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Environment & Energy Report

Environmentalists Relieved as Critics Slam ‘Muddled’ SCOTUS Term

June 22, 2020, 10:00 AM

The U.S. Supreme Court’s latest term, wrapping up this month, went surprisingly well for environmental lawyers who feared cases on the docket could prove disastrous to their cause.

Many advocates prepared for a barrage of bad news from the conservative-leaning bench as the court weighed major Clean Water Act, Superfund, and pipeline questions, plus non-environment cases that could cause collateral damage. Instead, they got a slate of decisions they could live with—even some worth celebrating.

“We got six votes,” Earthjustice lawyer David Henkin said of the 6-3 ruling in the water case, County of Maui v. Hawai’i Wildlife Fund. “It really blew my mind.”

Conservative court observers, on the other hand, described the term as “muddled” and complained that the justices injected more uncertainty into complex environmental regulation.

University of Maryland law professor Robert Percival, who tracks environmental litigation at the Supreme Court, described the 2019-2020 term as a time of pragmatic answers to vexing legal questions, especially those in the Clean Water Act and Superfund cases.

“They realized how if they went to one extreme or the other in those cases, it would have significant impacts on issues of federalism and the prospect of opening up loopholes in the environmental laws,” he said of the justices.

‘Moderate’ or ‘Muddled’?

Others were less impressed.

“If there is a theme to those cases, it’s muddled,” Pacific Legal Foundation attorney Jonathan Wood said, arguing the justices left too many questions unanswered on the scope of both the Clean Water Act and the federal Superfund law.

“It’s unfortunate that we’re talking about statutes that have been around for decades, and the law on them has not yet evolved to the point that the Supreme Court can articulate clearly what they mean to ordinary people,” he said. “That concerns me.”

Amanda Cohen Leiter, head of American University’s environmental law program, called the high court’s decisions “heartening.”

“There are a couple of justices who, at least in the environmental context, are being very judicial and reaching the outcome that the law leads them to, despite what you might have thought would be their pro-business leanings,” said Leiter, who worked with environmental groups in the Maui case.

And the same “moderate, reflective, and studious approach” goes for some major non-environment decisions this term, including those focused on LGBTQ rights and protections for young immigrants, which bode well for environmental law, she said.

Water Pollution

The Clean Water Act case on the court’s docket attracted the most attention in environmental circles, focusing on whether the bedrock anti-pollution statute’s permitting requirements extend to indirect water contamination.

Advocates worried the court would say no and set “catastrophic” limits on the law, Henkin said. Lawyers for the Trump administration, industry, and Maui County—whose wastewater disposal system prompted the legal dispute—countered that a broad interpretation would stretch the statute far beyond Congress’s intent.

The high court ultimately rejected Clean Water Act interpretations from all the parties and adopted a new one, which largely favored environmentalists’ views that the law covers at least some indirect water pollution.

Justice Stephen Breyer penned the opinion, joined by the rest of the court’s liberal wing, plus Chief Justice John Roberts and Justice Brett Kavanaugh. Lawyers representing energy companies, farmers, and others slammed the court for injecting more uncertainty into the permitting process.

But Stetson University law professor Royal C. Gardner, a wetlands expert, warned against over-interpreting the court’s decision from an environmental perspective. Instead, he said, it’s merely an example of Roberts, in particular, rejecting “extreme positions.”

“Does this suggest a shift in the Supreme Court on environmental matters?” he asked during an Environmental Law Institute panel after the decision. “No, no it does not.”

Superfund Cleanup

Just days before the Maui decision, the Supreme Court adopted a position seen as a middle ground in Atlantic Richfield v. Christian, the Superfund case.

Here, the question was whether Montana landowners living atop contaminated soil near an old copper smelter site could sue to fund an environmental cleanup more rigorous than the one the Environmental Protection Agency approved for the area.

The justices concluded 7-2 that the landowners were free to pursue their cleanup claims in state court, so long as the EPA approves their plan.

That condition was troubling to Wood, the Pacific Legal Foundation lawyer, who said the court “doesn’t even try to grapple with” complications affecting the ruling, including the fact that the EPA doesn’t have an established process for landowners to seek approval for their own cleanup plans.

