A Final Look Back at the Supreme Court's 2008-2009 Term

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 ... 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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