High court losses stun environmentalists

Environmentalists are 0-for-5 at the high court this term.

Marcia Coyle

June 29, 2009

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 just 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, co-director 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 in all five cases. The justices granted review at the behest of business, even when the solicitor general of the United States recommended denying review. "They were all victories below for environmentalists, so 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.

Business' remarkable record may be due in part, Lazarus suggested, to the entry this term of the private sector Supreme Court bar on behalf of business interests in environmental cases, including such well-known, repeat players as former Solicitor General Theodore Olson of Gibson, Dunn & Crutcher and Maureen Mahoney of Latham & Watkins. "In each of these cases, business turned not to the usual retinue of environmental legal experts, but to expert Supreme Court advocates," said Lazarus, who has studied the influence and effectiveness of those appellate practitioners.

Statisticians would say five cases are too small a sample on which to predict an enduring pro-business trend, said Virginia's 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 major 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. U.S.).

• 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. "I think that's the overriding theme of the Court this term in these cases. 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."

Beveridge & Diamond's Hanson, as well as other industry lawyers and some environmental scholars, said the decisions, while undoubtedly 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 in these cases.

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 and you see it playing out here.

"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," she said. "That leaves an opening for the Obama administration to read those statutes differently."

REVERSING THE 9TH CIRCUIT

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. Court of Appeals for the 9th Circuit, which is "more solicitous" of environmental groups' views. "I think that's inconsistent with the majority of the Supreme Court these days," Frye said. "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."

While disagreeing on the Court's motivation in the five cases this term, the business and environmentalists generally agree on which decisions will have the most impact.

Hanson, Frye and other industry lawyers point to the Superfund ruling that limited so-called "arranger" liability and opened up the use of apportionment of cleanup costs among responsible parties in lieu of joint and several liability.

The decision has already "triggered an explosion" of apportionment arguments, said Hanson, who handles Superfund cases across the country. "This is another opportunity, particularly in difficult economic times, to try to cut your costs."

Georgetown's Lazarus and Vermont's Echeverria said the decision undermined a "cardinal part" of the Superfund law — routine joint and several liability. "The message of that decision is liability can be and should be routinely contested," said Echeverria. "The only saving grace is the Superfund program is very mature and has accomplished a lot of its work in the last couple of decades."

Both sides also pointed to the Summers decision, in which the court narrowed the standing of environmental groups to challenge the failure of agencies to follow procedures or rules.

"That may be a substantial reduction in the scope of standing from what many of us thought it was," said industry counsel Frye. "There will be some precedent interpreting it soon. I know I'm using it now in one or two of my cases."

Environmentalists called Summers "bad" on standing. "It illustrates a profound disagreement between the ideological wings of the court about access to courts," said Kendall, adding that Chief Justice John Roberts Jr. "views cutting back on standing as a central pillar of his idea of judicial restraint."

Going forward, the Supreme Court is not a place where environmentalists want to be, said Echeverria. But if they do go there, a number of their lawyers said, it is time to follow the successful playbook of industry this term and get their own Supreme Court practitioners. Latham's Mahoney argued two of industry's cases; Gibson Dunn's Olson and Kathleen Sullivan of Quinn Emanuel Urquhart Oliver & Hedges each argued one.

Carla Herron, associate general counsel for Shell Oil Co., which hired Sullivan for its Superfund case, said, "given the significance of this case, we wanted to retain someone who is an accomplished U.S. Supreme Court advocate and an experienced 9th Circuit practitioner."

The lesson, said one environmentalist who asked for anonymity, is: "We can't be letting the line litigators litigate cases before the Supreme Court. This has become a practice where you need repeat players before the Court."

Marcia Coyle can be contacted at marcia.coyle@incisivemedia.com.