Climate lawyers jumped to use the decision to their advantage, flagging the case for judges presiding over lawsuits that attempt to hold the oil industry liable for local harm linked to rising global temperatures.

They say the ruling supports their arguments that they should be able to litigate their claims in state courts, an interpretation industry lawyers dispute.

Atlantic Coast Pipeline

The justices dealt environmental groups one decisive blow in Forest Service v. Cowpasture River Preservation Association, allowing a natural gas pipeline to cross beneath the iconic Appalachian Trail.

Atlantic Coast pipeline backers Dominion Energy Inc. and Duke Energy Corp. celebrated the decision for stating clearly that the U.S. Forest Service has authority to approve pipeline crossings for protected trails in national forests.

Wood said the decision was a rare example of the justices issuing a clear-cut environmental decision this term—an outcome he attributed to the case’s property law underpinnings.

“The basic principles of property law, they’re centuries old, and people have a lot of experience working with them,” he said, contrasting the field to newer and more complex environmental statutes.

Environmental advocates were dismayed at the court’s ruling but drew comfort from the fact that the decision has limited impact beyond that case, and the pipeline in question faces plenty more legal obstacles.

DACA Ruling’s Ripple Effects

Lawyers opposing the Trump administration’s rollback of anti-pollution regulations wasted no time invoking recent non-environmental precedent from the Supreme Court to support their cause.

The high court’s decision in Department of Homeland Security v. Regents of the University of California said the Trump administration violated the Administrative Procedure Act when it decided to scrap the Obama-era Deferred Action for Childhood Arrivals, or DACA, program for young immigrants. The majority said Trump officials didn’t go through proper procedures to rescind the program, and didn’t consider how people operated under the expectation that the program would stay intact.

Lawyers for liberal states challenging the Trump administration’s waters of the U.S., or WOTUS, rule cited the case in a court hearing last week, just hours after the ruling came down, saying the EPA and the Army Corps of Engineers likewise didn’t consider states’ and regulated parties’ reliance on previous water jurisdiction rules.

Crowell & Moring LLP attorney Amanda Shafer Berman said the DACA decision rests on core administrative law principles that come into play often in environmental cases, especially the requirement that agencies fully consider how changing positions affects federal regulations.

That will come in handy for litigants accusing the Trump administration of cutting corners on environmental rollbacks, she said, pointing to the Trump administration’s actions on water jurisdiction and greenhouse gas emissions from power plants, among others.

“I think the Trump administration is more vulnerable to the strict application of the APA and rulemaking standards because there is a lack of focus on those intricacies that that statute and the rulemaking procedures require,” Hanson Bridgett attorney Davina Pujari said.

“Every single regulatory rollback-type change in litigation could be impacted by the DACA case,” she said.

LGBTQ Rights and Climate Change

The court’s decision protecting LGBTQ worker rights in Bostock v. Clayton County could also feature in environmental litigation, legal scholars say.

The majority’s interpretation, authored by Justice Neil Gorsuch, that the term “sex” in anti-discrimination laws protects LGBTQ workers employed a type of textual analysis that could also be used to uphold federal climate regulations, University of California, Los Angeles law professor Ann Carlson wrote after the ruling.

The court took a similar approach in the landmark 2007 case Masssachusetts v. EPA, when it concluded “pollutant” in the Clean Air Act includes greenhouse gases. That type of analysis would also lead judges to interpret various provisions of the law to require specific levels of regulation, she said.

That’s a critical issue in litigation over the Trump administration’s decisions to water down Obama-era regulations for emissions from vehicles and power plants.

But Case Western Reserve University’s Jonathan H. Adler argued the Supreme Court has made clear in other cases that “something beyond pure textual analysis” is going to answer the question of when and how the EPA should regulate greenhouse gases.

Lawyers are still likely to reference the LGBTQ decision in various environmental cases to bolster arguments that the text of a particular statute supports their side. But the Pacific Legal Foundation’s Wood said environmental cases already include those “textualist” points.

“Those arguments are already being made, so I’m not sure it’s earth-moving,” he said of the case.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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