antiquities Act. Roberts concluded that this particular case was not worth taking up, in part because Biden has not yet restored the fishing ban that so infuriated the plaintiffs. But he pointed to "five other cases pending in federal courts concerning the boundaries of other national monuments," suggesting that the court might hear one in the near future. Trump may be out of office, but the campaign that his administration launched on the government's ability to protect vulnerable natural wonders will live on in the federal judiciary for years to come.