Oral argument at the Supreme Court is much better theater today than it was two decades ago. The Justices then were not nearly as active in asking counsel questions as the Justices of today. Except for Justice Thomas, all of today's Justices are active questioners and they often use oral argument as a vehicle to debate each other. The Supreme Court Justices' questioning during oral arguments provide valuable clues as to how they will vote on a given case. As a result, it has become remarkably easy for those attending oral argument to forecast the outcome of certain cases. Even without attending the argument, it is often possible to predict the vote. The Supreme Court agreed to hear 4 important environmental cases during the current term. ______________________________
Issue Presented: Was the 9th 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 9th 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 (9th 2007) Briefs Available Online at: http://www.abanet.org/publiced/preview/briefs/unscheduled.html#winter
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 (9th Cir. 2006). Briefs Available Online at: http://www.abanet.org/publiced/preview/briefs/oct08.shtml#summers 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 (9th Cir. 2007). Briefs Available Online at: http://www.abanet.org/publiced/preview/briefs/unscheduled.html#coeur
If you wish to predict the outcome of these cases, send your predictions to rpercival@law.umaryland.edu. Predictions will be collected and tallied before the Justices' opinion is published. The winner will be announced on this page shortly thereafter. Thank you for playing "Predict the Supreme Court." | 
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