Recent articles in the National Law Journal, Daily Jorunal, and New York Times, highlight the Roberts Court's record in environmental cases during the October 2008 term. All three articles note that the side favored by environmentalist groups lost in all five environmental cases heard by the Supreme Court this past term. This fact has also been the subject of discussion on the Environmental Law Profs e-mail listserv. 0-5 is certainly a poor record, but what does it mean?
First, it's important to put the five cases in context. These are just five cases, and results from just a single term. It's also notable that only one of the five cases was decided 5-4, and four of the five cases came from -- and reversed -- the U.S. Court of Appeals for the Ninth Circuit. This latter fact could just as easily suggest that the Ninth Circuit is environmentally extreme as that the Supreme Court is hostile to environmental protection or particularly "pro-business" in environmental cases.
The Roberts Court's record in environmental cases is but one piece of the larger narrative that the Court has become significantly more conservative with the confirmations of Chief Justice Roberts and Justice Alito. I've addressed this claim at length before (most recently here), so I won't dwell on it at length. I will note, however, that there is no evidence -- not even from this term -- that Roberts and Alito have made the Court particularly more conservative or pro-business on environmental issues.
The NYT story quotes Temple law prof Amy Sinden saying that the cases this term "could all have come out very differently if we still had O'Connor on the court." This strikes me as absurd. Only one of the five cases, Summer v. Earth Island Institute, was decided 5-4. While it is plausible to argue that Justice O'Connor might have voted in favor to confer standing on the environmentalist plaintiffs in this case, it's hardly a sure thing. She dissented in Lujan v. Defenders of Wildlife, but she joined the majority opinion in the earlier case of Lujan v. National Wildlife Federation and wrote a restrictive standing opinion in Allen v. Wright. I also think that it's highly unlikely that her vote would have differed from Justice Alito's in the remaining environmental cases -- and even then it might not have changed the outcome.
So what should we make of the Roberts Court's record in environmental cases? This past spring I contributed a paper to the Santa Clara Law Review symposium on business and the Roberts Court focusing on environmental cases. In this paper, which was published before the end of the October 2008 term, I noted that if one looks at all of the environmental cases decided by the Roberts Court thus far, there is no reason to conclude that the Court is particularly "pro-business" in these cases -- at least not yet. My article stresses that this is a only a preliminary assessment, and that over time evidence in support of the "pro-business" or "anti-environment" charge may well emerge, but it has not yet.
If one wants to categorize the Roberts Court's record on environmental cases thus far, it seems to me there is a stronger case that the Roberts Court's environmental decisions are more "pro-government" than "pro-business." Since John Roberts became Chief Justice, the Court has decided 10 of its 18 environmental cases in a "pro-business" way. At the same time, the federal government's position has prevailed in 10 of the 15 cases in which it took a position, and government positions prevailed against private challenges in 11 of 16 cases. Further, one of the government's biggest losses was also the biggest business loss -- Massachusetts v. EPA - and that decision will also result in a substantial increase in government regulation.
Eighteen cases is still a very small sample. But if we look at the substance of the individual cases, so as to provide a "qualitative" and not merely quantitative assessment, I think the case for calling the Court more "pro-government" than "pro-business" only becomes stronger. most of the business wins maintained the status quo or affected a very small change in the law. (This term's Superfund decision on "arranger" liability is the notable exception.) The same cannot be said for some of the environmentalist victories. Massachusetts v. EPA is a more substantial environmental victory than the five environmental decisions combined were a loss for environmentalists.
One interesting fact is that the Roberts Court does appear to be more aggressive in accepting cert on environmental cases than one might expect, particularly given the smaller size of the docket. As Georgetown's Richard Lazarus has observed, the Court took several cases in which the Solicitor General's office argued against it (and, in some of those cases, the federal government had lost below). This could be part of the larger move toward taking more business and regulatory cases generally, or something else. I am not sure, but it will be worth watching to see if this trend continues.
A few more qualifications are in order. First, labels like "anti-environment" or "pro-business" are overly simplistic descriptions and tell us little if anything about the legal merits of individual cases. Even a "pro-environment" court may rule against the environmentalist position if their legal case is weak. Second, given the small number of environmental cases heard by the Roberts Court, any assessment is preliminary and subject to revision as the Court hears and decides more cases.
If my assessment that the Court is more "pro-government" than "pro-business" in its environmental cases, than the change in Presidential administration should have an effect. Specifically, if my analysis is correct, then we should see the Court begin to issue more "pro-environment" or "anti-business" decisions as the position of the various agencies and the Justice Department become less business friendly. This is what I would predict based on what we've seen thus far, but we'll have to see. Indeed, now that the Court has taken a potentially significant takings case for next term, and could well take another, I would be happy to see my hypothesis proven wrong, but I won't hold my breath.