CASES TO WATCH

 UPDATE ON ENVIRONMENTAL LAW CASES

BEFORE THE U.S. SUPREME COURT

Listed below are descriptions of the five environmental law cases decided by the U.S. Supreme Court during its 2008-2009 Term and the environmental case on the Court’s docket for the 2009-2010 Term.  Coverage of each of the environmental cases decided by the Court during its 2008-2009 Term (including Coeur Alaska which was decided on June 22, 2009) is included in the 6^th edition of the casebook.

ANALYSIS OF ENVIRONMENTAL DECISIONS DURING THE COURT’S 2008-2009 TERM

During its 2008-2009 Term, the U.S. Supreme Court decided five environmental law cases. The 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.

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.

ENVIRONMENTAL LAW CASES DECIDED DURING THE
SUPREME COURT’S 2009-2010 TERM:

1. Coeur Alaska, Inc. v. Southeast Alaska Conservation Council,
___ S.Ct. ___ (2009)

Decided: June 22, 2009

Opinion available online at: http://www.law.cornell.edu/supct/html/07-984.ZS.html

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 § 404 of the Clean Water Act because it is “fill” or § 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.

Holding:  (1) The U.S. Supreme Court held that the CWA’s language authorizes the Corps to permit the 30% solid waste-comprised slurry discharge under § 404.  The Court reached this holding because (a) § 402 allows the EPA to issue permits for the discharge of any pollutants except as provided by § 404, (b) EPA’s own regulation provides that “fill material” discharges regulated by the Corps under § 404 do not require § 402 permits, (c) the Corps and EPA’s joint regulation defines “fill material” to include “slurry … or similar mining-related materials” that change the bottom elevation of water, and (d) the proposed discharge of slurry into the lake falls well within the Corps’ §404 permitting authority as consisting of “fill material.”

(2) The U.S. Supreme Court also held that the new source performance standards do not apply to “fill material” regulated under § 404.  The Court looked to the text of the CWA and concluded that §§ 306 and 404 were ambiguous on whether § 306 applies to fill material discharges regulated under § 404 because neither provision expressly mentions the other.  The Court also relied on a 2004 internal EPA memorandum explaining that the performance standard does not apply to the initial discharge of slurry into the lake because the memorandum maintains the Corps’ expertise in evaluating fill material consequences, does not allow the discharge of toxic materials into navigable waters, and best reconciles §§ 306, 402, and 404 and the regulations implementing them because a two-permit regime is contrary to those provisions.  The Court construed three of the agencies’ previous published statements as not applying to this specific situation and as consistent with the 2004 memorandum.  Finally, the Court noted two instances in which the Corps issued a § 404 permit authorizing a mine to discharge solid waste as fill material, but none in which EPA applied a performance standard to a fill material discharge.

2. Burlington Northern & Santa Fe Railway Co. v. United States,
129 S.Ct. 1870 (2009)

Decided: May 4, 2009

Opinion Available Online at: http://www.law.cornell.edu/supct/html/07-1601.ZS.html

Issue Presented: Is Shell Oil Company liable for cleanup costs as an arranger of the disposal of hazardous substances under CERCLA through its sale and delivery of chemicals, many of which leaked and spilled during deliveries, and as a result of equipment failures, to the knowledge of Shell?  And, if so, what is its share of liability for cleanup costs relative to that of the owners of the contaminated site?

Holding:  (1) The U.S. Supreme Court held that Shell is not liable as an arranger for the contamination at the facility.  To qualify as an arranger, Shell must have intended that at least a portion of the product be disposed of during the transfer process by one or more of CERCLA §6903(3)’s methods.  The evidence shows that Shell was aware that minor, accidental spills occurred during transfer from the common carrier to the storage tanks after the product had come under the chemical distributor’s stewardship; however, it also reveals that Shell took numerous steps to encourage its distributors to reduce the likelihood of spills.  Thus, Shell’s mere knowledge of continuing spills and leaks is insufficient grounds for concluding that it “arranged for” the chemical’s disposal.

(2) The Court also held that the District Court reasonably apportioned the liability of the owner of a portion of the contaminated parcel, the Railroads, at 9% of remediation costs based on: (a) the percentage of the total area of the facility that was owned by the Railroads, (b) the duration of the chemical storage and distribution business at the facility divided by the term of the Railroads’ lease, and (c) the court’s determination that only two other polluting chemicals, not the chemical in question, spilled on the Railroads’ leased parcel and that those chemicals were responsible for roughly two thirds of the remediable site contamination.

