At the end of every year, it is worthwhile to evaluate the decisions of the highest court in the land. In 2009, there have been several disappointing decisions by the U.S. Supreme Court. Several of these rulings will adversely impact environmental law and environmental protection, including decisions related to standing, fifth amendment takings claims, and the authority of agencies like the EPA to protect the environment. But on a brighter note, this past year also saw the addition of a promising new associate Justice: Sonia Sotomayor, formerly of the Second Circuit Court of Appeals.
The Court’s First Term –Big Cases, Big Losses for Environmentalists
The Court’s 2009 term was a humbling one for environmentalists—or, as the New York Times describes it, “Environmental interests were trounced” in 2009 In almost all of the major environmental cases decided in the 2009 session, the environmental parties lost. Just to point out a few…environmental plaintiffs lost a challenge that would have protected endangered whales from military training exercises; the Court found new protections for violators of CERCLA, the federal law governing the cleanup of hazardous wastes; and another ruling will make it easier for polluters to foul the Alaskan sea.
But among the most consequential rulings was one that will allow the EPA to use a cost-benefit analysis when determining which measures companies must implement to protect the environment. Entergy Corp. v. Riverkeeper. Cost-benefit analyses vis-à-vis environmental protection are sometimes troubling; while the effect of this case has not yet been felt, the decision could set a precedent allowing industry to avoid implementing advanced pollution control technologies because of their high cost.
The Court also decided a case that may make it more difficult for citizens to challenge agency decision making. Summers v. Earth Island Institute was a case in which citizens challenged changes to the notice and comment procedures of the U.S. Forest Service. But the major legal issue became whether the citizens even had standing to participate in the case. The Forest Service had argued that the plaintiffs had not proven that they had suffered a “concrete harm” or shown a direct stake in the outcome of the case sufficient to allow them to sue. In a 5-4 decision, the Court denied standing to the citizens, preventing them from challenging the actions of their government.
Decisions such as Summers that limit the right of the public to challenge decisions or enforce environmental laws are especially dangerous in our democracy. A strict interpretation of citizen standing requirements, such as the one articulated by Justice Scalia in Lujan v. Defenders of Wildlife, makes it more difficult for citizens to challenge actions that harm the environment. For example, Justice Scalia’s narrow view of standing—which requires a plaintiff to make a stringent showing of direct, individualized, and substantial harm—would prohibit a myriad of citizen and environmental organizations (such as the OEC) from suing violators of federal environmental laws like the Clean Air Act or the Clean Water Act.
Despite one of the most disappointing years in recent memory, there is at least one bright spot for environmentalists: Justice Sonia Sotomayor. In each case in which she participated, Sotomayor sided with the environmental cause. Sotomayor has also proven herself to be an active questioner in oral arguments, and her sharp legal mind will be a valuable addition to the Court for decades to come.
Outlook for 2010: A ‘Stalemate’ at Best, With the Climate Change Being the Big Unanswered Question
The fundamental makeup and decision making of the Court is unlikely to change in 2010. Four Justices—Breyer, Ginsburg, Stevens, and Sotomayor—are likely to vote to uphold citizen standing and allow administrative agencies to exercise broad powers to protect the human health and the environment. Conversely, another bloc of four—Justices Scalia, Thomas, Alito, and Chief Justice Roberts—will take an opposite approach, voting to limit citizen standing, to decrease the power of administrative agencies to protect citizens, and uphold private property rights at the expense of public health and environmental protection.
Because each bloc—sometimes referred to as the “liberal” and “conservative” wings of the Court—will cancel out the other, moderate Justice Anthony Kennedy will continue to hold immense power. Kennedy has a mixed record on environmental decisions; while he sided with the majority in the landmark 2007 decision Massachusetts v. EPA and has often shown an independent streak, he appeared to move closer to the conservative wing of the Court in 2009.
The biggest challenge lurking for 2010 will likely be climate change, and Kennedy’s swing vote would be tested in litigation on this issue. The EPA has recently found that global warming pollutants such as carbon dioxide constitute a danger to public health, and the agency is preparing to implement rules regulating these pollutants under the Clean Air Act. Although President Obama has said that he would prefer Congress to pass climate legislation, his EPA appears ready and willing to regulate greenhouse gases in the event that Congress fails to act.
Rulemaking by the EPA would almost certainly be challenged on a number of grounds. Most importantly, such a suit would test the fragile majority in Massachusetts v. EPA, a 2007 in which the Court held that the EPA does have the authority to regulate carbon dioxide and other climate change pollutants through under the Clean Air Act. That decision was a 5-4 vote, with Kennedy’s being the decisive one. Finally, even if Congress does pass one of the climate bills currently being debated, the constitutionality of that legislation would be challenged on a myriad of legal grounds.
In sum, in 2010 environmentalists should watch the Court—and Justice Kennedy—with bated breath.