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WASHINGTON – 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 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, codirector 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. The justices granted review at the behest of business, even when the U.S. solicitor general recommended denying review. “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. Statisticians would say five cases are too small a sample on which to predict an enduring pro-business trend, said Mr. Cannon, but he added, “It certainly sends a signal.” 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 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. United States). • 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).

“None of the cases individually is a blockbuster, but collectively the Court is chipping away at the very foundations of environmental law in this country,” said Douglas Kendall, president of the Constitutional Accountability Center. John Echeverria of Vermont Law School said the Court’s concern that industry is overburdened by environmental regulations is driving its decisions. “The analysis in Coeur Alaska is expressly based on concerns about burdens on industry and the Court’s reluctance to imagine Congress would have imposed those burdens,” he said. “The Court is almost on a mission. While on the one hand, it has a great deal of concern about burdens on industry, it has expressed very little concern about impacts on the environment.” Mr. Hanson of Beveridge & Diamond, as well as other industry lawyers and some environmental scholars, said the decisions, while pro-business, also could be seen as pro-government. With the exception of the Superfund case, in which the executive branch opposed the industry’s liability argument, they noted that the Court upheld the government’s view. But pro-government is also pro-business because the government’s positions in the cases were formed by the Bush administration, countered Amy Sinden of Temple University James E. Beasley School of Law. “You have Bush administration positions trying to protect corporate interests by weakening environmental protections put in place by Congress,” she said. “The Court’s conservative majority is becoming known for supporting an expansive view of executive power. “The good news for the Obama administration is that, in most of these cases, the Court is essentially saying the executive branch had discretion to use this narrow reading of Congress’ laws,” Ms. Sinden said. That leaves an opening for the administration to read those statutes differently, she added. Russell Frye of Washington’s FryeLaw, who filed an industry-supporting amicus brief in the Entergy case, noted that four of the five cases came from the U.S. Circuit Court of Appeals for the Ninth Circuit, which is “more solicitous” of environmental groups’ views. “I would say the Supreme Court record isn’t so much a reflection of pro-industry bias as it is an environmental-neutral approach to the legal issues presented, Mr. Frye said. @

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