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
Related Posts (on one page):
- An Increasingly Environmental Term:
- Court Adds Ten More Cases to the OT08 Docket:
Of course the Russians, Iranians and Chinese will no doubt follow that particular penumbra's emanation in deference to the whales that are still being slaughtered by numerous other countries, and follow the lower court's environmentalism.
The commander in chief is subject to the laws of Congress, which has the power to make rules for the military. So clearly if Congress passes a law that prohibits the use of sonar where the commander in chief wants to use it, he's stuck.
The question in the case is whether the environmental laws of the US essentially did that. It's a statutory interpretation issue (with the backdrop of how clear Congress' statements have to be in this matter). The commander in chief power, however, has little to do with the case, because even as commander in chief, the President is subordinate to the laws.
As an originalist, I say give all sonar operations to the Air Force, since Congress can't make rules that limit it, right?
Unfortunately, then you would need an amendment to appropriate funding for the USAF in the first instance.
1) can be held responsible for something he didn't do. For example, if you own land that someone else dumps on.
2) be held responsible for something that, when he did it, wasn't against the law.
Yet both happen all the time under the environmental laws.