Not at All: Environmental Sustainability in the Supreme Court
| Author | James R. May |
| Position | professor of law and graduate engineering (adjunct), and the H. Albert Young Fellow in Constitutional Law at Widener University, and Associate Director of the Widener Environmental Law Center |
| Pages | 20-29 |
20FALL 2009
not at all:
environmental SuStainability in the Supreme court
by James R. May*
INTRODUCTION
The princip le of “sustainabil ity” is soon to mark its 40th
anniversary. It is a concept th at has experienced both
evolution and stasis. It has shaken the legal founda-
tion, often engaged , recited, and even revered by policymak-
ers, lawmakers, and academics worldwide. This essay assesses
the extent to which sustainabil ity registers on the scales of th e
United States Supreme Court, particul arly during the tenure of
Chief Justice John Roberts.
Sustainability entered the general public conscience in 1972
with the Stockholm Dec laration on the Human Environ ment.1
In 1987 it secured center stage when the World Commission on
Environment and De velopment relea sed its pioneering study,
Our Common Future,2 which defines “sustainable development”
as “ development . . . that . . . meets the needs o f the p resent
without compromising the ability of future generations to meet
their own needs.”3 In 1992 the Earth Summit’s Rio Declaration
declared th at sustainable develo pment must “respect the inter-
ests of all and protect the integr ity of the global en vironmental
and d evelopmental system. ”4 The Rio Declaration’s blueprint
document, Agenda 21, pro vides that sustainable dev elopment
must coincidently raise living standards while pr eserving the
environment: “[I]ntegration of en vironment and development
concerns . . . will lead to the fulfillment of basic needs, improved
living standards for all, better protected and managed ecosys-
tems and a safer, more prosperous f uture.”5 The unmis takable
thread that runs through threshold definitions of sustainability is
the interconnectedness of living things, opportunity, and hope.
Recognition of the importance of sustainability has grown
exponentially since the Earth Summit.6 Since then, the concept
of sustainabili ty has been regular ly recognized in in ternational
accords,7 by nations in constitutional, legislative and regulatory
reform,8 by States, m unicipalities and localities in everything
from policy statements to building codes,9 and in corporate mis-
sion statements and practices worldwide.10 Sustainability princi-
ples are shape-shifters, adaptive to most environmental decision
making, i ncluding water an d air quality, species conservatio n,
and na tional environmental policy in the U.S. and around the
globe.11 F urthermore, it h as entered the bloodstream of courts
around the globe as a guiding principle of judicial discretion in
environmental cases.12
There remains one notable bastion still indifferent about if
not immune to sustainability. A situs where the word “s ustain-
ability” is never uttered, nor written, nor argued, nor acknowl-
edged: the United States Supreme Court. Forty years on, it
seems reasonable to expect that at least one member of the most
influential juridical body on the planet would have found a case
or a cause or a controversy befitting a mention of what many
behold as the common denominator in e nvironmental law an d
policy, a field wel l represe nted befo re the Court.13 Yet, this
hasn’t happened. In the roughly 4,000 or so cases the court has
decided during the era of modern environmental law, it has seen
fit to d ecide about 300 “environ mental” cases (those inv olving
pollution co ntrol, natural resourc es and property management,
and energy).14 More than one-half of these cases involve either
State’s or individual property rights, or disposition of the West’s
mineral, land, and water resources, or both. This is a testa-
ment to the southwes t-tinged and Barry Goldwater influenced
ideals of Chief Justice Willi am Rehnquist and Justice Sandra
Day O’Connor, both of whom were raised in Arizona, and who
together served the court for nearly sixty years. When Rehnquist
and O’Connor left the cou rt in 2005 to their success or urban
brethren from the Northeast, Chief Justice John G. Roberts and
Justice Samuel Alito, fair money was that the court’s interest
in environmental cases would wane, diminishing opportunity to
have the Supreme Court engage sustainability.15
Yet the Roberts’ Court has shown more than a passing inter-
est in environmental cases. Chief Justice Roberts’ Court-issued
opinions had something to rejoice or revile for nearly every sus-
