Tag: judicial decisionmaking

It’s Raining Cert Petitions!: Last Term’s Biggest Supreme Court News

Supreme CourtBy Richard Lazarus — Sep. 11, 2014 at 9:05 a.m.

This article originally appeared in the September/October 2014 issue of The Environmental Forum. The Environmental Law Institute has graciously allowed the Harvard Environmental Law Review Blog to republish the piece.

The biggest environmental law news from the Supreme Court last term may well not have been the Court’s rulings in two high profile Clean Air Act cases. To be sure, both EPA v. EME Homer City Generation and Utility Air Regulatory Group v. EPA were true blockbusters. EME Homer, which upheld EPA’s ambitious rulemaking to combat interstate air pollution, was plainly a huge victory for the Environmental Protection Agency.

But, potentially more important, yet largely unnoticed and unreported, were the Court’s repeated denials last spring of a series of petitions filed by business interests seeking the Court’s review of a series of adverse appellate rulings. At one point the deluge of such petitions led one lawyer, who frequently represents environmental groups, to remark gamely, “It’s raining cert petitions!”

The reason for the onslaught is clear. The business community has in recent years enjoyed considerable success in persuading the justices to grant review in environmental cases that otherwise seemed to lack the obvious trappings of a cert-worthy case, lacking clear conflicts in the federal courts of appeals. Cases in which the potential for further agency action made unclear the actual, practical significance of the appellate court’s ruling. And even cases in which the solicitor general, after being invited by the High Court to express its views concerning whether review was warranted, recommended against.

In short, the Court often appeared to be operating on a hair trigger in considering business claims that the lower courts had endorsed overreaching of federal environmental laws. But this spring, the Court repeatedly said no, leaving industry lawyers a bit baffled by the Court’s sudden betrayal.

Four times business interests embraced what had heretofore been a winning strategy. They hired the best Supreme Court lawyers — the ones who know the Court best, and even more important, the ones the justices and their law clerks know the best and therefore might be more likely to give weight to their views. Former Solicitor General Paul Clement. Sidley & Austin’s Peter Keisler. And Stanford law professor and formal appellate judge Mike McConnell. The business petitioners recruited legions of amicus curiae to file briefs in support of the Court’s granting review. These briefs would invariably describe the “crippling,” “severe,” “intolerable,” “deleterious,” “crushing,” and “staggering” consequences to the nation’s economy if the Court left standing these adverse lower court rulings.

No one was better, however, than the Chamber of Commerce in describing the economic havoc and destruction that would occur absent the Court’s review. In each of the successive cases, the chamber’s predictions grew more dire.

Although candidly acknowledging that it would “difficult to overstate the importance” of the lower court’s ruling for business, the chamber did not shy away from doing its best to do just that. It described in one case how the “crippling uncertainty and costs” would “exacerbat[e]” existing energy shortages” because “power plants faced with a new onslaught of tort liability may choose to cease operations.” In another, the lower court’s ruling “will undermine the proper functioning of the nation’s integrated national market in transportation fuels.”

Not to be outdone by its competing predictions of economic cataclysm, the chamber contended in yet another case that a Second Circuit decision “would transform every public drinking water supply in this country — indeed every future supply — into a ready-made multi-million-dollar lawsuit.” It “would open the floodgates to claims against virtually every manner of human enterprise” and the “consequences could extend to all corners of our economy.”

Finally, the chamber described the “staggering” economic consequences of the D.C. Circuit’s upholding of EPA’s authority to override a Clean Water Act permit previously issued by the Army Corps of Engineers. That ruling placed at risk “over $220 billion of investment annually,” that in turn the chamber calculated generated $660 billion of downstream economic activity, or almost four percent of the nation’s Gross Domestic Product.

The Court nonetheless denied review all four times: first in Mingo Logan Coal Co. v. EPA in March; then Exxon v. City of New York in April, and twice in June, Gen-On Power Midwest v. Bell, at the beginning of the month, and finally in Rocky Mountain Farmers Union v. Corey, just before adjourning for the summer. No justice dissented.

There is, of course, a useful lesson here. Zealous advocacy is to be expected. But exaggerated advocacy is counterproductive, especially in the High Court when, by spring time, the justices’ law clerks are more seasoned and can more readily tell the difference between the two.

And, most happily, the chamber’s prophecies have not (yet) borne out. Whew!


Richard Lazarus is the Howard J. and Katherine W. Aibel Professor of Law at Harvard University.

New York v. U.S. Nuclear Regulatory Commission

By Hillary H. Harnett

The Nuclear Regulatory Commission (“NRC” or “the Commission”) licenses and regulates the nation’s commercial nuclear power plants. Over a span of several decades, it has grappled with its environmental obligations and faced recurrent litigation regarding its responsibilities under the National Environmental Policy Act (“NEPA”). In 2012, the D.C. Circuit heard another NEPA challenge, New York v. U.S. Nuclear Regulatory Commission, just after a series of political events left the future of nuclear waste disposal less certain than ever before. In its decision, the court vacated a recent NRC rulemaking, holding that the Commission had violated NEPA through its failure to adequately assess the environmental impacts of long-term nuclear waste storage. This decision will lead to the NRC’s first Environmental Impact Statement analyzing the effects of continued nuclear power generation in the event that the nation fails to eventually establish a permanent geologic repository for nuclear waste.

