It was, as Greenwire put it, a rough term for environmental interests; in five separate cases the Supreme Court overturned rulings that environmentalists had favored.
CPR Member Scholar Amy Sinden told the NYTimes of one of the themes:
“It’s become a cliché to say the Roberts court is about the expansion of executive power ... and I think it’s true of these environmental cases as well. The court gave the Bush administration discretion. That certainly leaves the Obama administration with discretion to act as well.”
Below is a recap of CPR Member Scholars' reactions to some of the key cases of the term.
Winter v. Natural Resources Defense Council Holly Doremus:
In truth, nobody in the environmental community welcomed the decision—and it certainly wasn't a great day to be a whale—but the decision itself is neither surprising nor sweeping. ... According to the decision, the plaintiffs in these cases—environmental-advocacy groups, for the most part—must show that the potential harm to the environment outweighs the defendant's and the public interest in proceeding with the action. In other words, was sonar sufficiently important to the Navy (and thus the public) that the harm to the whales was justified? That has long been the legal test; Thursday's decision simply made it a bit more difficult for environmental plaintiffs to get injunctive relief in the 9th Circuit (which had been the most generous among the federal courts). The change is not dramatic.
Wyeth v. Levine Nina Mendelson:
When Congress wrote the law that guides the FDA pharmaceutical regulation, it steered clear of explicitly preempting state tort laws. The message from today's ruling is that if Congress had wanted to preempt state tort laws, it needed to say so. The Court rightly held that a federal agency like the FDA can't simply preempt a state law on the strength of its own assertion.
Entergy v. EPA Amy Sinden:
Today's Supreme Court decision is a significant loss for the protection of fish and river ecosystems, but it keeps the door open for the current and future administrations to protect our waters -- if they choose to. The saving grace today is that the Court left intact the technology-based standards in the Clean Water Act that protect our rivers and streams from the discharge of pollutants. This decision is narrow enough to leave the Obama administration the leeway to proactively protect our waters, and the EPA will have to step up to the task.
Coeur Alaska v. Southeast Alaska Conservation Council Victor Flatt:
As bad as this decision is for the environment, the damage from any similar future scenarios could be contained, either by the agencies undergoing a more formal rulemaking, or, preferably, Congress addressing any ambiguity legislatively. The damage done to administrative law jurisprudence, though, is far more dangerous. The majority (Roberts, Kennedy, Alito, Thomas, Scalia, and Breyer) decided to “defer” to the agencies' decision to act in this way rather than examine the law on their own. This deference, which would usually only come when the agency has undergone a procedure with public input that alters a legal regime, has not been granted by the court for less formal procedures since at least 1984, on the theory that the court cannot abdicate its responsibility to interpret the law.
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Ben Somberg | July 7, 2009
It was, as Greenwire put it, a rough term for environmental interests; in five separate cases the Supreme Court overturned rulings that environmentalists had favored. CPR Member Scholar Amy Sinden told the NYTimes of one of the themes: “It’s become a cliché to say the Roberts court is about the expansion of executive power … […]
Holly Doremus | July 6, 2009
Cross-posted by permission from Legal Planet. For much of the past decade, the Department of Agriculture regulations governing land and resource management planning in the national forests have been a kind of political ping-pong ball, bounced back and forth between administrations, and between the executive branch and the courts. Now the U.S. District Court for […]
Catherine O'Neill | July 2, 2009
California has expanded its fish consumption advisory, warning people to curtail or eliminate entirely their consumption of nineteen species of fish caught off the Palos Verdes Peninsula in Los Angeles County. Among the new advisory’s recommendations is that humans should avoid eating white croaker, topsmelt, or barred sand bass caught in an area extending more […]
Thomas McGarity | July 2, 2009
On Wednesday, Representative Henry Waxman introduced a comprehensive “Food Safety Enhancement Act” (116-page discussion draft) to repair part of a federal food safety protection regime that has been badly broken for several decades. Waxman was joined by Representatives Diana DeGette, John Dingell, Frank Pallone, Bart Stupak, and Betty Sutton; the House Energy and Commerce Committee […]
Rena Steinzor | July 2, 2009
As expected, Cass Sunstein's nomination for Administrator of the Office of Information and Regulatory Affairs (OIRA) was approved Wednesday by the Senate Committee on Homeland Security and Government Affairs. Senator Tom Coburn (R-Okla.) alone voted against confirmation (we’re guessing his vote was not motivated by concerns over Sunstein’s past support for cost-benefit analysis and strengthening […]
Holly Doremus | July 2, 2009
This item is cross-posted by permission from Legal Planet. Last week, Interior Secretary Salazar and Commerce Secretary Locke issued a press release announcing that they were withdrawing the Bush administration’s midnight rules relaxing the ESA section 7 consultation requirements. (Background on the Bush rules is here, here, and here.) The notice formalizing that decision has […]
Ben Somberg | July 2, 2009
A string of recent developments have brought the issue of contaminated drywall back into the headlines (we last wrote about the issue here). Last week EPA released the results of tests it did on two Chinese drywall samples taken from a Florida home. They found sulfur, as well as two organic compounds associated with acrylic […]
Rena Steinzor | July 2, 2009
The Chesapeake Bay watershed covers 64,000 square miles, measuring 200 miles in length and 35 miles at its widest point. The watershed is one of the most beautiful and economically productive in the world. Tourism, which depends to a large extent on the preservation of pristine environmental conditions, contributes billions of dollars to the economies […]
James Goodwin | July 1, 2009
Earlier this month, representatives from the military and a number of defense contractors had a closed-door meeting with officials at OMB's Office of Information and Regulatory Affairs (OIRA). The topic under discussion was ostensibly a Safe Drinking Water Act regulation for perchlorate—a highly toxic chemical used in the manufacture of rocket fuel—that the EPA is currently […]