Is the U.S. Supreme Court hostile to environmental regulation? Does it shy away from the tougher environmental questions of today? Or are its decisions a "mixed bag," giving comfort and angst to environmentalists and industry depending on the issue?
The justices this term have taken five environmental cases for decision thus far -- a significant number for a relatively small docket. With the exception of the already argued case involving Navy sonar and its impact on whales and other marine mammals, this environmental quintet is unlikely to arouse public passions.
But all five cases raise bread-and-butter environmental issues, some with potentially huge implications for the ability of environmentalists and the government to enforce the nation's major environmental laws and for the wherewithal of business and industry to survive and prosper under those laws.
Traditional antagonists in these high court cases, environmental and business groups do seem to agree on at least one thing: The five pending cases are likely to be especially revealing of the still-emerging Roberts Court in an area of increasing national and international concern.
But their assessments of the Supreme Court in the environmental area are, like the cases this term, widely varying.
Calling environmentalists' last major high court victory -- a decision finding Clean Air Act authority for regulation of global warming gases -- an "anomaly," John Echeverria, executive director of the Georgetown Environmental Law & Policy Institute, said, "By and large, the Court's decisions have undermined and eroded environmental protections across the board."
"That's an unfair and untrue assessment," countered M. Reed Hopper, a senior attorney with the Pacific Legal Foundation, which describes itself as a public interest law group that litigates for property rights, limited government, free enterprise and a balanced approach to environmental regulation. "No matter what side you're on with respect to environmental cases, the results that come out of the Supreme Court are a mixed bag."
And, more specifically, the high court is split narrowly between two different approaches to government regulation that repeatedly resurface in cases involving standing, statutory interpretation and deference to the decisions of administrative agencies -- all issues in this term's five environmental cases, said Robert Percival, director of the environmental law program at the University of Maryland School of Law.
The Court, he said, is basically split, 4-1-4. "We've got four justices who understand the purposes of environmental laws and the importance of precautionary regulation. Four others who are wedded to the common law model where you have to prove specific harm caused by specific sources before regulating," he said.
"And then, we have Justice [Anthony] Kennedy, who kind of gets it that the common law model is inadequate to deal with the modern world, but is skeptical of government intervention at times. So occasionally, he'll surprise people, as in the global warming decision and provide the fifth vote, and then he'll go off on his own, as in the most recent wetlands decision, and make a total mess of things."
The five environmental cases arise under four environmental laws: two under the Clean Water Act, one under the National Environmental Policy Act, one under the Superfund law (the Comprehensive Environmental Response, Compensation and Liability Act), and one under the Forest Service Decision-Making Appeals and Reform Act.
With the exception of the Superfund case, in which the government successfully squared off against two companies in lower courts, the other four cases were brought and won by environmental groups. On the surface, victories in the lower courts would give the victorious some comfort about the chances on appeal. But conventional wisdom says the Supreme Court generally doesn't take cases to affirm.
Further deepening some environmentalists' pessimism about the current term is the NEPA case -- Winter v. Natural Resources Defense Council, No. 07-1239 -- involving the Navy's challenge to a federal injunction restricting its sonar training exercises because of potential harm to marine mammals. The justices have heard 15 cases under NEPA, by one law professor's count, and plaintiffs have lost all 15.
"It's important how the Court resolves all of these cases, but the larger question is what cases does the court select and what message is it sending by the cases it chooses to address," said Georgetown's Echeverria. "It's pretty clear the selection this term voices hostility to environmental protection, which is a major change from a couple of decades ago."
In that earlier period, he said, the justices were very supportive of the Superfund program as well as environmental interests in takings, wetland and major land-use cases.
The Court, on the whole, is being more sensitive to business concerns, whether in the environmental or securities areas, noted Paul Kamenar, senior executive counsel to the pro-business Washington Legal Foundation.
But one environmental area in which the Court recently has not been so sympathetic to business interests is the question of standing to sue, he said. The Court "liberalized" standing its 2007 global warming decision, Massachusetts v. EPA, 549 U.S. 497, he said.
Kamenar and Pacific's Hopper also have a problem with the Court's selection of environmental cases, but for different reasons than environmentalists.
"I think the Court certainly has been reluctant to take on some of the tougher environmental issues," said Hopper. The court, he said, has been petitioned four or more times to address the constitutionality of the Endangered Species Act.
"It may simply be neither side feels it can garner the votes it needs to give us a definitive opinion," he suggested. "They may fear a Rapanos-type decision."
