It often has been said that when a new Justice joins the Supreme Court, the Court becomes an entirely new Court. On October 6, 2018, the U.S. Senate by a vote of 50-48 confirmed Brett Kavanaugh to be an Associate Justice on the U.S. Supreme Court. Justice Kavanaugh replaced Justice Anthony Kennedy whose retirement became effective on July 31, 2018. Because Justice Kennedy was a swing vote in many important cases, including the Court’s landmark 2007 Massachusetts v. EPA decision, his retirement and replacement by Justice Kavanaugh is likely to have a significant effect on the future of environmental law.
The environmental cases the Court has decided since publication of this edition of the casebook and cases still before the Court
the environmental cases the Court decided in 2018, cases currently before the Court and others that later may come before it.
NAT’L ASS’N OF MANUFACTURERS v. DEPT. OF DEFENSE, No. 16-299
Citation: 138 S.Ct. 617 (2018)
Decision Below: 817 F.3d 261 (6th Cir. 2016)
Cert granted: January 13, 2017
Argued: October 11, 2017
Decided: January 22, 2018
Question Presented: Whether the U.S. Court of Appeals for the 6th Circuit erred when it held that it has jurisdiction under 33 U.S.C. § 1369(b)(1)(F), the portion of the Clean Water Act's judicial review provision that requires that agency actions “in issuing or denying any permit” under Section 1342 be reviewed by the court of appeals, to decide petitions to review the “waters-of-the-United-States” rule, even though the rule does not “issu[e] or den[y] any permit” but instead defines the waters that fall within Clean Water Act jurisdiction.
This case was the product of challenges to the Obama administration’s “waters of the U.S.” (WOTUS) rule, which sought to bring much-needed clarity to the reach of federal jurisdiction under the Clean Water Act in the aftermath of the Court’s 4-1-4 split in Rapanos v. U.S., 547 U.S. 715 (2006). After the WOTUS rule, which was jointly promulgated by EPA and the U.S. Army Corps of Engineers, became final in 2015, 80 Fed. Reg. 37054, lawsuits challenging the rule were filed in several federal district courts and U.S. Courts of Appeals. The challenges filed in the U.S. Courts of Appeal were consolidated in the Sixth Circuit. While expressing some doubts concerning whether it was the proper venue for filing initial challenges to the rule, a panel of the Sixth Circuit refused to dismiss the case for lack of jurisdiction and issued a nationwide stay of the WOTUS rule. In re Dept. of Defense, 817 F.3d 261 (6th Cir. 2016).
A week before President Trump took office, the Supreme Court agreed to review the Sixth Circuit’s decision at the behest of petitioner National Association of Manufacturers. Shortly thereafter President Trump issued an executive order directing EPA and the Corps to consider revising or rescinding the WOTUS rule. Exec. Order 13778, 82 Fed. Reg. 12497 (2017). The government then asked the Court to put the case on hold pending its reconsideration of the WOTUS rule. On April 3, 2017, the Supreme Court denied this motion.
On January 22, 2018 the Supreme Court reversed the Sixth Circuit and decided that proper venue for challenges to the “waters of the U.S.” rule lies in the federal district courts and not the U.S. Courts of Appeal. Justice Sotomayor wrote the opinion for a unanimous Court. The Court held that the plain language of the judicial review and venue provisions in § 509(b) of the Clean Water Act, 33 U.S.C. §1369(b), does not provide for the filing of initial petitions for review in the Courts of Appeal because the rule was not among the categories of actions for which the statute specified such venue. A copy of the decision can be downloaded from the Supreme Court’s website at: https://www.supremecourt.gov/opinions/17pdf/16-299_8nk0.pdf
WASHINGTON v. UNITED STATES, 138 S.Ct. 1832 (2018)
Decision Below: U.S. v. Washington, 853 F.3d 946 (9th Cir. 2017)
Cert granted: January 12, 2018
Argued: April 18, 2018
Decided: June 11, 2018
Justice Kennedy recused himself from the case
Petitioner’s Description of Case:
“In a series of treaties, the federal government promised northwest Indian tribes ‘[t]he right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens.’ This Court has held that this language guarantees the tribes ‘a fair share of the available fish,’ meaning fifty percent of each salmon run, revised downward ‘if tribal needs may be satisfied by a lesser amount.’ Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 685 (1979).
In this case, the Ninth Circuit held that the treaties instead guaranteed ‘that the number of fish would always be sufficient to provide a 'moderate living' to the Tribes.’ On that basis, the panel held that the treaties require Washington to replace culverts under state roads that restrict salmon passage. The court ordered the State to replace hundreds of culverts, at a cost of several billion dollars, even though it is undisputed that: (1) the federal government-the lead Plaintiff-specified the design and granted permits for the overwhelming majority of culverts at issue; and (2) many culvert replacements will have no benefit for salmon because of other non-State owned barriers to salmon on the same streams.”
(1) Whether the treaty “right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.”
(2) Whether the district court erred in dismissing the State's equitable defenses against the federal government where the federal government signed these treaties in the 1850's, for decades told the State to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violated the treaties it signed.