This Comment argues that the decision was an appropriate NEPA holding and a welcome departure from earlier decisions that displayed more extreme deference to the Nuclear Regulatory Commission despite similarly lackluster environmental analyses. The decision also highlights a larger issue: the active role that the judiciary must take in response to legislative inaction in the environmental arena.

Cite as: Hillary H. Harnett, New York v. U.S. Nuclear Regulatory Commission, 37 Harv. Envtl. L. Rev. 589 (2013).

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Arkansas Game and Fish Commission v. United States

By David Baake

The Fifth Amendment’s Takings Clause provides that private property shall not be “taken for public use, without just compensation.” For most of American history, the Supreme Court construed this clause narrowly, requiring the government to pay compensation only where it permanently appropriated or destroyed property. During the twentieth century, however, the Court began to embrace a significantly broader interpretation of the Takings Clause. In 1922, the Court introduced the concept of regulatory takings, holding in Pennsylvania Coal Company v. Mahon that the government was required to pay compensation if its laws or regulations went “too far” in redefining the range of interests included in the ownership of property. A series of cases during the World War II era established that the government was required to retroactively compensate a property owner for a temporary physical taking. And in 1987, the Court combined these two innovations, holding in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles that the government was required to retroactively compensate a property owner for a temporary regulatory taking.


Last Term, in Arkansas Game and Fish Commission v. United States, the Supreme Court was required to consider the continuing validity of this last development. The Court was confronted with two conflicting precedents: First English, which established the general availability of retroactive compensation for temporary regulatory takings, and Sanguinetti v. United States, a 1924 case holding that the Takings Clause did not require compensation for government-induced flooding unless the flooding constituted a “permanent invasion of the land.” The Court reaffirmed First English while rejecting Sanguinetti, holding by a vote of 8-0 that the federal government was required to retroactively compensate a landowner whose property it temporarily took by flooding.
In this Comment, I argue that the Arkansas Game and Fish Court erred in applying First English without first addressing its continuing validity. Even assuming that First English was correct when it was decided in 1987 — something that is far from clear — it is doubtful that it remains so today. Since First English was decided, the Court has radically reduced the availability of implied damages relief for other constitutional violations. I argue that there is no principled basis for treating temporary regulatory takings differently from other constitutional violations; hence, limiting the availability of implied damages relief under First English is necessary to achieve doctrinal consistency. Further, limiting First English is desirable from a policy perspective, as this would return the question of compensation for temporary regulatory takings to the political process, allowing federal, state, and local governments to balance the public’s interest in regulation with the interests of individual property owners on a case-by-case basis.

Cite as: David Baake, Arkansas Game and Fish Commission v. United States, 37 Harv. Envtl. L. Rev. 577 (2013).

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Changing Climate, Unchanging Act, Improvising Agency, Enabling Court: The Story of Coalition for Responsible Regulation v. EPA

By Laura King

Coalition for Responsible Regulation v. EPA follows from and amplifies the Supreme Court’s decision in Massachusetts v. EPA. Both cases announce the Environmental Protection Agency’s power to regulate greenhouse gases under the Clean Air Act — with Massachusetts v. EPA prodding a reticent EPA into regulation of greenhouse gases under the motor vehicle provision of the Act, and Coalition for Responsible Regulation v. EPA affirming both EPA’s obedience to Massachusetts v. EPA and the agency’s new willingness to extend greenhouse gas regulation to stationary sources. The cases are significant because they together stimulated and sustained the first controls on greenhouse gases in the United States, altering a status quo in which greenhouse gas emissions were free — not taxed or regulated or otherwise constrained.

Overall, Coalition for Responsible Regulation v. EPA is a win for the environment. Its effect is to preserve permitting requirements for stationary sources that emit greenhouse gases. It also supports and extends the Supreme Court’s recognition in Massachusetts v. EPA that EPA may regulate greenhouse gases under the Clean Air Act. However, what the case reveals about the American legal system’s ability to respond to changes in the natural world is sobering. It exposes a system in need of revision: one in which lawmaking, designed to be measured, manages instead to be dawdling, and agencies and courts must summon all of their resources — prognostication, strategy, rhetorical finesse, and luck — to turn outdated statutes toward pressing threats. In this case, in an effort to provide some response to climate change and thus fulfill broader public mandates, both EPA and the D.C. Circuit held statutory language at arm’s length: EPA, by promulgating rules that “tailored” the clearest kind of statutory language — numbers; the court, by calling on standing doctrine to avoid facing — and thus having to overturn — EPA’s fast-and-loose interpretation.

