Wide Range of Environmental Issues Before Supreme Court

October 15, 2008

Two down, four to go.

The current session of the US Supreme Court, which began Oct. 6, 2008, is spiced with six cases that likely will have important environmental implications, no matter how they turn out.

The justices heard oral arguments for two cases on Oct. 8. Another is scheduled for Dec. 2, and three have yet to be assigned a specific hearing date. Timing for decisions on the cases is always difficult to predict, but rulings are likely to be released beginning in the first few months of 2009.

For each case, the attorneys involved, information on its nature and history, and, in some cases, links to media reports, are included in the URLs below.

CASES HEARD OCTOBER 8, 2008

Case No. 07-1239, Winter, Secretary Of The Navy v. Natural Resources Defense Council

The case involves the US Navy's use of sonar during training sessions off the southern California coast. At issue is whether the President and the military can declare that "emergency circumstances" exist for such training, allowing the military's preferences to trump environmental concerns such as potential harm to whales and other creatures.

  • Sonar case docket (includes phone numbers of participants).
  • SCOTUS Wiki (unofficial compilation of documents and background) on Winter v. NRDC.
  • Oyez (free site supported by law firms).

Case No. 07-463, Summers v. Earth Island Institute

This dispute is over a small salvage-logging project in California. The US Forest Service said no public comment period or appeals process would be allowed, and environmentalists sued, leading to a lower court ruling that the agency's new policy for this kind of small project was illegal (despite the fact that the specific project was withdrawn after the suit was filed). The Bush administration is contesting the ruling, saying in part that the national policy shouldn't be revoked after the specific project was no longer in play. The outcome could help determine whether private parties can challenge government regulations on a broad basis, or only on a case-by-case basis.

CASE TO BE HEARD DECEMBER 2, 2008

Case No. 07-588, Entergy Corp. v. EPA (Consolidated With Cases No. 07-589 And 07-597)

This case is driven by an EPA decision determining whether, and to what extent, a power plant must update its method of using cooling water. In its initial decision, the agency based its conclusion in part on cost-benefit analysis. A lower court ruled that this use of cost-benefit analysis is illegal if it doesn't lead to a solution that gives the same results as a lower-cost option. The Supreme Court will consider this cost-benefit analysis argument, which could have major implications for many federal regulations. Numerous major industry groups have filed briefs in the case.

CASES WITH HEARING DATE TO BE DETERMINED

Case No. 07-984, Coeur Alaska v. Southeast Alaska Conservation Council (Consolidated With Case No. 07-990, Alaska v. Southeast Alaska Conservation Council)

This case revolves around US Army Corps of Engineers approval for disposal of mining waste in a lake as fill material, instead of as a toxic material. The Corps decision was based on a 2002 regulation that was approved by the Corps and EPA. A lower court overturned the Corps permit for dumping in the lake. The outcome of the case could influence the disposal of many kinds of materials in various waterways.

Case No. 07-1410, United States v. Navajo Nation

This case involves a dispute over how the US government has handled its fiduciary duties to the Navajo Nation regarding royalties on coal leases. Among the outcomes at stake is the potential award of $600 million to the Navajo Nation. The specifics of the case may limit the court's decision to just this tribe, but a few others might also be affected.

Case No. 07-1601, Burlington Northern & Santa Fe Railway v. United States (Consolidated With Case No. 07-1607, Shell Oil v. United States)

At stake is the determination of who is responsible for cleaning up a contaminated site in California. A lower court ruled that a relatively newer owner of a property, whose land within the larger property wasn't contaminated, was nonetheless responsible for helping to clean up the larger property. The question of who must clean up a contaminated site is a long-running question for thousands of such properties, including Superfund sites, and the outcome could affect many sites. Also at issue are the responsibilities of companies who sell and ship toxic products, but are no longer the owners of such products when they contaminate a property.