Another contributing factor could simply be that four of the five environmental-themed cases on review came from the 9th U.S. Circuit Court of Appeals, said Robert L. Fischman, an environmental law professor at Indiana University Maurer School of Law.
The 9th Circuit, which hears appeals in federal cases from Alaska to Arizona, is by far the largest of the 13 circuit courts. For many years, the court has held the distinction of having the most cases overturned on review.
"The fact that the 9th is so big geographically it is certainly a factor," said Thomas Jackson, a Washington D.C.-based environmental lawyer who argued on behalf of corporate trade groups in the Superfund cases. "There do tend to be a number of environmental cases that arise out of the 9th Circuit as well. I think historically, environmental organizations probably preferred to file in the 9th Circuit because they believed it was a circuit that was sympathetic to their viewpoints."
Elite attorneys 'made a big difference'
Environmental issues have become increasingly popular among the elite group of private-sector attorneys who regularly argue high-profile cases before the Supreme Court. This could explain why the justices decided to accept these particular cases, according to Georgetown University law professor Richard Lazarus, who has represented more than 40 clients in environmental cases before the court.
"Some of the best Supreme Court lawyers in the country represented industry groups and should be given credit for successfully getting review," said Lazarus, who argued on behalf of the group Riverkeeper Inc. in one of the Clean Water Act suits before the court this term. "This was the term in which expert Supreme Court private-sector attorneys came into environmental law and made a big difference."
Lazarus pointed to former Solicitor General Ted Olson, who successfully represented Coeur Alaska and the state in the case decided earlier this week, and Maureen Mahoney of Latham & Watkins LLP, head of the D.C. firm's appellate and constitutional practice, who represented the winning sides in both the Superfund and Clean Water Act cases.
"These are a handful of extremely well-respected and well-known Supreme Court lawyers who receive a great deal of deference from the justices, who only hear about 70 or 75 cases per year," Lazarus said. "Supreme Court law firms often can't charge top dollar for these cases because they involve a 'no pay' client -- such as a criminal defendant suing on 4th Amendment grounds. Environmental cases with major industry groups and all of those who will file amicus briefs can be taken straight to the bank."
Lazarus returned to the subject of possible Supreme Court deference when speculating about why the justices declined to hear a high-profile case involving confusion created by the court's 2006 decision in Rapanos v. U.S., a global climate change case.
"U.S. v. McWane Inc. was absolutely cert worthy. The solicitor general petitioned for review, there was a circuit conflict and it involved a major threshold question in environmental law," he said. "So why did the court decline to hear the case? Miguel Estrada wrote a very effective brief in opposition."
Estrada, a partner at Gibson, Dunn & Crutcher LLP who was nominated for a circuit seat by President George W. Bush, has argued more than 17 cases before the high court and briefed many others.