Business as Usual? The Roberts Court and Environmental Law

JONATHAN H. ADLER

The October 2008 Term was a tough one for environmentalist groups, perhaps even their “worst term ever.”[1] During this term the Supreme Court heard five environmental law cases.[2] In each case the side favored by environmentalist groups had prevailed in the lower court, and in each case the Supreme Court reversed. Business groups, by contrast, were quite successful, having prevailed on the Court both to hear four of the five cases in the first place, and then winning on the merits in each case.[3] It was, according to Professor Richard Lazarus, “the best Term that industry has ever enjoyed before the Court in environmental cases.”[4] Did the October 2008 Term reveal the true tendencies of the Roberts Court? Some commentators were quick to conclude that the Roberts Court had taken a distinctly probusiness and antienvironmental turn. Slate’s Dahlia Lithwick, for instance, wrote that “environmentalists are always buried” by the Roberts Court.[5] Glenn Sugameli of the environmentalist legal group Earthjustice accused the Court of adopting “pro-business blinders,” and Douglas Kendall of the progressive Constitutional Accountability Center accused the Roberts Court of “chipping away at the very foundations of environmental law in this country.”[6] These charges drew upon the larger narrative that the Roberts Court is both more conservative and more favorably disposed to business interests than its predecessors.[7]

The October 2008 Term was unquestionably good for business and bad for environmentalist litigants, but it does not appear to be representative of a broader probusiness trend in environmental law cases. Environmental law academics have long lamented the Supreme Court’s lack of sympathy for, if not outright hostility toward, environmental concern, and the Roberts Court is no more sympathetic to environmental pleas than its immediate predecessors. Nonetheless, the October 2008 Term may be something of an outlier. Only two terms earlier the Court heard eight environmental law-related cases.[8] Perhaps surprisingly, environmentalist groups prevailed in five of the six cases in which they participated, including the most significant environmental law case of the past decade, Massachusetts v. Environmental Protection Agency.[9]

Measured quantitatively, business groups have fared well in environmental cases since John Roberts took his oath. Overall, such groups have prevailed in approximately two-thirds of the environmental cases in which business groups participated during the first nine terms of the Roberts Court. This does not appear to be the result of a particularly laissez-faire judicial philosophy, as government interests have fared well too. Over this same period, the Solicitor General’s office has fared just as well. And when the Solicitor General’s office and business groups were aligned, the combination was nearly unbeatable. State governments also saw their arguments accepted by a majority of the Court a majority of the time. Environmentalist groups, however, saw their positions accepted far less often. Whether or not one concludes the Roberts Court is “probusiness” in environmental cases, it does not appear particularly sympathetic to environmentalists.

Quantitative examinations of the Court’s decisions may reveal patterns in the Court’s decision making, but they fail to account for the relative significance of individual cases. Not all cases are created equal. A handful of small wins that preserve the status quo may be less significant than one decisive loss. Accounting for the subject matter and substantive consequences in the Roberts Court’s environmental decisions casts some doubt on the thesis that the Roberts Court is decidedly probusiness in environmental cases. Some business losses, most notably Massachusetts v. EPA, were quite significant. The Court’s holding that the Clean Air Act (CAA) applies to greenhouse gas (GHG) emissions is far more consequential than any other Roberts Court environmental law decision. At the same time, many of the decisions in which business interests prevailed were quite limited in scope.

Like any contemporary analysis of the Court, this chapter represents a snapshot of a moving target. The patterns that have emerged in the first nine terms of the Roberts Court may not continue. The composition of cases put before the Court is constantly evolving and the replacement of justices over time can influence more than the vote counts in contested cases. The positions advocated by the federal government also appear to influence how the Court perceives cases, as well as what cases it accepts in the first place. Thus the conclusions in this chapter are preliminary and subject to review. Only with the passage of time will we have the perspective necessary to reach a final judgment on the tendencies of the Roberts Court, whether in environmental law or any other area.

  • [1] Adam Liptak, Environment Groups Find Less Support on Court, N.Y. Times, July 3, 2009 (quotingRichard Lazarus).
  • [2] The cases were Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008); Summers v. Earth IslandInst., 555 U.S. 488 (2009), Entergy Corp. v. Riverkeeper Inc., 556 U.S. 208 (2009); Coeur Alaska,Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009); Burlington N. & Santa Fe Ry. Co.v. United States, 556 U.S. 599 (2009). The Burlington Northern decision consolidated two cases, theother being Shell Oil Co. v. United States.
  • [3] See Richard J. Lazarus, Docket Capture at the High Court, 119 Yale L.J. Online 89, 91-92(2010), available at http://www.yalelawjournal.org/forum/docket-capture-at-the-high-court (lastaccessed February 17, 2016).
  • [4] Id. at 91.
  • [5] Dahlia Lithwick, Spoonfuls of Sugar: Americans' Continued Love Affair with the John RobertsCourt, Slate, available at http://www.slate.com/id/2229517/pagenum/all/ (last accessedFebruary 17, 2016).
  • [6] See Lawrence Hurley, Environmental Issues Lose in Supreme Court: Mining Decision is Fifth toDisappoint Activists This Term, Daily Journal, June 25, 2009.
  • [7] See generally Erwin Chemerinsky, The Roberts Court at Age Three, 54 Wayne L. Rev. 947(2008) (arguing that the Roberts Court is the most conservative and most “probusiness” SupremeCourt since the 1930s). For a counterargument, see Jonathan H. Adler, Getting the Roberts CourtRight: A Response to Chemerinsky, 54 Wayne L. Rev. 983 (2008); see also Adler, introduction to thisvolume.
  • [8] The eight cases were BP America Prod. Co. v. Burton, 549 U.S. 84 (2006); Rockwell Int’lCorp. v. United States, 549 U.S. 457 (2007); Massachusetts v. EPA, 549 U.S. 497 (2007); Envtl.Defense v. Duke Energy Corp., 549 U.S. 561 (2007); United Haulers Ass’n v. Oneida-HerkimerSolid Waste Mgmt. Auth., 550 U.S. 330 (2007); United States v. Atl. Research Corp., 551 U.S. 128(2007); National Ass’n of Home Builders v. Defenders ofWildlife, 551 U.S. 644 (2007); and Wilkiev. Robbins, 551 U.S. 537 (2007). Environmentalist groups did not support either side in BP Americaor Rockwell.
  • [9] 549 U.S. 497 (2007).
 
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