tainability enthusiast. The Court decided cases across the envi-
ronmental spectrum: endangered species, cost recovery, climate
change, air and water pollution, the intersection between two of
environmental law’s most venerated statutes, and the overlap
between local solid waste control efforts and the U.S. Constitu-
tion. The Court ruled on the profound, such as whether the Clean
Air Act gives the Environmen tal Protection Agency ( “EPA”)
authority to regulate new vehicle emissions of greenhouse gases
that alter the Earth’s climate (yes ), and the practical, including
whether it is appropriate to issue a preliminary injunction under
the National Environmental Policy Act to ameliorate the impact
of the Navy’s use of submarine detecting so nar (no), whe ther
EPA may u se cost-benefit analyses when deciding how to pro-
tect aquatic life from intake structures (yes), whether an Army
Corps of Engineers’ permit obviates the need to comply with
EPA’s technology based standards under the Clean Water Act (it
* James R. May is a professor of law and graduate engineering (adjunct), and
the H. Albe rt Young Fellow in Constitutional Law at Widener University, and
Associate Director of the Widener Environmental Law Center. He is a former
Council Member of the American Bar Associat ion’s Section of Environmen t,
Energy, and Resources; Chair of the SEER Annual Conference on Environmen-
tal Law; and Chair of the S EER Task Force on Constitutional Law. Professor
May can be reached at jrmay@widener.edu.
21 SUSTAINABLE DEVELOPMENT LAW & POLICY
does), whether intent is a qualifying condition for liability as an
“arranger” under the Comprehensive Environmental Response,
Compensation, and Liability Act (it is), a nd whether plaintiffs
have standing to challenge a national regulation that authorizes
salvage timber sales (they don’t). Each environmental case saw
a different justice write the majority (and in one case, plurality)
opinion, with opinions by Justice John Paul Stevens, Chief Jus-
tice Roberts, and Justice Anthony Kennedy ascendant. Yet, at no
time does anyone mention sustainability.
None of the environmental cases decided thus far during the
tenure of Chief Justice Roberts engage sustainability. The word
“sustainability” does not appear to exist before the Court. It does
not app ear in any majority, concu rring, or dis senting opinion.
While the Court seems to be agnostic about the idea of sustain-
ability as a governing norm, strong astringent reveals that with
some counterexamples the extent to which decisions before the
Roberts’ Court regarding biod iversity, lan d use, air pollut ant
emissions, and cleanup standards impl icate sustainability, they
do so negatively, as discussed bel ow. I conclude tha t factors
having little or nothing to do with sustainability per se are at
the heart of these results. Yet unless and until parties amass the
courage of their conviction and infuse “sustainability” into liti-
gative lexicon and strategy, sustainability will continue to matter
to the U.S. Supreme Court not at all.
PROMOTING BIODIVERSITY
If at all, sus tainability most likely sho uld influence juris-
prudence involving biodiversit y, which often engenders related
notions of sustainable and optimum yields, minimizing adverse
environm ental effects, species conserva tion, and e ven c ost-
benefit analysis. Yet the Supreme C ourt has yet to consider
sustainability per se in reac hing decision in a dispute invo lv-
ing biodiversity. To be sure, decisions issued during the tenure
of Chi ef Justice R oberts involving biodiversity seem contrary
to sustaina bility principles. By way of example, the Court has
been unconcerned about sustainability in evaluating impacts on
marine mam mals, fish stocks, aquatic habitat, and forest man-
agement, discussed below.
marine mammalS
In Win ter v. Natur al Resour ces Defen se Counci l
(“NRDC”),16 the Court reversed the U.S. Court of Appeals for
the Ninth Circuit and ruled 5-4 that the U.S. Navy’s interests in
security and military preparedness outweighs the respondent’s
interest in protecting whales and othe r marine mammal s from
acoustic harm caused by submarine seeking sonar devices.
In Winter, the Court voted to lift a “narrowly tailored” pre-
liminary injunction to enjoin the U.S. Nav y’s use o f mid-fre-
quency active sonar off of the southern California coast, known
as the “SOCAL exercise. ”17 The Navy regards mid-freq uency
active sonar as the sole effective means for detecting and track-
ing enemy diesel-electric submarines. The Navy’s sonar, ho w-
ever, also disrupts marine m ammals that rely upon their own
sonar.
