Greening the Bench?

When environmental issues come up in everyday conversation, the U.S. Supreme Court rarely figures in to the discussion. Most people, environmentalists and non-environmentalists alike, do not consider the court to be an important arbiter of environmental policy in the United States. This, unfortunately, underestimates—sometimes dramatically—the court’s role in shaping environmental laws and regulations. Like any other public policy in the U.S., this policy faces judicial review, and the justices often shape it very directly through their decisions.

As the justices return to the bench this fall, it is worthwhile for Americans to review its recent legacy in environmental cases. The two patterns beginning to surface after the first three terms of the Roberts era do not seem reassuring for environmentalists: relaxed regulation and weakening of historic policies. The only positive aspect of the court’s actions thus far lies in its seeming inclination to take “green” cases. The Roberts era has seen 12 of these already—nearly triple the number heard in the first three years of the Rehnquist or Burger Courts. However, if the justices continue to rule against green interests, this hardly qualifies as a positive.

In the 2008-2009 term, the court decided five cases that directly involved environmental regulation and adopted the pro-business position in each of them. In Coeur Alaska Inc. v. Southeast Alaska Conservation Council, the court opened the doors to drastic reinterpretation of the Clean Water Act. The majority upheld a Bush Administration ruling, which many experts consider a blatant violation of the spirit of the Clean Water Act, that allows mining companies to dump toxic mine tailings into water bodies so long as they are defined as “fill materials” rather than “waste.” This ruling could fundamentally alter the way in which government monitors waste discharged into rivers and lakes. It is also a clear indication that the court prefers to side with plaintiffs who are within the letter of the law, but not the original legislative intent—that of ecological protection.

The justices displayed this same attitude in Entergy v. Riverkeeper. In this case, several green groups and states sued the Environmental Protection Agency in order to prevent the use of explicit cost-benefit analysis when creating regulations. The ruling was in favor of the EPA and against what Justice Stevens viewed as the legislative intent of Congress. In his dissent he wrote: “When Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute.” There is no such language in this bill and, historically, Congress has been wary of allowing cost-benefit considerations in environmental regulatory decisions. Yet the majority disregarded both the plain intent of Congress and the court’s own historical precedent, choosing instead to overturn the ruling of the Second Circuit justices.

The Entergy case is doubly interesting because the newest member of the bench, Sonya Sotomayor, wrote the opinion that the majority ultimately overturned. In her decision, she echoed the position that Stevens would eventually voice. In taking this stance, Sotomayor revealed a jurist willing to remain in line with the legislative intent of the law, if not the exact wording. As she takes her place on the bench, she may help to swing the court back toward a position friendlier to ecological concerns.

The 2009-2010 docket holds only one green case, a decline from previous years. However, as climate-change policy becomes ever more important, the court is sure to exercise an even larger role in environmental policy than it has in the past. The Roberts era has thus far been marked by both its willingness to hear environmental cases and its lack of sympathy to such causes. The appointment of Sotomayor may lead to some changes, but it seems unlikely that the court will prove receptive to green interests until at least one more environmentally friendly judge joins the fold. This makes the environmental stance of the next appointee of vital concern. As such, activists must participate in a much more central and vocal manner, prodding the decisions of their Senators during the next confirmation hearings. The bench clearly plays a vital, if hidden, role in American environmental policy and the confirmation of a new, more environmentally receptive justice may stem the rollback of natural protections that the Roberts Court seems intent upon implementing.

A. Patrick Behrer ’10 is an economics concentrator in Eliot House. His column appears on alternate Thursdays.