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Washington-The nation’s business community will be watching a rather large business-related docket in the new Supreme Court term. And the cases on that docket cut a wide swath through environmental, antitrust, employment discrimination and other areas of the law. “It’s not a particularly hot docket and not a particularly small or dull docket,” said veteran high court litigator Roy T. Englert Jr. of Washington’s Robbins, Russell, Englert, Orseck & Untereiner. The term thus far, he added, has no single, standout case affecting the entire business community, such as last term’s major punitive damages decision- State Farm Mutual Auto. Ins. Co. v. Campbell. But a number of the cases to be decided, he said, are either already significant or potentially important, depending upon their outcome. The court has granted review in 38 cases so far this term-about half of what its total docket will be. Of these 38, there are 18 “true” business-related cases, said Mark I. Levy of Washington’s Howrey Simon Arnold & White, who, like Englert, is a former assistant to the solicitor general and a high court expert. Those challenges with potentially the greatest significance come to the court from essentially three areas of law: environmental, antitrust and employment. The justices will hear arguments in a trio of environmental cases-all with federalism overtones. The most important of the trio, said Englert and others, may be Alaska Department of Environmental Conservation v. EPA, 02-658-a challenge under the federal Clean Air Act. [ 9th Circuit opinion] In 1999, the Alaska state environmental agency issued a permit for the construction of a new electric generator 100 miles north of the Arctic Circle after finding that the facility used the best available technology to control its emissions. The U.S. Environmental Protection Agency (EPA) disagreed with the state’s finding and issued orders prohibiting construction. The state went to court and the 9th U.S. Circuit Court of Appeals agreed with the EPA that the plain text, structure and history of the Clean Air Act made clear that EPA had enforcement power to issue the orders halting construction. The case “raises fundamental questions about the respective authority of EPA and the states,” said Englert, and has practical importance for the many businesses with facilities regulated under the Clean Air Act. Congress gave the EPA override authority, added Levy, because of concern that state regulators might be under the sway of big companies-a historical fact noted by the 9th Circuit. A second Clean Air Act challenge- Engine Mfrs. Ass’n v. South Coastal Air Quality Management Dist., No. 02-1343-asks the court whether a local government’s rules prohibiting fleet operators from buying new diesel-fueled vehicles are pre-empted by the federal act. [ 9th Circuit opinion] And the third case- South Florida Water Management Dist. v. Miccosukee Tribe of Indians, No. 02-626-involves the Clean Water Act. The justices will decide whether the local management district must get a National Pollutant Discharge Elimination System permit to pump polluted water across a levee into the Everglades, where the water is less polluted. [ 11th Circuit opinion] At issue is the definition of “addition” of pollutants to the receiving waters under the federal act. The 11th Circuit held the act was violated here in an analysis that, some critics contend, is so broad that it will require the lengthy, cumbersome and costly permitting process for a wide range of water-management activities. Power struggle Antitrust challenges have been rather rare on the high court’s docket in recent years. Verizon Telecomm. Inc. v. Law Offices of Curtis V. Trinko, No. 02-682, is a hybrid antitrust/telecommunications case. The justices will decide whether purchasers of local telephone service (here the Trinko offices) can bring an antitrust claim against an incumbent local exchange carrier (ILEC) because it failed to provide a competing local exchange carrier (CLEC) with access to local network elements as required by the Telecommunications Act of 1996. [ 2nd Circuit opinion] “This is a major power struggle between the ILECs and the CLECs,” said Englert. “There are lots and lots of CLECs, but the only ones that matter are AT&T and MCI, which are trying to get into the business of providing local telephone service.” The stakes, he added, are “enormous” because of the burden of defending antitrust suits and the threat of treble damages. “Tons” of amicus briefs have been filed, he said, and many by lawyers and economists who have had a major role in shaping monopoly law. Levy said the justices are likely to address key antitrust questions involving antitrust standing, the essential facilities doctrine and the monopoly leveraging doctrine-areas in which “the law is a mess.” The high court has also taken three employment cases so far this term. In Raytheon Co. v. Hernandez, No. 02-749, the company asks the high court whether employers are required by the Americans With Disabilities Act to consider rehearing the case of an employee lawfully terminated for violating the company’s policy against illegal drug use. [ 9th Circuit opinion] Employment litigator Michael Kurs of Pullman & Comley in Hartford, Conn., said, “Even Raytheon appreciates that people who have rehabilitated themselves from their drug use are protected by the ADA. What it’s trying to establish is that, nonetheless, it had a right to impose the sort of discipline that it did”-refusing to consider rehiring the employee). In General Dynamics Land Sys. Inc. v. Cline, No. 02-1080, the high court will decide whether the Age Discrimination in Employment Act permits workers who are at least 40 years old to claim age discrimination when their employer makes benefits decisions favoring its older workers. Dennis Cline sued General Dynamics on behalf of a class of workers who were at least 40 but not yet 50. He alleged that the company’s decision to limit full health care benefits in retirement to employees older than 50 was unlawful age discrimination. The 6th Circuit agreed. [ 6th Circuit opinion] And in Jones v. R.R. Donnelley & Sons Co., No. 02-1205, the justices will examine a circuit conflict over whether state-law or federal-law statutes of limitations apply to a job discrimination suit brought under Section 1981 of Title 42. [ 7th Circuit opinion] Englert noted there are five petitions pending in the court concerning HMOs and pre-emption of medical malpractice claims against them by the federal Employee Retirement and Income Security Act. “Every Supreme Court term has lots of potential,” he added. “This term will not be one of the weak ones. Whether it will be one of the really exciting terms like last term, we don’t know yet.”

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