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The Roberts Court’s Effect on Environmental Law
Overall, business interests have won more cases than they have lost in the Roberts Court. Yet most of the business wins occurred in relatively narrow cases that had little effect on preexisting law, while several of the losses are quite dramatic and will have profound effects on economic interests. The aggregate effect of the probusiness decisions on environmental law and future environmental litigation has been quite meager, while the less business-friendly decisions could have substantial legal and practical consequences for many years to come.
The net effect of the Roberts Court’s environmental decisions may be an increase in federal environmental regulation, particularly under the CAA, even if environmentalist advocates rarely prevailed before the High Court. This does not appear to be due to any nascent environmental concern within the Court, however. The Roberts Court, like its immediate predecessors, has shown little affinity for ecological values or the idea than environmental law is a distinct area of law with distinct requirements.
Judged quantitatively, the Roberts Court has favored business interests in environmental cases more often than not. It has also favored the interests of the federal government, while being largely unreceptive to the entreaties of environmentalist groups. Judged qualitatively, however, there is less evidence of any probusiness orientation in the environmental cases decided by the Roberts Court—at least to date. In a prior study, conducted during the Roberts Court’s fourth term, I noted that the Court’s apparent solicitude toward business could be the result of its deference toward the federal government. During the Bush administration, the Solicitor General often took positions in environmental cases favored by business interests. In this prior study, I speculated that as the Obama administration took less business-friendly positions, the Court would be forced to choose more often between those positions favored by business and those favored by the federal government. As some might have expected, business interests won five of the first six cases argued and decided after President Obama took office. Yet the Solicitor General’s office also prevailed in four of these six cases, and was opposed to business interests in their one loss.
Whether or not one concludes the Roberts Court has been probusiness in its environmental law decisions, it has clearly been unsympathetic to environmental litigants, much as the Court has appeared hostile to other interest groups that seek to use the judiciary to advance social policy or drive regulatory initiatives. The Court’s skepticism of environmentalist litigants could be of a piece with its skepticism of other “public interest” lawyering and its efforts to withdraw from the stage in broader policy battles, whether by heightening the requirements for pleading, enforcing arbitration clauses, deferring to alternative dispute mechanism institutions, or increasing the requirements of Article III standing (at least for nonenvironmental litigants). While not necessarily seeking to benefit business, the Court’s determination not to open new avenues of litigation is certainly an agenda much of the business community likes. So even if the court does not favor business, there are reasons much of the business community may favor this Court.