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Nothing Environmental about Environmental Cases

During the Rehnquist Court, commentators began to note that the Supreme Court did not appear to perceive environmental law as a distinct area of law, let alone to allow environmental concerns to affect their legal analysis.[1] As Professor Lazarus wrote in 1999, environmental protection concerns “at best” appear “to play no favored role in shaping the outcome” of the Court’s decisions. Rather, “the Court’s decisions and the attitudes of individual Justices, reflect increasing skepticism of the efficacy of environmental protection goals and the various laws that seek their promotion.”[2]

Even when upholding broad assertions of regulatory authority or turning away industry challenges to environmental laws, the Court rarely comments on the ecological consequences of its decision. In 2001 when a unanimous Court rejected a frontal challenge to CAA and concluded that the agency could not consider economic costs when setting health-based ambient air-quality standards, there was little discussion of the importance of federal regulation in safeguarding the nation’s air quality or the EPA’s record of pollution control.[3] To the Court, the relevant questions were simply matters of statutory interpretation and administrative law.

This pattern has continued under Chief Justice Roberts. With the exception of Justice Stevens’s opinions for the Court in Massachusetts and dissenting in Rapanos, none of the Roberts Court’s environmental opinions evince much concern with the environmental content of the issues at hand. That these cases involve environmental concerns is simply incidental to the legal issues. That environmental cases may represent a significant portion of the Roberts Court’s docket has not changed this fact. As Professor James May notes, “[T]he surfeit of environmental cases is likely less about any sort of acceptance or rejection of an environmental ethic than it is about ideological fault lines. Rather than being about environmental law or policy, the court’s environmental cases ironically have become a fitting surrogate for the jurisprudential ideologies of [the] court’s conservative wing to curtail federal power, promote state’s rights, and protect private property rights.”[4]

In United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, the Court took a small step back from protecting private waste- management firms from solid waste flow-control ordinances and government- sanctioned monopolies.[5] In 1994, in C & A Carbone, Inc. v. Clarkstown, the

Court had held that the Dormant Commerce Clause prohibits local communities from enforcing local flow-control ordinances that require waste haulers to send all waste to a single private waste-processing facility.[6] In United Haulers, the Court announced that the Carbone rule only applies to private facilities, and that the dormant commerce clause does not prohibit local communities from enacting an identical statute for the benefit of a public waste-processing facility, clearing the way for the creation of government-run monopoly waste-processing services and the balkanization of interstate markets in waste-management services.

Whereas earlier Dormant Commerce Clause cases involving waste- management regulations sometimes elicited opinions discussing the particular concerns raised by improper waste disposal (albeit typically in dissent) the opinions in United Haulers give little indication that this is an environmental case. Insofar as the justices have differing conceptions of the proper scope of the Dormant Commerce Clause, there is as yet no indication that these views are affected if such claims arise in an environmental context.

In American Trucking Assns v. Los Angeles (ATA) the Court likewise ignored the particular environmental concerns raised by the city and environmentalist groups to apply well-settled preemption principles. The City of Los Angeles had adopted requirements that trucking companies agree to comply with various regulatory requirements in return for access to the Port of Los Angeles. These requirements were designed to assuage the concerns of local residents and environmental groups about the potential environmental and other effects of expanding the port. In a brief opinion, Justice Kagan made quick work of the city’s claims that these requirements were not preempted by the Federal Aviation Administration Authorization Act of 1994, which bars such local rules “having the force and effect of law"[7] [8] As examined by the Court, ATA was a simple preemption case, and there was nothing noteworthy about the environmental concerns the city had sought to address.

Another case illustrating how the justices tend to focus on the underlying legal questions without regard for the environmental aspects of a case is Southern Union Co. v. United States.124 Here the Southern Union Company was found guilty of violating the federal Resource Conservation and Recovery Act (RCRA) for storing mercury-laden wastes without a federal permit. Because RCRA authorizes penalties for each day a firm is in violation of applicable requirements, the District Court concluded that Southern Union could be liable for more than $38 million in fines. Southern Union challenged this conclusion alleging that because the jury had found only a single violation, it could only be fined for one day.

In assessing Southern Union’s claim, the Court paid little attention to the potential environmental consequences of Southern Union’s behavior, instead focusing on the nature of the Constitution’s jury trial guarantee. The only issue for the Court was whether the constitutional rule announced in Apprendi v. New Jersey—that any fact that increases the maximum penalty authorized for a given crime must be found by the jury beyond a reasonable doubt—applies to criminal fines.[9] Justice Sotomayor, joined by five other justices, concluded that it does; three justices dissented. In reaching this conclusion, the Court could just as easily have been considering any sort of white-collar crime. That the threat of environmental contamination was at stake was completely incidental.

  • [1] See, e.g., Richard J. Lazarus, Thirty Years of Environmental Protection in the Supreme Court (1999Garrison Lecture), 19 Pace Envtl. L. Rev. 619 (2002); see also Richard J. Lazarus, Restoring What'sEnvironmental About Environmental Law in the Supreme Court, 47 U.C.L.A. L. Rev. 703 (2000).
  • [2] See Lazarus, Thirty Years supra note 118, at 630-31 (emphasis in original).
  • [3] See Whitman v. Amer. Trucking Assns., 531 U.S. 457 (2001).
  • [4] James R. May U.S. Supreme Court Decisions: Review for 2006-07 and Outlook, 38 Env’t Rep.1851 (Aug. 24, 2007).
  • [5] United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007).
  • [6] C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994).
  • [7] Am. Trucking Ass’ns v. Los Angeles, 133 S. Ct. 2096 (2013).
  • [8] S. Union Co. v. United States, 132 S. Ct. 2344 (2012).
  • [9] Id. at 2348-49.
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