 3. Entergy Corp. v. Riverkeeper, Inc.,129 S.Ct. 1498 (2009)

Decided: April 1, 2009

Opinion Available Online at: http://www.law.cornell.edu/supct/html/07-588.ZS.html

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

Holding: The U.S. Supreme Court held that the EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards.  The agency’s view that the Act’s “best technology available for minimizing adverse environmental impact” standard permits consideration of the technology’s costs and of the relationship between those costs and the environmental benefits produced governs if it is a reasonable interpretation of the statute, although not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts.  The Second Circuit interpreted “best technology” to mean the technology that achieves the greatest reduction in adverse environmental impacts  at a reasonable cost to industry, but according to the Supreme Court it may also describe the technology that most efficiently produces a good, even if it produces a lesser quantity of that good than other available technologies.  The Court found that this reading is not precluded by the phrase “for minimizing adverse environmental impact,” which admits of degree and is not necessarily used to refer exclusively to the “greatest possible reduction.”  According to the Court, the Act’s language suggests that the EPA has some discretion to determine the extent of reduction warranted under the circumstances, plausibly involving a consideration of the benefits derived from reductions and the costs of achieving them.  The EPA’s interpretation of the Act is reasonable and hence a legitimate exercise of its discretion.  Finally, the Court determined there is no statutory basis for limiting the comparison of costs and benefits to situations where the benefits are de minimis rather than significantly disproportionate.

4. Summers et al. v. Earth Island Institute, 129 S.Ct. 1142 (2009)

Decided: March 3, 2009

Opinion Available Online at: http://www.law.cornell.edu/supct/html/07-463.ZS.html

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?

Holding: The U.S. Supreme Court held that plaintiffs lack standing to challenge the regulations still at issue absent a live dispute over a concrete application of those regulations.  After voluntarily settling the portion of their lawsuit relevant to the site upon which the challenge is based, the environmentalist organizations and their members are no longer under threat of imminent or concrete injury from the challenged regulation.  According to the Court, a procedural injury, i.e. that plaintiffs have been denied the ability to file comments on some Forest Service actions and will continue to be so denied, fails because such deprivation without some concrete interest affected thereby is insufficient to establish standing.

5. Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008)

Decided: November 12, 2008

Opinion available online at: http://www.law.cornell.edu/supct/html/07-1239.ZS.html

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.

Holding:  The U.S. Supreme Court vacated the preliminary injunction prior to the Navy’s completion of an EIS with regards to the two of the District Court’s six conditions the Navy objected to because the Navy’s need to conduct realistic training with active sonar to respond to enemy submarine threats strongly outweighs other public interests.  The Court explained that it requires plaintiffs seeking preliminary injunctions to demonstrate that irreparable injury is “likely” and not merely “possible” in the absence of an injunction.  The Court failed to reach the question of whether plaintiffs demonstrated such likelihood with respect to the 37 species of marine mammals in southern California waters where the Naval training was occurring because of the incredible importance of national defense.  The Court found conclusive the Navy’s senior officers’ professional judgment that the enemy submarine threat necessitates realistic sonar training without the two objected-to conditions.  The Court found that regardless of the frequency of marine mammal sightings, one condition of the injunction will increase the radius of the shutdown zone by 2,000 yards and each additional shutdown can result in the loss of several days’ worth of training.  The Court declined to enforce the second condition of reducing the sonar by 6 decibels during “surface ducting,” tacitly deciding that the rareness and unpredictability of surface ducting makes training under these conditions more critical.  The Court declared that the Navy need not wait until it is unable to train sufficiently before seeking dissolution of the preliminary injunction.

ENVIRONMENTAL LAW CASES TO BE HEARD
DURING THE SUPREME COURT’S 2009-2010 TERM:

Stop the Beach Renourishment v. Florida Department of
Environmental Conservation, No. 08-1151.

Issue Presented: Did the Florida Supreme Court’s decision to approve the Florida Beach and Shore Preservation Act to unilaterally restore eroded beaches and modify constitutional littoral property rights without a judicial hearing or the payment of just compensation constitute a “judicial taking” and a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?  The Florida Supreme Court rejected the property owners’ claim that the legislation, which gives the state title to land created through public beach replenishment efforts, constitutes a regulatory taking by depriving upland property owners of their common law littoral rights of accretion and reliction, which ensure their property will have water contact, because it protects their littoral right of water access.  Walton County v. Stop the Beach Renourishment, 998 So. 2d 1102, 1120-21 (2008).

Opinion below: http://www.floridasupremecourt.org/decisions/2008/sc06-1447.pdf

Petition for certiorari: http://www.scotusblog.com/wp/wp-content/uploads/2009/06/08-1151_pet.pdf

Respondents’ Briefs: http://www.scotusblog.com/wp/wp-content/uploads/2009/06/08-1151_bio_fla.pdf; http://www.scotusblog.com/wp/wp-content/uploads/2009/06/08-1151_bio_walton.pdf.

Petitioner’s Reply: http://www.scotusblog.com/wp/wp-content/uploads/2009/06/08-1151_cert_rep.pdf

Amicus curiae Brief: http://www.scotusblog.com/wp/wp-content/uploads/2009/06/08-1151_cert_amicus_plf.pdf