40 Years Without Scoring a Win

• Author: Richard Lazarus
• Position: Justice William J. Brennan Jr. Professor of Law at Georgetown
• Pages: 12-12

Page 12 ❧ THE ENVIRONMENTAL FORUM Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, May/June 2010

By Richard Lazarus

40 Years Without

Scoring a Win

My f‌irst essay in this space, pub-

lished 15 years ago this spring,

had a title that could be used again for

this column: “A Lean Green Docket

is Term.” en, as now, the Su-

preme Court followed up a term that

was marked by a disproportionately

large number of environmental cases

with a term with almost none. On

April 27, the second to last oral argu-

ment day, the Court will have heard

argument in Monsanto v. Geertson

Seed Farms, which is the one and only

classic “environmental law” case that

the Court will be hearing during the

entire term. (Disclosure: I am serving

as co-counsel for the environmental

respondents.)

At issue in Monsanto is the award of

a permanent injunction based on a vi-

olation of the National Environmental

Policy Act. Greens, led by the Center

for Food Safety, challenged the federal

Animal Plant Health and Inspection

Service’s decision to deregulate geneti-

cally altered alfalfa seeds without f‌irst

preparing an environmental impact

statement. e district court agreed

that the federal agency had violated

NEPA, and both vacated APHIS’s

decision and issued a permanent in-

junction. Neither the federal agency

nor industry appealed the merits of

the NEPA ruling or the vacatur, and

instead challenged only the validity of

the permanent injunction.

If history were to repeat itself in

Monsanto, there is not much doubt

where Las Vegas oddsmakers would

be establishing the betting lines. e

Supreme Court has previously decid-

ed 16 NEPA cases on the merits since

President Richard Nixon signed the

law 40 years ago. Environmentalists

have been the respondents in each of

those cases, having won in the lower

courts, and therefore they had every-

thing to lose in the High Court. And,

that is precisely what has happened.

ey have lost all 16 cases. And, add-

ing insult to injury, environmentalists

did not receive the vote of a single jus-

tice between 1976, when the Court

decided Kleppe v. Sierra Club, and No-

vember 2008, when the Court decid-

ed Winter v. Natural Resources Defense

Council.

Now, that’s quite a streak. It re-

minds me of the Uni High School

basketball team’s los-

ing streak of 96 games

between February

1974 and November

1979 — a streak that

I prefer not to recol-

lect because I was not

good enough to play

on the Uni team. But even Uni High

did not lose all those games without

scoring a single basket.

Nor does the appellate court of ori-

gin, standing alone, suggest a dif‌ferent

outcome. e Monsanto case hails from

the Ninth Circuit, and the Supreme

Court in recent decades has seemed al-

most to take extra pleasure at reversing

Ninth Circuit rulings favorable to en-

vironmentalists. Making matters even

worse, the environmental respondents

in Monsanto will not have the potential

support of Justice Stephen Breyer, who

while on the First Circuit wrote favor-

ably about the availability of injunc-

tive relief for NEPA violations. Justice

Breyer is not participating in the case

because his brother, Charles Breyer,

was the district court judge who ruled

in favor of the environmental plaintif‌fs

and awarded them permanent injunc-

tive relief.

Dif‌ferences between the Monsanto

case and prior High Court NEPA cas-

es, however, of‌fer the possibility of a

dif‌ferent outcome this time. First, one

reason given for the federal govern-

ment’s perfect record in NEPA cases is

the care that the solicitor general has

taken to seek Supreme Court review

only in cases that are not only impor-

tant, but also winnable. In Monsanto,

however, the SG did not seek certiorari

on behalf of the federal agency, which

had lost below. Industry intervenors

f‌iled the only cert petition, which the

government opposed. To be sure, the

SG agreed with industry intervenors

that the lower courts had erred, and

now joins industry in the brief‌ing on

the merits. But the federal govern-

ment’s opposition at the jurisdictional

stage may also say something about its

views of the strength of petitioners’ le-

gal arguments.

Another advantage enjoyed by en-

vironmental respon-

dents in Monsanto is

expert Supreme Court

counsel (present com-

pany excluded). e

environmental re-

spondents retained

as pro bono counsel

for the preparation of the merits brief

and the presentation of oral argument

Larry Robbins, who is the lead partner

of a small D.C. boutique law f‌irm that

specializes in appellate and Supreme

Court advocacy. As I have reported

in prior columns, the federal govern-

ment has long enjoyed the advantage

of being represented in the Court by

the SG, and industry has in recent

years increasingly retained expert pri-

vate sector counsel to their signif‌icant

advantage in environmental cases. In

Monsanto, the playing f‌ield will be

evened some.

e Court will likely decide the

case during the f‌inal weeks in June,

just before recessing for the summer.

en we will learn whether environ-

mentalists lose No. 17 or instead make

history.

Richard Lazarus is Justice William J. Brennan

Jr. Professor of Law at Georgetown. He can be

reached at laza rusr@law.georgetown.edu.

I  C

Enironmental ists have

lost all 16 NEPA cases

on the merits, boding il l

for this term’s decision