Environmental Valuation & Cost-Benefit News

The conventional wisdom that the current Supreme Court has taken a "conservative" direction does not apply to the Court's position in the environmental law field. Given that the Court issued five written opinions on environmental matters, or almost 10 percent of its entire written opinions, businesses should be warned that judging the new Robert's Court's ideological trend on the basis of a few highly publicized rulings on school desegregation, campaign finance, or partial-birth abortion procedures may result in an entirely wrong conclusion in the field of environmental law.

The Supreme Court issued written opinions in five environmental cases in the 2006 to 2007 term. The "blockbuster" opinion was a solid antibusiness, pro-environment decision in Massachusetts v. EPA, 127 S. Ct. 1438 (2007), in which a 5-4 majority held that EPA was dead wrong in declining to regulate greenhouse gases as a form of air pollution.... The clear losers in this major environmental case are EPA, which tried to assert the Bush administration's "go slow" policy on regulating climate control, and the automobile industry, which advocated a similar position.
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In United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Management Authority, 127 S. Ct. 1786 (2007), the Court rejected the free enterprise claims of private waste haulers who sought to introduce lower-priced garbage removal services in two upstate New York counties. Rather, a majority of the new Robert's Court, including the Chief Justice himself, sided with the local counties and found that "public" ownership of waste disposal facilities allowed those counties to regulate and control the flow of municipal wastes without interference from the so-called "dormant" Commerce Clause. (Article 1, Section 8, of the Constitution, in part, gives Congress the power to regulate commerce among the states (the interstate commerce clause). ...

In a direct loss for at least a portion of the utility industry, the new "conservative" Supreme Court rejected Duke Energy's efforts to characterize EPA's regulations of a portion of the Clean Air Act as both inconsistent with the statutory scheme and simply inconsistent how EPA applied those regulations over the years. In a 9-0 decision, the Court sided with both EPA and the Environmental Defense Group over Duke Energy (Environmental Defense Fund v. Duke Energy Corp, 127 S. Ct. 1423 (2007)).
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by Norman Dupont, counsel to and assistant department head for environmental law for, the firm of Richards Watson & Gershon, Los Angeles office

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August 27, 2007