Environmental interests were trounced in the 2009 Supreme Court term that ends Monday.
In five high-profile cases, the justices overturned decisions that favored environmentalists. They ruled in favor of the Navy in a case pitting national security concerns against the welfare of marine mammals; limited the scope of liability for a Superfund cleanup; and reversed a decision that held no cost-benefit test could be used to determine the best technology for withdrawing water from rivers to cool power-plant turbines.
In addition, the court held that five conservation groups lacked standing to challenge U.S. Forest Service regulations and found that the Army Corps of Engineers, not U.S. EPA, has permitting authority over mining-waste discharges under the Clean Water Act.
"This term's environmental decisions, taken as a whole, convey a message of extreme hostility to the goals and methods of environmental law," said John Echeverria, director of the Georgetown University Law Center's Environmental Law and Policy Institute. "Based both on the specific cases the court selected for review, and the court's actual decisions in the cases, the overall effect of the rulings has been to weaken environmental protections across the board."
Supreme Court watchers and the attorneys representing parties involved in these cases offered varying theories about why the notoriously tight-lipped court ruled a certain way and unanimously pointed to a perceived interest among the justices in environmental-themed cases.
"All we really know for sure is that there seem to be at least four justices who are willing to reach out and examine environmental cases with consistency," said Jay Austin, who heads the Environmental Law Institute's program monitoring Supreme Court environmental litigation. "Of course it's interesting to note that these are almost uniformly the cases that they end up opposing."
Echeverria attributed the 100 percent reversal rate on environmental-themed decisions this term to "serious concern on the part of the court's conservative majority about potential undue regulatory burdens on business."
That would be an acceptable rationale for the Pacific Legal Foundation's Steven Geoffrey Gieseler, who filed a friend-of-the-court brief backing the government and private parties in the Navy sonar and power plant cases.
Gieseler welcomed the court's majority decisions, which he described as "narrow and pragmatic."
"All in all, and not just limited to environmental cases, the court this year seemed much more interested in consensus building, and to that end, the major decisions were much more narrow in scope," he said. "What could be described as real ideological 'home runs' on some of these issues were avoided in favor of more narrow and pragmatic rulings on the merits of each case."