CASES TO WATCH

During its 2008-2009 Term, the U.S. Supreme Court will be deciding several important environmental cases, including two sets of cases involving the Clean Water Act, the government’s appeal from a NEPA injunction preventing the Navy from conducting certain sonar tests, and a case concerning the standing of environmental groups to challenge forest sales.  As discussed in Chapter 2 of this Teacher’s Update, the Second Circuit still has not decided Connecticut v. American Electric Power, the appeal of the dismissal on political question grounds of a global warming nuisance suit by several states against utilities operating coal-fired power plants.

Environmental Cases to be Heard by the U.S. Supreme Court

      1.   Winter v. Natural Resources Defense Council, No. 07-1239

Issue Presented: Was the 9^th Circuit correct in sustaining a district court’s issuance of a preliminary injunction against the Navy’s use of mid-frequency active (MFA) sonar during training exercises for failure to comply with the National Environmental Policy Act (NEPA)?  In an effort to exempt the exercises from NEPA’s requirement that an environmental impact statement be prepared, the President determined that the exercises were “essential to national security” and the Council on Environmental Quality (CEQ) found that “emergency circumstances” exist.  However, the 9^th Circuit upheld the district court’s conclusion that no “emergency circumstances” were present and affirmed the injunction.

Oral Argument Scheduled for: 10AM on Wed. October 8, 2008

Opinion Below Reported at: 518 F.3d 658 (9^th 2007)

Briefs Available Online at: http://www.abanet.org/publiced/preview/briefs/unscheduled.html#winter

     2.   Summers v. Earth Island Institute, No. 07-463

Issue Presented: Can a facial challenge to the legality of procedural rules issued by the U.S. Forest Service to exempt some of its proposed actions from notice-and-comment and administrative-appeal requirements survive the settlement of a site-specific challenge to an action taken pursuant to those rules? Do plaintiffs have standing and are their challenges to the rules reviewable and ripe?

Oral Argument Scheduled for: 11AM on Wed. October 8, 2008

Opinion Below Reported at: 490 F.3d 687 (9^th Cir. 2006).

Briefs Available Online at: http://www.abanet.org/publiced/preview/briefs/oct08.shtml#summers

      3. Entergy Corp. v. EPA, No. 07-588, PSEG Fossil LLC v. Riverkeeper, Inc., No. 07-589, and Utility Water Act Group v. Riverkeeper, No. 07-597 (consolidated cases)

Issue Presented: Whether Section 316(b) of the Clean Water Act authorizes EPA to use cost-benefit analysis in determining the “best technology available for minimizing adverse environmental impact” for existing cooling water intake structures.

Oral Argument Scheduled for: TBA

Opinion Below Reported at: Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d Cir. 2007).

Briefs Available Online at: http://www.abanet.org/publiced/preview/briefs/unscheduled.html#entergy

            4. Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, No. 07-984 and Alaska v. Southeast Alaska Conservation Council, No. 07-990 (consolidated cases)

Issue Presented: Is the discharge of tailings-laden liquid waste from a mine into a lake where the tailings will be impounded by a dike causing a 50-foot rise in a portion of the lake bottom subject to Section 404 of the Clean Water Act because it is “fill” or Section 402 of the CWA because it is the discharge of a pollutant? The Ninth Circuit agreed with environmental groups that it  would constitute a discharge of pollutants requiring a permit under §402, rather than “fill” subject to §404.

Oral Argument Scheduled for: TBA

Opinion Below Reported at: Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 486 F.3d 638 (9^th Cir. 2007). 

Briefs Available Online at: http://www.abanet.org/publiced/preview/briefs/unscheduled.html#coeur