The NRD C challenged the Navy’s f ailure to per form
an environ mental impact sta tement under the Natio nal
Environmental Policy Act (“NEPA”) and attached other claims
under the Coastal Zone Management Act (“CZMA”) and the
Endangered Species Act.
Finding the “ possibility” of causin g irreparabl e environ-
mental har m, the district court issued a preliminary injun ction
requiring, inter alia, the Navy to “power down” (1) completely
if m arine mammals were spotted within 2,200 yards of Navy
vessels o r (2) by seventy-five percent in the pre sence of other
significant “surface ducting” conditions.
Following the in itial grant of pr eliminary inj unction, the
Bush administration then identified the SOCAL exercise to be of
“paramount interest to the United States” and granted the Navy
a waiver from the CZMA. Corresponding ly, the White House
Council on Environmental Quality granted the Navy’s request
for “alternative arrangements for com pliance with” NEPA du e
to a national “emergency.”
Thereafter, the Navy appealed the lower court’s injunction
to the Ninth Circui t. Rather th an lift the injunction, t he Ninth
Circuit remanded to have the district cour t weigh t he exemp-
tion’s impacts on the injunction.
On remand the lower court threw out the “ emergency”
premise behind the Council on Environmental Quality’s “alter-
native arrangements” decisi on. While fin ding it “co nstitution-
ally suspicious,” the lower court did not rule on the legality of
the waiver of CZMA requirements. The Ninth Circuit affirmed,
finding the lower court had not abused its discretion in issuing
the lim ited preliminary injunction.18 Th e Ninth Circ uit stayed
the in junction’s “power down” provision s, however, allowing
the Navy to appeal the case to the Supreme Court. The Navy still
would be subject to the injunction’s four less restrictive cond i-
tions that the Navy did not appeal, including a twelve nautical-
mile no-sonar zone al ong the California coast and e nhanced
monitoring requirements.
Writing for the majority, Roberts reversed the Ninth Circuit
5-4 and vacated the injunction an d its “power down” require -
ments on two g rounds. First, the majority held that the lower
courts’ preliminary injunction analysis applied an incorrect stan-
dard tha t did not require a s ufficient showing of harm. It held
that the lo wer court should have asked whe ther the SOCAL
exercise would result in the “likelihood” rather than the “possi-
bility” of irreparable harm, because the “possibility” standard is
“too lenient.”19 Second, it determined the lower courts had given
short shrift to the Navy’s interests in security and preparedness.
Turning to th e merits, the Court hel d first that respondents
had not met t heir bu rden of showin g irrep arable harm. T he
Court reached this conclusion notwithstanding the Navy’s own
countervailing data, which while both lower courts found to be
“cursory, unsupported by evidenc e [and] unconvincing,” still
revealed that sonar t raining had re sulted in 564 physical inju -
ries and 170,000 behavioral disturbances of marine mammals.20
The environmental respondents also argued that countless other
reported and undetected mass strandings of marine animals had
been “associated” with sonar training.21 Instead, the Court con-
cluded that the Navy had been conducting sonar training fo r
forty years without documented cases of irreparable harm.22
22FALL 2009
Next, the majority concluded that, properly balan ced, the
Navy’s military interests far outweighed respondents’ interest in
protecting and observing marine mammals. It reasoned that bal-
ancing the public interest supporting th e Navy’s national secu-
rity and military prepar edness against NR DC’s public inte rest
in protecting marin e mammals for observa tion and education
“does not strike us as a close que stion.”23 Disagreeing with the
lower courts, the majority found the equities tipped strongly in
the Nav y’s favor: “ To be prepar ed for war is one of the mos t
effectual means of preservi ng pea ce.”24 The ma jority noted
that the p resident deemed active sonar as “essential to nation al
security” because adversari es posses s 300 submarines. Mid-
frequency active sonar, the Navy argued, is “the most effec -
tive technology” for “antisubmarine warfare, a top war-fighting
priority for the Pacific Fleet.”25 Citing senior naval officers, the
majority observed the importance
of training ship crews wit h all
possi ble war s tressors occur -
ring simultaneously, thus m ak-
ing mid-frequency a ctive sonar
“mission critical” for training.26
The imposition of the mitigating
regula tions would re quire the
Navy “to deploy an inadequately
trained submarine force,” which
would in turn jeop ardize th e
safety of the fl eet.27 Imposition
of other mit igating fac tors, the
majori ty held, could d ecrease
the overall effectiveness of sonar
trai ning ge nerally .28 On t he
other hand, “[f]or the plaintiffs, the most serious possible injury
would be harm to an unknown number of the marine mammals
that they study and observe…” in contrast, forcing the Navy to
deploy an inadequately trained antisubmarine force jeopardizes
the safety of the fleet.”29 The majority concluded that the “public
interest in conducting training exercises with active sonar under
realistic conditions plainly outweighs the interests advanced by
the plaintiffs.”30
Thus the major ity found the district court ha d ap plied
the inc orrect standard and abused its discretion on the me rits.
