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Environmental Groups Come up Short in Latest Supreme Court Term

By Katerina Milenkovski, Litigation News Associate Editor – August 13, 2009

The U.S. Supreme Court granted certiorari to five environmental cases during the October 2008 term that just ended, and in all five, the Court ultimately sided with businesses and/or the government and against the environmental groups.

In Entergy Corp. v. Riverkeeper, Inc., the Court ruled 6–3 in favor of electric utilities that argued that the Clean Water Act authorizes EPA to use a cost-benefit analysis when setting national performance standards.

In Winter v. NRDC, Inc., the Court again voted 6–3 to lift an injunction that, among other things, limited the Navy’s ability to use sonar in the presence of marine mammals. The Court held that the lower courts did not give proper consideration to the balance of equities and that the national security interests underlying the Navy’s need to conduct realistic training outweighed the interests advanced by the plaintiffs.

In Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, the Court also voted 6–3 in favor of a gold mine operator who argued that the Army Corps of Engineers, not the EPA, had authority to regulate the dumping of dredge or fill dirt from mining operations.

In the closest decision, Summers v. Earth Island Institute, the Court ruled 5–4 that environmental groups did not have standing to challenge a U.S. Forest Service regulation exempting the service from notice, comment, and appeal processes for fire-rehabilitation and salvage-timber sales. The Court noted that general allegations of harm to the forest or the environment were not sufficient; the respondents had to show harm to the interests of their members.

Finally, in Burlington Northern & Santa Fe Railway, Co. v. United States, the Court ruled 8–1 that Superfund does not mandate joint and several liability but that liability may be apportioned.

“The Superfund case is particularly interesting,” notes Douglas S. Arnold, Atlanta, cochair of the ABA Section of Litigation’s Environmental Litigation Committee.

CERCLA, or the Superfund Statute, was enacted in 1980. Here we have the Court weighing in on what is arguably a very fundamental issue nearly 30 years after the law was enacted,” Arnold says.

“Some might be surprised that only after three decades, and hundreds of millions of dollars of cleanup costs, is this question—whether liability can be apportioned or whether it is joint and several—being addressed,” he says.

As Arnold points out, “this is really the second game-changing decision in recent years, affecting a long-held belief about how the Superfund statute works.”

In 2007, the Court reversed a long-held position of many circuit courts that liable parties were limited to contribution actions under Section 113 of CERCLA and could not pursue cost recovery under Section 107. See United States v. Atlantic Research Corp.

“These five decisions demonstrate the Supreme Court’s willingness to exercise judicial restraint,” says Angela M. Dorrell, Indianapolis, cochair of the Bankruptcy and Environmental Claims Subcommittee of the Section’s Environmental Litigation Committee.

“Whether representative of a stark pro-industry shift or not, these decisions appear to signify the Court’s unmistakable preference to defer policymaking to the elected political branches of government, which could just as easily benefit a progressive administration as a conservative one,” Dorrell says.

“It really is an interesting list of cases,” adds Arnold. “Generally speaking, to have five environmental cases go through the appeal process and be heard in a single term really highlights the breadth and complexity of environmental statutes,” he says.

“Yet, looking at the cases, I don’t think there is an overarching scheme or trend. I don’t think you can take away from these decisions that the court is pro-business or anti-environment,” Arnold says.

Dorrell observes that there is a growing reliance on the Supreme Court Bar—those lawyers who practice almost exclusively before the nation’s highest court.

“These elite advocates specialize in framing the issues in a way that piques particularized interests of the justices, thus increasing the likelihood of getting certiorari or swaying swing votes,” she says.

Arnold agrees. “You absolutely cannot underestimate the importance of how an issue is framed in appellate advocacy,” Arnold says.

“I have heard many circuit court judges make it very clear that how the issue is presented, how the argument is presented, both in writing and oral argument, has a real impact that is independent of the facts and underlying legal issues,” he says.

Keywords: CERCLA, Entergy Corp. v. Riverkeeper, Inc., EPA, environmental law, supreme court, Winter v. NRDC, Inc., Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, Summers v. Earth Island Institute, Burlington Northern & Santa Fe Railway, Co. v. United States



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