Supreme Court
News Flash: Supreme Court Decides Coeur Alaska
In an opinion by Justice Kennedy, the Supreme Court decided two issues in this case, over a dissent by Justice Ginsburg. The first was whether the Clean Air Act gives authority to the United States Army Corps of Engineers, or instead to the Environmental Protection Agency (EPA), to issue a permit for the discharge of …
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CONTINUE READINGThe Supreme Court’s Love Affair with the Takings Clause–Not Over Just Yet
One of the biggest differences between the U.S. Supreme Court under former Chief Justice Rehnquist and the Court under current Chief Justice Roberts is the comparative interest in property rights and the Constitution’s Takings Clause. From 1978 until Rehnquist’s death in 2005, the Supreme Court heard one or more takings cases each Term–culminating in the …
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CONTINUE READINGCoeur Alaska–A Shifting Legal Position by the Obama Administration?
As the U.S. Supreme Court Term winds down, only one environmental case on the Court’s docket remains undecided: Coeur Alaska v. Southeast Alaska Conservation Council, No. 07-984. That case, which involves the relationship between the Clean Water Act’s water pollution control (NPDES) and its wetlands dredge-and-fill programs, arises in the context of a proposed gold …
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CONTINUE READINGThe Supreme Court’s recent Superfund decision may have a significant impact on future cleanups
As Dan has noted, on Monday the U.S. Supreme Court issued an opinion in a widely-watched case interpreting CERCLA, the Superfund law. (Dan posted some brief thoughts about the opinion, BURLINGTON NORTHERN & SANTA FE RAILWAY. CO V. UNITED STATES.) Dan says that the part of the opinion dealing with apportionment of liability “does not purport to establish any new principles but does …
CONTINUE READINGThe Ninth Circuit: 0-for-the Supreme Court Term
It’s been a very rough U.S. Supreme Court Term for the Ninth Circuit. Four of the five major environmental cases on the Supreme Court’s docket this year emanate from the Ninth Circuit. With the justices’ issuance of their major CERCLA decision in Burlington Northern this week, four of those environmental cases have now been resolved, …
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CONTINUE READINGJustice Souter and the Environment
The news that Justice Souter is leaving the Supreme Court probably means little for environmental cases. Souter has been a reliable environmental vote, joining the majority in Massachusetts v. EPA, the Court’s only case on climate change. He dissented with the liberal wing in Rapanos v. United States , the convoluted decision about the extent to …
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CONTINUE READINGWas it worth it?
Sometimes environmental litigation becomes strikingly divorced from the underlying facts that give rise to it. And sometimes the hardest fought litigation seems to have the least impact on what the parties are ostensibly fighting about. When that litigation creates bad precedents that are difficult to reverse, you have to wonder whether anything of value has …
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CONTINUE READINGSupreme Court Denies Cert. in Mercury Case
The Supreme Court has declined to review a lower court opinion striking down the Bush Administration’s regulation of mercury. This isn’t a huge surprise since the Obama Admimistration indicated that the lower court opinion was consistent with its own regulatory policy, leaving only the industry to seek revieew. The lower court opinion is one of …
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CONTINUE READINGBlowing Off Steam: Cost-Benefit Analysis and the Clean Water Act
The Entergy case, which is now before the Supreme Court, involves EPA regulation of power plant’s cooling systems. This is an important environmental issue because the cheapest systems kill acquatic life in the front-end intake process and then raise the temperature of water bodies in the back-end discharge. More broadly, the case raises questions about whether …
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CONTINUE READINGHow do we decide what is a “Water of the United States”? Rapanos revisited
Ever since the U.S. Supreme Court issued its opinions in Rapanos v. United States in 2006, it has been unclear exactly how the U.S. is to go about evaluating which wetlands and tributaries of navigable waters are subject to federal jurisdiction under the Clean Water Act. Until recently, the U.S. Army Corps of Engineers asserted federal …
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