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CRC In The News


Justices to ponder imperiled species


National Law Journal
April 19, 2007

Marcia Coyle, Staff Reporter


WASHINGTON -- The Pima pineapple cactus and the Huachuca water umbel, both endangered species, may capture neither the passion nor the attention of the nation and the U.S. Supreme Court in the way that global warming does. But they will anchor an extraordinary relay of environmental cases in the nation's high court this term as the justices wrap up their argument docket.

The flowering, prickly cactus and the bright green, leafy umbel that peeks above shallow waters may be apt metaphors for the general treatment of the business and environmental communities, often adversaries, in the Supreme Court.

Although April 2 was a landmark day in the high court for environmentalists demanding stronger Clean Air Act enforcement in the fight against global warming and polluting coal-fired power plants, the 5-4 climate-change ruling also was a reminder of how sharply divided the Roberts Court is on the "fundamental issues" underlying environmental law, said Douglas Kendall, executive director of Community Rights Counsel, a nonprofit, public interest law firm.

"Certainly one vote, either way, could have a momentous impact," noted Kendall.

The court's close division on environmental issues predates the appointments of Chief Justice John G. Roberts Jr. and Associate Justice Samuel A. Alito Jr., but those appointments did not tip the balance, said John Echeverria, executive director of the Georgetown Environmental Law & Policy Institute at Georgetown University Law Center.

"They may have a long-term impact but they haven't so far because of [Justice John Paul] Stevens' leadership and [Justice Anthony M.] Kennedy's voting pattern," he said.

It's too early to discern any trends in the Roberts Court on environmental issues, said Echeverria and others, although, they agree, the views of Roberts and Alito on standing, as expressed in the global warming decision, are potentially very damaging to the ability of environmental groups to bring their lawsuits.

"So far the headline on recent environmental cases in the Supreme Court is Justice Stevens and his success in putting together coalitions to support the environmental position," said Echeverria.

But a tenuous success, scholars and litigators agree. Environmentalists still must "hold their breath" when the court takes up these cases, said Holly Doremus of the University of California, Davis School of Law, and hope the justices "don't grant cert" in a lot of them.

The high court has taken seven environmental cases in the current term, constituting 10% of its docket. Of the seven, five may be viewed as "straight" environmental law cases and two are "mixed," involving the interplay of nonenvironmental statutes.

Of the total, the justices have decided three: two Clean Air Act cases - Massachusetts v. EPA, No. 05-1120, the 5-4 ruling rejecting the Environmental Protection Agency's position that it had no authority to regulate greenhouse gases, and Environmental Defense v. Duke Energy, No.
05-848, a unanimous decision requiring permits for modifications to aging coal-fired plants. The third decision, in a "mixed" case, stemmed from a whistleblower suit concerning pollution at the Rocky Flats nuclear weapons
plant: Rockwell International Corp. v. U.S., No. 05-1272, a 7-2 decision imposing tougher requirements for whistleblower recoveries under the False Claims Act.

The term's large environmental docket, suggested Echeverria, may be a reaction, in part, "to the perceived extremism of the Bush administration on environmental issues."

The majority opinion in the global warming decision, he said, "certainly suggests a majority of justices thought the Bush administration was out of step with scientific and public opinion on this issue."

Reversing trends

Some experts agree, noting the justices granted review this term in both Clean Air Act cases over the objections of the Bush administration - the first such grants in decades. The Duke Energy grant was the first grant in
35 years in which the sole petitioner was an environmental group (Environmental Defense).

But the large number of cases may also be fallout from gridlock in Congress in revising federal environmental laws, according to environmental law scholar Robert Percival of the University of Maryland School of Law. Various groups, he said, turn to the courts for interpretations or to seek "creative" loopholes.

Percival believes the sharp split on the court in the "fundamental"
environmental cases, such as global warming, is due to the group of justices that insists on the traditional common law approach to litigation: A sues B for a direct injury caused by B for which there is a remedy.

"The fact of the matter is: These statutes shifted away from that approach and Congress said 'Let the expert administrative agencies engage in preventative regulation,' " he said.

"You see a group of justices hostile to that and another group that sees that's essential to protecting the environment in the future."

The common-law approach is demanded by Roberts, Alito, Antonin Scalia and Clarence Thomas, he said. The other group includes Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Kennedy is in the middle.

Standing is one issue that triggers the split, said Percival. That was starkly revealed in the global warming decision in which Stevens, with Kennedy's vote, articulated a special standing for states and a broader, somewhat relaxed standard for redressing the injury.