These choices, which were essentially workarounds to avoid the application of straightforward statutory language, together succeeded in preserving greenhouse gas regulation, but not without risk and compromise to environmental positions. Whenever an agency departs from statutory language, it risks reversal. That risk is especially acute when the reviewing court is the D.C. Circuit and the reviewing panel includes David Tatel, who, in his capacity as a judge on the D.C. Circuit, has urged agency officials — if they are to satisfy the court and fulfill their role as responsible public servants — to “(1) [r]ead the statute; (2) read the statute; (3) read the statute!” The D.C. Circuit, for its part, preserved EPA’s workaround by doing a workaround itself, one that shrinks somewhat that cornerstone of environmental litigation: standing doctrine.

Part I of this comment puts Coalition for Responsible Regulation v. EPA in context by reviewing the history of greenhouse gas regulation under the Clean Air Act. Part II profiles the case itself. Parts III and IV use Coalition for
Responsible Regulation v. EPA as a showcase for the nimble, risky choices required of agencies and courts as they use outdated statutory frameworks to respond to new environmental challenges. Thus, Part III shows EPA balancing the danger of taking a red pen to the Act, on the one hand, against the danger of overseeing a sprawling regulatory program, on the other. Part IV shows the D.C. Circuit preserving EPA’s approach to regulation of greenhouse gases at the cost of narrowing the doctrine of standing. The trade, as we will see in the details, is not terrible, but it is a compromise nevertheless.

Cite as: Laura King, Changing Climate, Unchanging Act, Improvising Agency, Enabling Court: The Story of Coalition for Responsible Regulation v. EPA, 37 Harv. Envtl. L. Rev. 267 (2013).

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Federalism in the Air: Is the Clean Air Act’s “My Way or No Highway” Provision Constitutional After NFIB v. Sebelius?

By David Baake

Since the New Deal era, the Supreme Court has interpreted the Spending Clause to permit Congress to use conditional grants to encourage state governments to take action that Congress could not require them to take. In National Federation of Independent Business v. Sebelius, the Supreme Court unexpectedly restricted this power, holding for the first time ever that a conditional grant was unconstitutionally coercive because the amount of money at stake was so large that the states had no real choice but to comply with the attached conditions. This remarkable development in Spending Clause jurisprudence will likely embolden states to challenge the constitutionality of a wide variety of statutes, including Section 179(b)(1) (“Section 179”) of the Clean Air Act, which empowers the Environmental Protection Agency to prohibit, with limited exceptions, the distribution of federal highway money to states that fail to submit adequate State Implementation Plans (SIPs).

In this article, I assess the likelihood that a Spending Clause challenge to Section 179 would succeed, post-Sebelius. In Part I of this Article, I briefly discuss the Sebelius Court’s Spending Clause holding. In Part II, I argue that Section 179 should survive a facial constitutional challenge after Sebelius because, at least where applied to SIP plans for pollutants emitted by mobile sources, the provision can be construed as an attempt to restrict the use of federal funds to projects that advance the general welfare, rather than as an attempt to coerce the states into adopting particular policies. Finally, in Part III, I argue that Section 179 should survive an as-applied constitutional challenge, even if it is applied to SIP plans for pollutants that are not emitted by mobile sources. I argue that the decision to enact a SIP “remains the prerogative of the States not merely in theory but in fact,” because (1) a state that does not wish to promulgate a SIP can petition EPA to promulgate a Federal Implementation Plan (FIP) and thereby halt the sanctions clock; and (2) the amount of money at stake will likely be significantly less than the amount at stake in Sebelius.

Cite as: David Baake, Federalism in the Air: Is the Clean Air Act’s “My Way or No Highway” Provision Constitutional After NFIB v. Sebelius?, 37 Harv. Envtl. L. Rev. F. 1 (2012).


Wilderness, the Courts, and the Effect of Politics on Judicial Decisionmaking

By Peter A. Appel

Empirical analyses of cases from federal courts have attempted to determine the effect of judges’ political ideology on their decisions. This question holds interest for scholars from many disciplines. Investigating judicial review of the actions of administrative agencies should provide strong evidence on the question of political influence because applicable rules of judicial deference to administrative decisions ought to lead judges to reach politically neutral results. Yet several studies have found a strong correlation between results in these cases and proxies for political ideology. Cases involving the interpretation of environmental law have been of particular interest as a subset of this research because political ideology is also thought to predict views on environmental regulation. Nevertheless, an earlier work offered initial evidence that this phenomenon may not hold in cases involving review of agency decisions administering the Wilderness Act of 1964. Indeed, the cases showed a pro-wilderness tilt in the outcomes, rather than a pro-agency tilt. This Article builds on that earlier evidence. It first provides an overview of empirical studies of environmental decisions in federal courts and then reviews the Wilderness Act and current problems arising in the administrative application of it. The Article then analyzes whether ideological proxies employed in earlier studies strongly correlate with the outcome of the Wilderness Act cases using standard statistical analysis. The analysis shows a lack of correlation between politics and the aggregate outcome of wilderness decisions, namely a tilt in a pro-wilderness direction.

Cite as: Peter A. Appel, Wilderness, the Courts, and the Effect of Politics on Judicial Decisionmaking, 35 Harv. Envtl. L. Rev. 275 (2011).

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