An Increasingly Environmental Term:

The OT 2008 Supreme Court term already had the potential to be quite significant for environmental law with four environmental cases docketed. Then today the Supreme Court added another pair of cases, Burlington Northern and Santa Fe Railway Company, et al. v. United States and Shell Oil Company v. United States, concerning the application of joint and several liability for hazardous waste cleanups under the federal Superfund statute. In particular, the two cases (which are consolidated) concern when liability can be apportioned and when to impose arranger liability, and are potentially quite significant.

These grants come on top of several other environmental cases. Most notably, in Winter v. NRDC, the Court will hear the Bush Administration.’s challenge to a lower court injunction barring the Navy’s use of sonar during certain training exercises for failure to conduct an environmental impact statement despite the Council on Environmental Quality’s determination that “emergency” circumstances justified the failure to conduct an EIS. In another big case, Entergy v. EPA, the Court will consider whether the EPA may consider cost-benefit analysis when imposing regulatory controls on cooling water intake structures under the Clean Water Act. Other environmental cases up this term include Summers v. Earth Island Institute (standing and ripeness to challenge Forest Service regulations) and Coeur Alaska, Inc. v. Southeast Alaska Conservation Council/Alaska v. Southeast Alaska Conservation Council (application of Clean Water Act permitting requirements to deposit of fil material permitted under Section 404).

While none of these cases may be Massachusetts v. EPA-style blockbuster, taken together they could make this term quite significant for environmental law