(3) Whether the district court's injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon and Plaintiffs showed no clear connection between culvert replacement and tribal fisheries.
In March 2018, the Court announced that Justice Kennedy has recused himself from this case because of his participation in a 1985 Ninth Circuit decision that presented a similar question. On June 11, 2018, the Court announced that the decision below had been affirmed by an equally divided Court.
TEXAS v. NEW MEXICO, 138 S.Ct. 954 (2018)
First Interim Report of Special Master Filed: Feb. 13, 2017
Exceptions to Special Master’s Report Filed: June 9, 2017
Jurisdiction Noted: October 10, 2017
Argued: January 8, 2018
Decided: March 5, 2018
Transcript of the oral argument available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/141-orig_c07d.pdf
Exception: The United States excepts to the Special Master's recommendation that the United States' complaint in intervention should be dismissed to the extent that it asserts claims under the Rio Grande Compact, approved by Congress in 1939.
In January 2013 the state of Texas sued New Mexico and Colorado, arguing that they are violating the Rio Grande Compact of 1938 that governs distribution among the three states of water from the Rio Grande. The river originates in Colorado, crosses New Mexico where it is dammed at Elephant Butte, a dam operated by the U.S. Bureau of Reclamation’s Rio Grande Project, and later flows into Texas. Texas alleges that New Mexico has violated the Compact by diverting water and pumping groundwater hydrologically connected to the Rio Grande downstream of Elephant Butte. New Mexico argues that its only obligation under the Compact is to deliver water to Elephant Butte. Texas maintains that New Mexico also is allowing its residents to take water downstream from Elephant Butte that is reserved for Texas.
In March 2014 the Court granted the motion of the U.S. to intervene in the litigation in support of Texas. In November 2014 the Court appointed a special master to gather evidence and to report back to it. In February 2017 Special Master A. Gregory Grimsal filed his first report with the Court which finds that U.S. complaint is too broad because the U.S. is not a party to the Rio Grande Compact between the three states. Colorado argues that the Court should limit the claims of the United States to those based on the 1906 Convention between the United States and Mexico for the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes. In June 2017 New Mexico, Colorado and the U.S. filed exceptions to the special master’s report, which were considered by the Court at oral argument on January 8, 2018.
On March 5, 2018, the Court unanimously sustained the exception of the U.S. and held that the U.S. may pursue the Compact claims it has pleaded in this action. In an opinion by Justice Gorsuch, the Court noted that it sometimes has permitted the federal government to participate in compact suits to defend “distinctively federal interests.” The Court cited four reasons for authorizing the U.S. to pursue these claims: (1) “the Compact is inextricably intertwined with the Rio Grande Project and the Downstream Contracts,” (2) “New Mexico has conceded in pleadings and at oral argument that the United States plays an integral role in the Compact’s operations,” (3) “a breach of the Compact could jeopardize the federal government’s ability to satisfy its treaty obligations to Mexico,” and (4) the U.S. is asserting “its Compact claims in an existing action brought by Texas, seeking substantially the same relief and without that State’s objection.”
FLORIDA v. GEORGIA, No. 142 Original
Special Master’s Report Issued: Feb. 14, 2017
Jurisdiction Noted: October 10, 2017
Argued: January 8, 2018
Decided: June 27, 2018
COUNTY OF MAUI v. HAWAII WILDLIFE FUND, NO. 18-260
Petition for Cert filed: August 27, 2018
Decision Below: Hawaii Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018).
Question Presented: Whether discharge of pollutants from wells into groundwater hydrologically connected to the ocean constituted a discharge for which a federal Clean Water Act permit was required.
On December 3, 2018 the Court asked for the views of the Solicitor General to be filed in a brief due by January 4, 2019.
On January 3, 2019 the Solicitor General, without taking a position on the merits, recommended that cert be granted to resolve a conflict in the Circuits.
Cert granted: February 18, 2019
To be argued: November 6, 2019 at 10AM.
ATLANTIC RICHFIELD v. CHRISTIAN, No. 17-1498
Decision Below: Atlantic Richfield Co. v. Montana Second Judicial District Court, Supreme Court of Montana (2017)
Questions Presented: EPA ordered a former smelter site to be cleaned up as per the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Landowners near the site brought action against the site owner for restoration damages and other claims. Montana state court dismissed, and the landowner appealed. The Supreme Court of Montana affirmed and reversed in part, forcing a remand. On remand, the Montana state court denied site owner’s motion for summary judgment as to the claim for restoration damages and granted the landowner’s motion for summary judgment. Site owner petitioned for a writ of supervisory control, where the Supreme Court of Montana held (1) landowners claim for restoration damages arose solely under state common law and did not challenge CERCLA cleanup, and (2) landowners were not “potentially responsible parties” under CERCLA. (1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency ordered is a jurisdictionally-barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act; (2) whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.
On October 1, 2018 the Court asked for the views of the Solicitor General
The Court granted cert in this case in June 2019.
The case will be argued before the Court on December 3, 2019