The Justice Department filed its friend of the court brief May 16 in County of Maui v. Hawaii Wildlife Fund, the most significant environmental case currently at the Supreme Court.
But Maui, which addresses the scope of the Clean Water Act, is not the only case touching environmental law on the court’s docket.
Deference to agencies, including the Environmental Protection Agency, and takings claims are also up for review. Climate change, nationwide injunctions, and a scattering of other topics relevant to environmental law may return to the court’s docket soon as well.
Maui raises the important question whether a Clean Water Act (CWA) permit is required when pollution flowing from pipes and other discrete sources travels indirectly through groundwater to oceans, rivers, and other “waters of the U.S.” The circuits are split on this question.
The U.S. Court of Appeals for the Ninth Circuit found in Maui that the CWA applies to pollution traveling through groundwater that is “fairly traceable” to surface waters. The Fourth Circuit has rejected the “fairly traceable” concept in favor of a “direct hydrological connection” test, while the Sixth Circuit has rejected CWA liability for groundwater discharges entirely.
In its brief, the Justice Department argued that a CWA permit isn’t required where “a pollutant is released from a point source to groundwater, even if the pollutant ultimately migrates to navigable waters.” But DOJ also cautioned that the court “need not address” the separate concern of “pollutants [that] travel from a point source to surface water by some route other than through groundwater.”
When the court rules in Maui, observers will look for other implications for the CWA’s jurisdictional reach beyond just the groundwater issue, especially with new rulemakings and ongoing litigation about the scope of the “waters of the U.S.”
Kisor v. Wilkie involves veterans’ benefits, but its implications for environmental law could be significant. The case stems from a Vietnam veteran’s request for disability benefits and the Department of Veterans Affairs’ interpretation of the term “relevant,” as used in one of the department’s regulations.
The Supreme Court will decide whether agency interpretations of their own regulations continue to enjoy so-called “Auer deference,” a concept that extends beyond the deference accorded to agency interpretations of ambiguous statutes after the court’s 1984 decision in Chevron v. NRDC. Many have criticized Auer for incentivizing agencies—including EPA—to issue murky regulations.
Some states—including Texas—have not followed federal law on agency deference or have abandoned deference doctrines altogether.
Neither party in Kisor—the veteran or the federal government—defended Auer in its broadest form. The solicitor general, while asking the court not to jettison Auer altogether, criticized it and advocated for significant new limitations on when courts should apply it. The ruling in Kisor seems likely to reflect a significant limit on agency deference or at least provide meaningful clarification about when deference applies.
Either way, Kisor should prove relevant to environmental regulations and, to the extent agency interpretative deference is diminished significantly, Kisor could affect regulatory rollbacks where EPA or other agencies are changing prior interpretations.
“Takings”—a recurring Fifth Amendment issue in environmental and land use law—is also before the court this term. Knick v. Township of Scott asks the court to revisit its 1985 decision in Williamson County v. Hamilton Bank of Johnson City, which requires litigants to bring takings claims against state agencies in state court before they are deemed ripe in federal court. Some justices have noted that Williamson County’s ripeness requirement often bars these claims from ever reaching federal court due to preclusion principles.
From a practical perspective, a ruling in Knick that favors plaintiffs could significantly increase the amount of land use or other regulatory takings litigation in federal courts. This could also alter and streamline procedural routes for these claims. Some states already impose additional procedures on these claims that would not exist in federal court.
Over the last decade or so, the court has issued notable rulings that open and, at times, close doors to various avenues for climate change lawsuits.
For example, in Massachusetts v. EPA in 2007, the court opened the door to a new era of regulation of greenhouse gas emissions under the Clean Air Act. And, in American Electric Power Co. v. Connecticut in 2011, the court closed the door to federal common law claims seeking to curb those emissions from power plants.
New climate theories may be knocking on the court’s door soon.
In June 2019, the Ninth Circuit will hear argument in Juliana v. United States involving constitutional and public trust theories for addressing climate change.
Originally filed during the Obama Administration, this lawsuit by James Hansen and a group of child plaintiffs seeks a judicial order against a host of federal agencies to dramatically reduce greenhouse gas emissions. To that end, the plaintiffs are also seeking a lengthy trial about the federal government’s energy and climate policies over the last five decades.
The Supreme Court has shown concern about the Juliana case already, issuing short orders that led to the case’s current posture on interlocutory appeal. Depending on the Ninth Circuit outcome, the Supreme Court may be asked again soon to get involved.
These cases are at the forefront, but environmental lawyers should also monitor the Department of Commerce v. New York census case for possible legal impacts concerning administrative records and Carpenter v. Murphy for implications regarding environmental law and tribal jurisdiction.
And given the priorities of the current administration, the court may be asked to address other high-profile environmental cases involving energy projects, border security, or regulatory rollbacks. In fact, the issue of nationwide injunctions—a controversial aspect of some district court remedies with broad implications for environmental law—could also find its way to the court soon.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Scott A. Keller and Jeffrey H. Wood recently joined Baker Botts LLP in the firm’s Washington, D.C., office after leading the Texas Solicitor General’s Office and the U.S. Department of Justice Environment and Natural Resources Division, respectively.
Baker Botts’ attorneys filed amicus briefs on the side of the petitioners in Kisor and County of Maui. The views expressed in this article are the authors’ and do not necessarily reflect the views or opinions of others.