Bloomberg Law
Oct. 2, 2019, 10:01 AM

Big Environmental Term for Supreme Court? Too Soon to Tell

Ellen M. Gilmer
Ellen M. Gilmer

The Supreme Court’s environmental docket is still in flux just days from the launch of its new term, which begins Oct. 7.

One of two high-stakes pollution cases on the calendar might not happen at all, and the court hasn’t yet decided whether to add more.

Debates over natural gas pipelines, climate change, and the Flint water crisis are vying for the justices’ attention.

Challenges to the Trump administration’s environmental rollbacks, meanwhile, are inching ahead in lower jurisdictions. But experts are on guard in case any of them leapfrog to the Supreme Court or line up for a future term.

“There may be a big storm brewing in the future,” said Robert Percival, who heads the environmental law program at the University of Maryland.

Clean Water Act Conflict

The biggest environmental case on the docket is County of Maui v. Hawaii Wildlife Fund, a dispute over the scope of the Clean Water Act.

Local officials recently voted to settle and withdraw their petition, but it’s unclear whether Maui’s mayor will follow through on the plan.

That leaves a cloud of uncertainty around one of the most consequential pollution-related questions to land at the Supreme Court in years.

At issue is whether the Clean Water Act’s permitting program covers pollution that moves indirectly from a source to a federally regulated waterway. Treated wastewater in Maui flows down disposal wells, mixes with groundwater, and winds up in the Pacific Ocean.

The outcome of the dispute could affect permitting for pipelines, power plants, water management systems, and other projects across the country.


The Supreme Court is set to hear arguments Nov. 6 if the case doesn’t settle before then. The Maui County Council on Sept. 20 authorized withdrawal of the case, but the mayor’s office has threatened to block the move by not approving settlement documents.

Another case, Kinder Morgan v. Upstate Forever, involves the same legal question, and the Supreme Court might take it up later in the term instead. But it also contains procedural complications that could overshadow the substantive issues in the case and leave the Clean Water Act question unanswered.

James S. Burling, vice president of legal affairs for the property-rights-focused Pacific Legal Foundation, said his group is already on the lookout for other cases that could put that question before the justices.

“One way or the other, this issue is going to come up,” he said.

Superfund Standoff

The other major environmental case on the Supreme Court’s docket involves one of the most polluted places in the country: the 300-square-mile Anaconda Co. Smelter Superfund site in Montana.

The Environmental Protection Agency has spent decades coordinating cleanup efforts under the Comprehensive Environmental Response, Compensation, and Liability Act, the 1980 law that created the Superfund program.

The legal dispute centers on whether Superfund-area residents can use Montana state courts to force copper smelter site owner Atlantic Richfield Co., a BP Plc subsidiary, to pay for restoration work that goes beyond the EPA’s restoration plan.

Competing parts of CERCLA are at play. One gives EPA officials the final say on how to clean up Superfund sites and limits others from challenging that process. Another provision, known as a savings clause, says the statute generally doesn’t interfere with state law.

In Atlantic Richfield v. Christian, the two sides disagree over which part applies to the landowners’ state-law claims.

Implications for Climate Cases

Harvard Law School professor Richard J. Lazarus said the outcome of the case could have impacts in other contexts, including a set of cases from state and local governments seeking to hold energy companies responsible for the effects of climate change.

Rhode Island, and several cities and counties in California, Colorado, Maryland, New York, and Washington state have made claims against fossil fuel companies under their respective state common law systems—not under federal law.

If the Supreme Court reads the CERCLA savings clause narrowly and determines that the federal statute trumps the landowners’ state-law arguments, energy companies would have fresh ammunition to argue the Clean Air Act preempts state-level claims involving climate liability.

“So we will pay a lot of attention to what the court says on the meaning of the provision here because that’s very much like the language of the Clean Air Act,” Lazarus said during a Sept. 26 Environmental Law Institute event previewing the Supreme Court’s term.

Spillover From Health, Immigration Cases

A handful of non-environmental cases on the Supreme Court’s docket also could have impacts on the EPA, the Interior Department, and other agencies in the executive branch.

Jonathan H. Adler, the director of the environmental law program at Case Western Reserve University, pointed to a fresh set of Affordable Care Act cases focused on whether Congress overstepped when it used appropriations riders to block certain funding that the statute promised to insurers.

“If the court says, ‘No, certain things you have to actually go through traditional lawmaking,’ then that certainly affects environmental law as well,” Adler said.

Another high-profile case with potential environmental implications is the court’s review of the president’s decision to end the Obama-era Deferred Action for Childhood Arrivals program.

One of several legal questions in the case is whether the Trump administration should have gone through an official rulemaking process to unwind DACA, which itself wasn’t an official rule. Similar debates often arise over guidance documents from the EPA and other agencies.

This term, the justices also might weigh in on other looming legal questions that affect environmental litigation, including whether federal district courts can issue nationwide injunctions of federal actions, and whether Congress routinely gives agencies too much power to fill in details when implementing broad statutes.

Pending Pipeline Petitions

Much of the Supreme Court’s docket for the upcoming term isn’t filled yet. The justices will release a long list of orders soon, announcing additions.

The environmental watch list includes cases involving natural gas pipelines, lead contamination, and a climate scientist.

Many property rights advocates are keeping tabs on Givens v. Mountain Valley Pipeline, which centers on whether developers can use eminent domain to take private property along a project’s route before paying landowners.

Another pair of pipeline petitions—Atlantic Coast Pipeline v. Cowpasture River Preservation Association and U.S. Forest Service v. Cowpasture River Preservation Association—involve the Forest Service’s authority to permit a pipeline crossing beneath the Appalachian Trail.

Energy infrastructure is also at stake in California Trout v. Hoopa Valley Tribe, a petition involving state authority over water permitting for hydropower projects.

Climate, Lead Exposure

The court also will soon announce whether it wants to delve into a long-running feud between climate scientist Michael E. Mann, a professor of atmospheric science at Penn State University, and two conservative organizations, the Competitive Enterprise Institute and the National Review.

A local court in Washington, D.C., let Mann proceed with defamation claims against the organizations after CEI published a column—reprinted in part by the National Review—that accused Mann of fraud and compared him to convicted child molester Jerry Sandusky, “except that instead of molesting children, he has molested and tortured data.”

Later in the term, the justices will decide whether to take up a case involving whether Flint, Mich., violated residents’ rights to “bodily integrity” when it changed the local drinking water source and exposed thousands of people to dangerously high levels of lead.

Bodily integrity is considered a substantive due process right—a fundamental protection acknowledged by courts but not spelled out in the Constitution.

Percival, from the University of Maryland, noted that similar claims are at play in Juliana v. United States, the headline-grabbing case in which 21 young litigants are asserting a right to a sustainable climate system.

“It’s a different issue from whether there’s a due process right to a healthy climate, but still it gives the court the potential opportunity to address whether or not substantive due process applies in the environmental context,” Percival said.

Bigger Environmental Fights Loom

But the most contentious environmental litigation in the coming year is still working its way through lower courts.

Cases involving the Trump administration’s efforts to loosen clean car standards, Endangered Species Act regulations, water protections, and federal climate rules are in early stages in district courts and circuit courts.

Some could move up on an emergency basis if losing parties ask the Supreme Court to intervene. In Juliana, for example, the Trump administration is expected to ask the justices to help if the U.S. Court of Appeals for the Ninth Circuit allows the plaintiffs’ climate trial to proceed.

Energy industry lawyers have also said they would seek Supreme Court review if federal appellate courts let local governments move forward with their climate liability claims against energy companies.

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Renee Schoof at; Anna Yukhananov at