Yesterday the U.S. Supreme Court concluded its 2008-2009 Term. A week ago the Court decided the last of the five environmental cases it heard this Term. The environmental cases involved issues arising under the National Environmental Policy Act, the National Forest Management Act, the Clean Water Act, and the Superfund legislation. In each of these cases the environment lost. The winners were the U.S. military (Winter v. NRDC), the timber industry (Summers v. Earth Island Institute), electric utilities (Entergy Corp. v. Riverkeeper, Inc.), the mining industry (Coeur Alaska v. Southeast Alaska Conservation Council), chemical companies and railroads (Burlington Northern and Santa Fe Ry. Co. v. U.S.). The losers were marine mammals, the national forests, fish living in proximity to power plants and mines, and taxpayers stuck with paying for cleaning up contaminated land.
When a baseball player goes 0 for 5 he has had a bad day. Usually it is quickly forgotten. Few recall Lou Pinella going 0 for 5 in his final game as a Yankee (though he did get the game-winning RBI by not being doubled up at first on a groundout) or Melvin Mora going 0 for 5 in his first game after becoming the father of quintuplets. But 0 for 5 for the environment in the Supreme Court is not so easily dismissed.
For one thing, five Justices voted against the environment in all five cases. It is not hard to guess who they are – Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito. Of that group, only Justice Kennedy seems persuadable in environmental cases (he provided the crucial fifth vote two years ago in Massachusetts v. EPA, the important climate change case). This year’s result again confirms that if you have an environmental case and Justice Kennedy is not with you, you lose.
Not all of the decisions were 5-4. In fact, Justice Ginsburg was the only Justice to dissent in all five cases. Justice Souter, who has just retired from the Court, dissented in every case except for Burlington Northern where the Court by a vote of 8-1 altered Superfund jurisprudence to reduce the share of cleanup costs paid by companies. Justice Stevens wrote the majority opinion in that case. Justice Stevens, a decorated World War II Naval officer, also partially concurred in the Winter v. NRDC decision that dissolved a preliminary injunction against the Navy’s testing of sonar that could harm marine mammals.
Justice Breyer wrote a strong dissent against the Court’s rejection of an environmental group’s standing to challenge forest management regulations in Summers v. Earth Island Institute. But he joined the majority in both the Burlington Northern Superfund case and the Coeur Alaska decision that allowed a mining company to avoid a prohibition on tailings discharges by characterizing them as “fill” because they will fill a lake and kill all the fish. In two of the other environmental cases Breyer partially concurred, advocating remands to reformulate the injunction restricting sonar testing in Winter and to give EPA a chance to explain its shifting views on cost-benefit analysis when setting effluent limits for cooling intake structures in Entergy.
The Court’s environmental decisions show a strong pro-business tilt among five of the Justices, who are concerned that environmental regulations may be unreasonably stringent. They are joined at times by Justice Breyer who also harbors concerns about overregulation, while expressing sympathy for the goals of the environmental laws. The Court continues to have particular antipathy towards the Ninth Circuit, reversing it in four out of the five environmental cases. In the other case (Entergy) it reversed a decision by the Second Circuit that had been authored by Judge Sonya Sotomayor, President Obama’s nominee to replace Justice Souter on the Supreme Court.
Some have argued that the consistent thread running through the Court’s environmental decisions is deference to the government. However, the government was the loser in the Burlington Northern Superfund case and it unsuccessfully opposed Supreme Court review in both the Entergy and Coeur Alaska cases where the Court ultimately ruled in favor of regulatory changes made by the Bush administration. Thus, the Court is being aggressive in setting its own agenda for what environmental cases it will review. So far the Court has agreed to review only one environmental case in its next Term – a decision by the Supreme Court of Florida upholding a beachfront replenishment law against a regulatory takings claim by landowners (Stop the Beach Renourishment v. Florida Dept. of Environmental Conservation). Few anticipated that the Court would agree to hear this case. Its decision to do so may signal renewed interest in reviving regulatory takings doctrine.
Justice Souter’s retirement is unlikely to change the prospects for environmental interests in the Supreme Court. Justice Ginsburg now becomes the most reliable champion of the environment on the Court, but Justice Kennedy will remain the decisive vote in most cases.