Rapanos refers to Rapanos v. U.S., 547 U.S. 715, the Court's 2006 plurality decision narrowing Clean Water Act jurisdiction over the filling of wetlands. It has produced a host of conflicting interpretations in the lower courts.
Kamenar, Hopper and others believe there is a compelling need for the Court to revisit the issue.
"The Court has been asked five times since 2006 to clarify Rapanos," said Hopper. "They certainly don't have an open-door policy with respect to environmental questions."
Despite their differing views of the high court, both sides agree on which of the five cases have the greatest potential impact in the environmental area, as well as beyond it.
In Winter -- the Navy sonar case -- the Navy contends an injunction requiring it to conduct an environmental impact statement and limiting its use of sonar when marine mammal activity is present seriously interferes with national security. The case is very unusual because of its procedural posture: a challenge to a preliminary injunction, noted Maryland's Percival.
"At the same time, it could result in a blockbuster decision with important constitutional implications: whether it's constitutional for the president to countermand NEPA by making alternative arrangements for compliance with the act," he said.
The issue in the case that could apply beyond NEPA involves the standard used to grant the injunction, said Kamenar. The 9th U.S. Circuit Court of Appeals, he contends, used a relaxed standard -- the mere possibility of environmental harm -- under which leases for mining, timber sales, oil drilling on public lands, among other actions, will come "to a grinding halt."
Entergy Corp. v. Riverkeeper, nos. 07-588, -589, -597, in which electric utilities argue that the Clean Water Act authorizes the use of cost-benefit analysis in regulating water-cooling intake structures, is also high on both sides' impact list.
"In the '70s, when the vast majority of environmental statutes were enacted, there was a lot of skepticism about cost-benefit analysis," said Amy Sinden of Temple University James E. Beasley School of Law.
"With very few exceptions, it was rejected as a way of coming up with environmental standards because, they said, you can't put a dollar value on all of the things environmental statutes protect," Sinden said. "They used instead a feasibility standard -- reduce environmental degradation as much as technologically feasible."
But there has been a shift to more acceptance of cost-benefit analysis, she said. "To me, the case does have larger ramifications about how we look at environmental policy and policy generally. It's part of a big struggle."
High court litigator Mark Levy, of counsel to the Washington office of Atlanta's Kilpatrick Stockton and a close watcher of the Court's business docket, flags Summers v. Earth Island Institute, No. 07-463, in which environmentalists successfully challenged the facial validity of Forest Service regulations exempting from public comment and appeal small timber projects, particularly one involving Sequoia National Forest.
"It fits in with the Roberts Court's jurisprudential approach and its restriction on the role of the courts," Levy said. The case raises issues of standing, ripeness, facial attacks and remedies.
Standing is an issue than runs throughout environmental law, said Georgetown's Echeverria, adding that Chief Justice John G. Roberts Jr.'s views on standing are not expected to be "helpful" to the environmental community.
Also critical is the nationwide scope of the remedy imposed by the courts here, he said. "The conservative side of the Court has repeatedly tried to press environmental cases into relatively narrow site-specific boxes, and environmentalists use the site-specific challenge for programmatic reform," he said. "So there is tension over how far site-specific controversies can produce programmatic reform. Of all the cases before the Supreme Court, that's one where the environmentalists might well perceive themselves as more in the bull's-eye."
APPORTIONMENT OF LIABILITY
And, finally, Burlington Northern v. U.S., No. 07-1601, consolidated with Shell Oil v. U.S., No. 07-1607, also has potentially wide ramifications, all contend. The Court faces questions about the standards for apportioning liability among parties for Superfund site cleanups and for imposing so-called "arranger" liability under the same law. The companies here are challenging the 9th Circuit's refusal to apportion liability and its imposition of joint and several liability as well as arranger liability.
"We have numerous Superfund sites where there's litigation as to who is responsible for what," said Kamenar. "Congress intended courts to use common law and the Restatement of Torts for apportioning liability among potentially responsible parties. It's only if that cannot be done on a reasonable basis, then and only then, does joint and several liability kick in. The case is very important in terms of the standard courts should use in apportioning liability, particularly where there are no records of who did what."
The issue of arranger liability is also "crucial" to industries such as chemical and pesticides, he added. "Any time a company sells a product to a buyer, if the buyer spills some of chemicals or whatever on the property, which becomes a Superfund site, can the seller be held liable?" he said. "Here the court said Shell was jointly and severally liable."
In the end, Echeverria predicted, "If one were a gambler, one would bet a majority of the cases the Supreme Court has agreed to hear will come out against the environment."