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Justices to Weigh Pipeline, Climate Petitions in Upcoming Term

Sept. 29, 2021, 10:00 AM

The Supreme Court will kick off a new term next week with an environmental docket that could wade into big-ticket climate, water, and pipeline issues.

The justices gathered Sept. 27 for their long conference to debate what issues to take on in the coming months. The environmental case list is light, but court watchers are paying close attention to a few major issues, including petitions over power plant emission rules.

States and coal companies asked the justices this year to weigh in on a decision from a U.S. Court of Appeals for the District of Columbia Circuit panel to scrap the Trump administration’s lax Affordable Clean Energy rule for power plants, something University of Maryland environmental law professor Robert Percival says would be akin to “breathtaking judicial activism” if the Court chooses to pick it up.

“They may be tempted to, because the court conservatives have really wanted to slap EPA down after the Supreme Court five and a half years ago stayed the Clean Power Plan,” he told Bloomberg Law.

The court will also consider a petition by Dakota Access pipeline operators who dispute the D.C. Circuit’s finding that the project needs further federal environmental review. Davina Pujari, co-chair of the environment and natural resources group at Hanson Bridgett LLP, will have an eye on how agency deference potentially plays out in that case.

“Folks have been watching Supreme Court cases over the last few years, and have been waiting for the case where Chevron deference is reexamined by the court, by this particular court,” she said.

Here are the environmental and energy cases to watch this term:

Upcoming Arguments

Tennessee v. Mississippi: Justices will hear arguments Oct. 4 in this water battle waged by Mississippi over whether Tennessee should pay up for pumping water from a large aquifer in Memphis that infringed on its neighboring state’s water supply. Tennessee wants the Supreme Court to toss Mississippi’s case entirely, after a special master overseeing the case recommended that Mississippi could amend its claims.

Pending Cases

Texas v. New Mexico and Colorado: This long-running water war over pumping groundwater attached to the Rio Grande is set for special master trial proceedings, in which a referee puts together an extensive record to give recommendations to the justices, who make a final decision. The Supreme Court has “original jurisdiction” over the case because both parties are states. That trial, split into two, will begin Oct. 4 and continue March 2022.

Petitions

West Virginia v. EPA, North American Coal v. EPA, North Dakota v. EPA, Westmoreland Mining v. EPA: Justices will decide whether to pick up four petitions from West Virginia, North American Coal Corp., North Dakota, and Westmoreland Mining LLC asking the Supreme Court to overturn a lower court decision tossing the relaxed Trump era greenhouse gas emission rule for existing power plants, called the ACE rule. The case could reverberate in Biden administration climate plans should the Supreme Court weigh in.

Volkswagen AG v. Ohio: Volkswagen in August asked the Supreme Court to scrap an Ohio court ruling that would allow the state to sue the car company for its diesel emission cheating devices. The company says the Clean Air Act preempts Ohio from moving forward with their own penalties. The case—which could result in a trillion-dollar payout—dovetails with another Volkswagen petition on the same issue in a lawsuit brought by two counties.

Dakota Access LLC v. Standing Rock Sioux Tribe: The Dakota Access pipeline has been the subject of much litigation by groups who say the Army Corps of Engineers failed to complete an adequate environmental review. Dakota Access LLC wants justices to step in and eliminate uncertainty surrounding the project’s operation, according to its petition. The pipeline also seeks review of the D.C. Circuit’s requirement that the Corps make a “convincing case” in responses to objections to its environmental review.

VIDEO: We look at the series of high profile legal setbacks that has some in the industry asking—is it still possible to build pipelines in America?

Sackett v. EPA: Michael and Chantell Sackett are two Idaho property owners who started construction on a home when the Environmental Protection Agency found their property contained wetlands. The Sacketts want the Supreme Court to revisit its 2006 split decision in Rapanos v. United States. The court held that the CWA doesn’t regulate all wetlands, but “no opinion explaining why that is so garnered a majority of the court,” the petition says.

“If the court takes the case, there is a strong chance of a clearer 6-3 opinion than the 4-1-4 in Rapanos,” Pujari said.

Future Cases

Environmental Defense Fund v. FERC: Spire STL says it will seek the high court’s review of the D.C. Circuit’s decision to revoke the Federal Energy Regulatory Commission’s certification for its natural gas pipeline. Spire will ask the Supreme Court to decide whether remand without vacating an agency decision is appropriate where the agency can fix its decision on remand and vacating the agency action could have “serious disruptive effects.”

Analysts at ClearView Energy Partners LLC said they believe Spire has until Dec. 6 to file its petition.

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com