OT 2006: An Environmental Term?

The Supreme Court's current term is already sure to be an big one for environmental law. Two major Clean Air Act cases, Massachusetts v. EPA and Environmental Defense v. Duke Energy, should yield important environmental decisions and more may be on the way. As Marty Lederman details on SCOTUSBlog, the Solicitor General has recently filed petitions for certiorari in four environmental cases, including another Clean Air Act case, and has acquiesced to certiorari in two others. Adding just a few of these cases to the Court's dockets would make this a truly major environmental term.

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Of the six cases in which the SG is seeking review or acquiescing in cert, four are from the Ninth Circuit. Like the SG's petitions, the dissents (one by Kozinski for six judges on a petition for en banc review) suggest that the Ninth Circuit is off pursuing an interventionist agenda in these cases. One of the dissents says that the Circuit's standard of review effectively demands that the court be deemed to be a participant in a dialogue with the agency's experts, as if all were sitting around the same table hashing out the merits of the competing scientific claims. From a quick skim, the main issue seems to be whether the circuits gave proper deference to the agency's expertise as well as the Court's limited function in reviewing agency decisionmaking. Thus the SCOTUS (if it takes the cases) will be elaborating on already well settled principles that, for their own reasons, a majority of the Ninth Circuit judges prefer not to follow. The whole thing has that "been there, done that" feel to it, but given the persistence with which the Ninth Circuit majority insists on going its own way, it looks like another round of an all-too-familiar dance is in the offing.
12.27.2006 11:15am