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What Is “Probusiness” or “Antienvironment”?

Court commentaries routinely slap labels on Court decisions—“probusiness,” “proconsumer,” “antienvironment,” and so forth—without providing any meaningful context or discussion for what such labels mean. In common parlance, probusiness and antienvironment are seen as two sides of the same coin. Yet it is overly simplistic to characterize environmental cases as conflicts between “business” and “the environment.” The sets of cases in which business groups and environmentalist groups each have an interest are not coextensive. Many cases are of importance to business groups but of only incidental concern to environmental organizations, even if the controversy arises in the context of environmental law. Similarly, some cases that implicate environmental protection concerns have only indirect effects on business. A dispute over the management of federal lands or the application of the National Environmental Policy Act

(NEPA) to military exercises may or may not concern business groups, despite the potential environmental significance of such questions. In the occasional case, business and environmentalist groups are aligned, but this is quite rare. More often environmental cases arise in which environmentalist groups choose not to participate.

Characterizing a decision as pro- or antibusiness requires some degree of generalization. With that caveat in mind, in environmental cases, the probusiness position is typically that which opposes greater environmental regulation or seeks to relieve regulatory burdens or reduce corporate liability for alleged environmental harms. Where such issues are at stake, business groups regularly file amicus briefs to advance their position. The National Chamber Litigation Center (NCLC) of the US Chamber of Commerce is the most frequent business litigant, but it is far from the only one. The National Federation of Independent Business and National Association of Manufacturers are also frequent sponsors of amicus briefs, as are many industry-specific groups ranging from the American Petroleum Institute and National Mining Association to the American Forest and Paper Association and National Association of Home Builders. Just as there are many environmentalist groups that engage in litigation, there are a range of business voices active in environmental cases before the Court.

Business groups are more frequent participants in environmental cases than environmentalist groups, and are more active in seeking certiorari. It is rare that an environmental law case arrives in which business interests are not represented in one form or another. The primary exception occurs in environmentally related cases between two or more states that arise under the Court’s original jurisdiction. In these cases, of which there have been four during the first nine terms of the Roberts Court, it is rare for outside parties to intervene, save for the federal government, which may have a view as to how a dispute between states should be resolved. Most other environmental cases implicate business interests, causing business groups to be regular participants in environmental law cases before the Supreme Court.

Business-related organizations participated in thirty-one of the thirty-five environmental law-related cases heard during the first nine terms of the Roberts Court. Environmentalist groups, by contrast, participated in only twenty-five of the thirty-five cases. Resource constraints and other factors often lead environmentalist groups to sit out cases despite their environmental significance. Burlington- Northern & Santa Fe Railway Co. v. United States may have been the most significant Supreme Court cases ever concerning the federal “Superfund” law governing liability for hazardous waste cleanups,10 and yet not a single environmentalist group filed a brief. While resource constraints or internal divisions may prevent the US Chamber of Commerce from participating in some relevant cases, industry- specific associations almost invariably pick up the slack. The four cases business groups completely overlooked were all disputes between states over the management or control of resources in which business interests were scarcely implicated.[1]

Business interests often seek less government regulation, but not always. Environmental policy decisions tend to benefit some business interests even as they may impose costs on others. Business groups have often supported the enactment of environmental laws. Indeed, the federalization of environmental law was driven, in part, by national firms that sought to displace variable and potentially more stringent state standards with federal rules.[2] In some cases, business interests have sought to use regulatory policy as a means of achieving comparative advantage, such as by disadvantaging competitors or creating barriers to entry.[3]

Environmental controversies can pit one set of industry groups against another, as when incinerators and cement kilns face off on air emission standards or oil and agribusiness fight over energy policy.[4] When various industry groups filed suit in federal court challenging Environmental Protection Agency (EPA) regulations designed to increase the use of biofuels, those industries that stood to benefit intervened in support of the agency rules. This was also true in the Roberts Court’s most high-profile environmental case, Massachusetts v. EPA. While most business groups lined up against interpreting the CAA to apply to GHGs, businesses hoping to gain financially from the imposition of GHG controls filed briefs on the other side.[5] Indeed, one of the firms seeking greater environmental regulation in Massachusetts was before the Roberts Court two years later seeking less stringent environmental regulation in another context.[6] National groups often favor federal preemption of conflicting state and local measures, whereas regional groups may support state or local regulatory initiatives.

Even when it is relatively easy to identify the probusiness side of an environmental law case, not all probusiness positions or decisions are the same. There is a meaningful difference between a court decision that maintains a status quo favored by business interests and a decision that shifts the law in a probusiness direction. Ratifying a legislative deal or administrative ruling supported by business interests is quite different from judicial invalidation of regulatory initiatives. Adopting a narrow interpretation of a federal statute creating private rights of action against corporations is quite different from imposing constitutional limits on punitive damages or regulatory impositions. The latter may be evidence of an actual probusiness bias, while the former may illustrate nothing more than deference to the political branches, and may only yield probusiness outcomes so long as the political branches are sufficiently sympathetic to business interests. And insofar as the vast majority of cases in which the Roberts Court has adopted probusiness outcomes are of the former variety, this should inform our assessment of the extent to which it is a meaningfully probusiness court, particularly as recent political shifts may portend a less business-friendly legislative and executive branch.

  • [1] These cases are Montana v. Wyoming, 131 S.Ct. 1765 (2011), Alabama v. North Carolina, 560U.S. 330 (2010), South Carolina v. North Carolina, 558 U.S. 256 (2010), and New Jersey v. Delaware,552 U.S. 597 (2008).
  • [2] See, e.g., E. Donald Elliott, Bruce A. Ackerman & John C. Millian, Toward a Theory of StatutoryEvolution: The Federalization of Environmental Law, 1 J.L. EcoN. & Org. 313, 326-29 (1985); DavidSchoenbrod, Why States, Not EPA, Should Set Pollution Standards, in Environmental Federalism259, 260-62 (Terry L. Anderson & P. J. Hill eds., 1997).
  • [3] See generally Jonathan H. Adler, Clean Politics, Dirty Profits: Rent-Seeking Behind the GreenCurtain, in Pol. Environmentalism (Terry Anderson ed., 2000); Todd J. Zywicki, EnvironmentalExternalities and Political Externalities: The Political Economy of Environmental Regulation and Reform,73 Tul. L. Rev. 845 (1999); Environmental Politics: Public Costs, Private Rewards(Michael S. Greve & Fred L. SmithJr. eds., 1992).
  • [4] See Adler, Clean Politics, supra note 13.
  • [5] Among those businesses and trade associations that supported the state and environmental petitioners in Massachusetts v. EPA were the Aspen Skiing Corporation, Calpine, and Entergy. Varioustrade associations and groups representing renewable energy interests also supported the imposition of greenhouse gas controls. See Massachusetts v. EPA, 549 U.S. 497, 511 n.15 (2007). See alsogenerally Stuart Buck & Bruce Yandle, Bootleggers, Baptists, and the Global Warming Battle, 26 Harv.Envtl. L. Rev. 177 (2002).
  • [6] See Entergy Corp. v. Riverkeeper Inc., 556 U.S. 208 (2009).
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