The case that got away
In Rapanos, a 4-1-4 Supreme Court offered a splintered decision on enforcement of Section 404 of the Clean Water Act, which concerned whether wetlands or waterways fall within the jurisdiction of the law.
In the McWane case, the solicitor general asked the high court to clarify its decision in a case from the 11th U.S. Circuit Court of Appeals that turned on whether a Birmingham, Ala., pipe manufacturer had violated the Clean Water Act. The district and circuit courts had conflicting opinions on the case.
The Pacific Legal Foundation, which argued on behalf of the winning side in Rapanos, also filed an amicus brief that urged the court to take the case, Gieseler said.
"It was a win for us but it was a 4-1-4 opinion and there is a great deal of confusion in the lower courts about which test applies," he said. "It's not just because of the kind of division in the court but also because Justice [Anthony] Kennedy's opinion that is most often held to control is somewhat murky."
Jackson said he expects another opportunity to arise for the court to revisit the issue.
"The court is obviously pretty split on this," he said. "Also, the confusion among the lower courts will probably eventually compel the justices to weigh in again at a time that is appropriate."
Legislation making its way through the Senate would restore the Clean Water Act protections narrowed by Rapanos, which would likely lead to more lawsuits, said Matt Kenna of the Western Environmental Law Center. The Senate Environment and Public Works Committee approved the wetlands bill, 12-7, last week amid strong Republican dissent.
"While environmentalists welcome Congress' action to reverse Rapanos, developers and industry groups will likely mount a direct legal challenge that could eventually make its way back to the Supreme Court," said Kenna, who argued on behalf of the respondents in Summers v. Earth Island Institute.
Assessing the impact
Environmental law experts remain divided on the immediate and long-term significance of the five decided cases.
"Each of these five cases are more significant than the Exxon case decided last year," Fischman said. "Four of the cases deal explicitly with an environmental statute and the one that doesn't -- Summers -- concerns an issue that arises in almost every situation where environmental groups are challenging something that the government does."
While Winter v. NRDC received a majority of media attention because of its national security component, the standing question at issue in Summers v. Earth Island Institute could likely have a broader impact, according to Fischman.