That approach, say environmental litigators on both sides, will make it easier for states and private litigants to bring claims involving climate change as well as other issues.

"The majority really pushed the envelope," said William M. Bumpers, head of the global climate group at Baker Botts, at a recent panel discussion on the decision. The environmental community, he said, has a "new quiver of arrows"
to raise challenges.

The Roberts dissent on standing in the global warming case, added Percival, also shows that Roberts and Alito, who joined him, are more to the right of the justices they succeeded on this issue.

In a major environmental standing decision in 2000, Chief Justice William H.
Rehnquist and Justice Sandra Day O'Connor were members of the 7-2 majority (Scalia and Thomas dissenting) that relaxed requirements for citizen suits, he noted. Roberts' dissent in the climate case, he said, makes clear he subscribes to Scalia's views.

Despite the Stevens majority in that case, Percival added, "The court is much closer to going back to a restrictive view of standing. The next vacancy will be critical to the ability of environmental litigants to get into court."

Kendall of Community Rights Counsel sees the court's split similarly.

"There's a set of environmental issues upon which the two wings of the courts have fundamentally different viewpoints," he said. "Scalia starts from the premise the founders would have a hard time imagining the modern regulatory state and sympathizes with industry subject to control of federal bureaucrats. Stevens sees the environment as the quintessential problem that transcends state boundaries and requires a federal response."

Those conflicting viewpoints play out in cases involving the scope of environmental statutes and in constitutional questions, such as the takings clause in property rights cases, he said.

"There is another set of issues that the court seems to treat as administrative law or statutory interpretation, as in the Duke Energy case, and those questions aren't divisive at all," Kendall said.

Yet to come

So where will the final two environmental cases of the term fit? April 17 is the scheduled date for arguments in EPA v. Defenders of Wildlife, joined with National Home Builders Assn. v. Defenders of Wildlife, nos. 06-549, O6-340 - which lie at the intersection of the Clean Water Act and the Endangered Species Act.

The 9th U.S. Circuit Court of Appeals, acting in a suit by Defenders of Wildlife, held that the EPA had a statutory duty under Section 7 of the Endangered Species Act (ESA) to consider jeopardy to endangered species, such as the Pima pineapple cactus, in making its decision to transfer authority over a Clean Water Act permitting program to the state of Arizona.
The EPA had argued that it lacked authority to consider the impact on species even though the U.S. Fish and Wildlife Service issued an opinion saying the transfer would have a negative impact on listed species.

"The underlying issues are of capital importance because they not only apply to permitting but also to Section 7 consultations going on in the Pacific Northwest over reclamation and federal dam projects," said Damian Schiff, staff attorney with the Pacific Legal Foundation, which supports the EPA in the case.

"If the rule announced by the 9th Circuit holds up, you could argue it doesn't matter if legislation for a particular project is silent as to environmental concerns," he said.

"The ESA would be read as silently amending those laws," he said.

But the court could "duck" the merits because it added a question for the parties on whether the issue should return to the EPA on the ground that it was inconsistent in its justifications for what it did, said Doremus of the University of California, Davis School of Law.

"If it gets into the meat of the case, it could say a lot about how broad Section 7 is, and, in that sense, the case is potentially the most important ESA case since TVA v. Hill in 1978, the snail darter case," she said, explaining that in Hill, the court said the ESA required a halt to the construction of a federal dam even though the dam was almost finished and planning predated the ESA.

The court also hears arguments on April 23 in U.S. v. Atlantic Research Corp, No. 06-562. Atlantic Research polluted an Arkansas site for several years when it retrofitted rocket motors for the federal government. The company voluntarily cleaned up the contamination, then sought to recover a portion of its costs from the United States.

The Superfund statute - the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) - permits a party that is liable for contamination to seek contribution from any other responsible party.

In 2004, the Supreme Court held if a party had not previously been sued for cleanup of a site or for cost recovery under CERCLA, it could not sue for contribution under Section 113(f) of the act. However, the court did not decide whether a party could recover under CERCLA Section 107, which Atlantic Research now asks the court to decide.

An unusual coalition of environmental and business groups and 41 states are supporting Atlantic Research, noted Steven Jones of the Marten Law Group, an environmental law firm in Seattle.

"If you can't voluntarily clean up a site and know you can recover other people's proportionate liability, you have no incentive to do anything until the federal government sues you," Jones said.

"That really stymies how the statute was set up to work."


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