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High Court Losses Stun Environmentalists
Environmentalists are 0-for-5 at the Supreme Court this term
The National Law Journal
July 01, 2009
Environmentalists suffered a stunning 0-for-5 outcome in the U.S. Supreme Court this term, their "worst term ever," according to advocates and scholars.
The defeats left the environmental community -- and even its traditional antagonist in these cases, the business community -- wondering where the Court is heading in this increasingly important area of the law.
Is the Roberts Court pro-business, anti-environment, pro-government -- or something else? Their answers are as varied as the issues raised in the five cases that the justices decided.
What is clear is the Court's heightened interest in environmental law. The justices have decided 15 cases in just the past five terms, but in none of those terms, in fact in none of the past nine terms, have environmentalists experienced a complete shutout.
"This has never, I believe, happened before, and this includes some big wins," said Richard Lazarus, co-director of the Georgetown University Law Center Supreme Court Institute, who argued and lost one of the five decisions this term.
For environmentalists, the defeats were particularly painful because their interests had prevailed in the courts below in all five cases. The justices granted review at the behest of business, even when the solicitor general of the United States recommended denying review. "They were all victories below for environmentalists, so you wonder if the Court is making some strategic choices in the cases it picks," said Jonathan Cannon, director of the environmental and land use program at the University of Virginia School of Law.
Based on the five decisions, the trend this term is "business always wins, even when the government's interest is to the contrary," said John Hanson, a partner at Washington's Beveridge & Diamond who represents businesses in environmental litigation.
Business' remarkable record may be due in part, Lazarus suggested, to the entry this term of the private sector Supreme Court bar on behalf of business interests in environmental cases, including such well-known, repeat players as former Solicitor General Theodore Olson of Gibson, Dunn & Crutcher and Maureen Mahoney of Latham & Watkins. "In each of these cases, business turned not to the usual retinue of environmental legal experts, but to expert Supreme Court advocates," said Lazarus, who has studied the influence and effectiveness of those appellate practitioners.
Statisticians would say five cases are too small a sample on which to predict an enduring pro-business trend, said Virginia's Cannon, but he added, "It certainly sends a signal."
ADDING UP
Although none of the five decisions is a landmark ruling, all raised 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.
The justices ruled:
• 6-3 for electric utilities that argued that the Clean Water Act authorizes the use of cost-benefit analysis in regulating water cooling intake structures (Entergy Corp. v. Riverkeeper).
• 6-3 for a gold mine operator that argued that the Army Corps of Engineers had the authority to issue permits for dumping dredge or fill dirt into an Alaskan lake without satisfying more stringent pollution limits for permits issued by the Environmental Protection Agency (Coeur Alaska v. Southeast Alaska Conservation).
• 8-1 that the federal Superfund law does not mandate joint and several liability in every cost-recovery case but permits apportionment, and narrowing so-called "arranger liability" of companies that sold the product that ultimately polluted the site (Burlington Northern Railway/Shell Oil Co. v. U.S.).
• 6-3 to lift an injunction requiring the Navy to conduct an environmental impact statement and limiting its use of sonar when marine mammal activity is present (Winter v. NRDC).
• 5-4 that environmental organizations lacked standing to challenge U.S. Forest Service regulations exempting the service from notice, comment and appeal processes for fire-rehabilitation and salvage-timber sales (Summers v. Earth Island Institute).
