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Is the Roberts Court "Anti-Environment"?

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.

martinned (mail) (www):

Massachusetts v. EPA is a more substantial environmental victory than the five environmental decisions combined were a loss for environmentalists.

That depends on how you look at it. From a legal point of view, that's certainly true. But from an environmental POV, I think Mass v EPA will matter little, while the Coeur Alaska case alone will result in the

discharge [of] 210,000 gallons per day of mining waste into Lower SlateLake, a 23-acre subalpine lake in Tongass National Forest. The "tailings slurry" [will] contain concentrations of aluminum, copper, lead, and mercury. Over the life of the mine, roughly 4.5 million tons of solid tailings [will] enter the lake, raising the bottom elevation by 50 feet. It is undisputed that the discharge would kill all of the lake's fish and nearly all of its other aquatic life.

(Quoting the dissent by Justice Ginsburg, p. 1)
7.5.2009 4:24pm
rosetta's stones:
I agree, martinned. We are on the verge of wasting literally trillions of dollars regulating CO2, something that Mass. case has helped grease the skids for, with little or no environmental benefit resultant. There will be no gain here.

I'm not overly concerned with one little 23 acre "lake", depending on what is discharged from that lake as a result of the tailings slurry. But if unacceptable metals concentrations are discharged from that lake, we're better off spending some of the global warming wasted money on mediating in that situation, rather than wasting money on CO2 as a "pollutant". We would actually see a benefit from the money, at least.
7.5.2009 4:57pm
martinned (mail) (www):
@rosetta's stones: I wouldn't want to be on record denying the importance of doing something about CO2 emissions. My point was merely that Mass v EPA is only a small step towards a comprehensive global approach to the problem.

P.S. Not being American, I wouldn't for the life of me be able to say whether an acre is closer to the size of a football field or a stamp. (Square feet is easier, since the number of feet in a meter is quite close to the square root of 10. Roughly 10 sq. ft in a square meter. Unfortunately, that only helps with appartment hunting.)
7.5.2009 5:27pm
MCM (mail):
An acre is about 63m x 63m, I believe.
7.5.2009 5:38pm
rosetta's stones:
I wouldn't want to be on record denying the importance of doing something about CO2 emissions. My point was merely that Mass v EPA is only a small step towards a comprehensive global approach to the problem.

My scant review of the data shows that it's so small a step that it may be non-existent, which is a good thing, because AGW appears to be non-existent.

It will be a costly step, however, and thus a proper value engineering process, applied to enviromental issues, puts the little pond and others like it on a far higher plane than the SC and others think deserving. They find AGW sexier, it appears, however wasteful and costly.

This is what happens when you put technically illiterate lawyers on the bench, martinned (to grind my little axe again).
7.5.2009 5:39pm
MQuinn (www):
I disagree with the statement that only one of these five opinions was close, and I disagree that it is "absurd" to suggest that O'Connor's presence would not have altered at least some of these cases.

In Entergy Corp. v. Riverkeeper, Justice Breyer concurred in part and dissented in part. He was not willing to go nearly as far as the majority opinion (which was joined in full by only the five conservative justices). This opinion is best characterized as 5-1-3, and was a closer case than Adler's post impliedly suggested.

Further, the presence of Justice O'Connor -- who, like Breyer, had a penchant for compromise -- might very well have flipped the result of this close opinion.
7.5.2009 7:17pm
byomtov (mail):
Roughly 10 sq. ft in a square meter.

Closer to eleven. It's 10.76. Your US apartment is smaller (in sq. meters) than you think it is.
7.5.2009 7:25pm
[insert here] delenda est:

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.

Surely a government must have won somewhere in there...
7.5.2009 7:48pm
Jonathan H. Adler (mail) (www):
MQuinn --

The statement I said was absurd was that the five cases "could all have come out very differently if we still had O'Connor on the court." Even if she would have voted differently in all five cases -- which is exceedingly unlikely -- and changed the outcome in Summers and Entergy and Winter (another 5-1-3 decision), this would would not have changed the outcome in Couer Alaska and the Superfund cases. To specualte that she might have changed the outcome in a 5-4 or 5-1-3 decision is one thing; to suggest she could have altered the result of an 8-1 decision is, as I said, "absurd."

JHA
7.5.2009 7:53pm
DDI:
Just because an "environmental" group is in favor of a ruling doesn't mean it's actually good for the environment. Their advocacy is often rife with scientific illiteracy, and seems to be based more on telling people what to do than actually benefitting the environment. However, the govt is actually more clueless. I also take business's view of the environment with a grain of salt.
7.5.2009 8:16pm
Mark N. (www):
DDI: sounds like you regret that there isn't some way all three of those interests can lose? =]
7.5.2009 8:31pm
Doc Merlin:
I agree, as the state's case and stance is significant to the court's final decision. For example if the DOJ decided that it was pro-gun and decided to not contest the Heller decision or to put a much weaker defense, I believe the final decision would have been more pro-gun than heller was. This is natural, in an adversarial court system, the court can never be wholly independent from the executive.
7.5.2009 8:54pm
martinned (mail) (www):

This is natural, in an adversarial court system, the court can never be wholly independent from the executive.

That's true in trial court, but in the appellate courts, only to the extent that there is no other advocacy. Heller had a whole library full of amicus briefs, the whole gamut of opinion was adequately represented, not in the least by the justices themselves. In such cases, the only reason why it matters particularly what the SG thinks is because some of the justices might be particularly inclined to give the government what it wants.
7.5.2009 9:00pm
David Starr (mail) (www):
The Massachusetts vs EPA case, where it was decided that CO2 is a pollutant and the EPA can regulate it, is a huge win for the "environmentalists". In one court ruling a law written to reduce smog was enlarged to regulate virtually all economic activity in the country. Compared to that, the other cases are trivial.
7.5.2009 11:45pm
A. Zarkov (mail):
martinned:

"P.S. Not being American, I wouldn't for the life of me be able to say whether an acre is closer to the size of a football field or a stamp."

As you are posting here you must have access to the internet. So just type "1 acre=" into Google and presto you get
1 acre = 4 046.85642 m2
You don't have to be an American to run Google. As you obviously have excellent English skills, everything on the Internet should be just as available to you as any American.
7.6.2009 2:32am
A. Zarkov (mail):
martinned:

As a better alternative to using Google to do a conversion use Wolfram Alpha. Then you can type in "23 acres in hectares" and get 9.308 hectares.

Wolfram Alpha can do even more esoteric stuff. Let's say you want to find what a German size 11 shoe would be in Japan. Type "German men's size 11 shoe in Japanese size" and get "7.5." Wolfram Alpha is like Google with calculational capability. It will do virtually any conversion and much more. All free with a few keystrokes and you don't have to be American.
7.6.2009 2:53am

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