Finding in favor of the Navy, the Court reversed the decisions
below and did not impose the lo wer cou rt’s “ power d own”
requirements.31
While the majority did not engage sustainability principles
at all, the dissent co ncerned itself with just how the SOCAL
exercise affected ma rine mammals. Justice Ruth Bader Gins-
burg, joined by Justice David Souter, dissented: “In light of the
likely, substantial harm to the environmen t, NRDC’s almost
inevitable success on the merits of its claim that NEPA required
the Navy to prepare an EIS, the history of this litigation, and the
public interest, I cannot agree that the mitigation measures the
district court imposed signal an abuse of discretion.”32
In par ticular, Ginsburg had no trouble finding irreparable
harm, and thus, diminution of sustainability. She was dismayed
about how the Court could overlook “170,000 behavioral distur-
bances, including 8,000 instances of temporary hearing loss; and
564 Lev el A harms, including 43 6 injuries t o a beaked whale
populati on nu mbering only 1,121.” She also observed that,
“sonar is linked to mass strandings of marine mammals, hemor-
rhaging around the brain and e ars, acute spongiotic ch anges in
the ce ntral nervous system, and lesions in vital organs.”33 On
balancing the competing interests of the parties, Ginsburg con-
cluded that these injuries “cannot be lightly dismissed, even in
the fa ce of an alleged risk to the effectiveness of the [Navy’s
training exercises].”34
Charting a more solicitous course, Justice John Paul Ste-
vens, joining Justice Stephen G. Breyer, concurred in part and
dissented in part. They wo uld have found that neither court
below adequately explained why the balance of equities favored
the two specific miti gation mea-
sures being challenged over the
Navy’s assertions that it could
not effectively conduct its exer-
cises subject to the c onditions.
They would have remanded for
a more narrowly tailored injunc-
tion, but c ontinued the Nint h
Circuit’s stay conditions as the
statu s quo un til the compl e-
tion of the SOCAL exe rcise,
thus promoting sustainability to
some extent.35
The posts cript is that the
Navy concl uded i ts SOC AL
exe rcise and c omplet ed it s
NEPA environmental impact statement for the SOCAL exercise
in January 2009.
fiSh StocKS
In Entergy v. Riverkeeper,36 the Supreme Court reversed the
U.S. Co urt of Appeal s for the Second Circuit and ruled 5-1-3
that the EPA may conduct a cost-benefit analysis in regulating
the substantial adverse impacts of “cooling water intake struc-
tures” under Section 316(b) of the Clean Water Act.37 Section
316(b) of the act requires that any standards established for
existing discharge sources ensure that the “design, location, con-
struction and capacity” of any such intake structures “reflect the
best technology available for minimizing adverse environmental
impact.”38
Some thi rty years afte r the enactment of the Clean Water
Act, EPA issue d ru les applying Section 316 (b) to existing
dischargers. The ru les allow, but do not requir e, the use of a
cost-benefit analysis before setting performance-based best tech-
nology available standards and in deciding whether to grant site-
specific variances. Cost-benefit analysis is invariably at odds
with sustainability, as it is skewed heavily in favor of industrial
and power producing interests over those in providing access to
sustainable fisheries for future generations.
None of the environmental
cases decided thus far
during the tenure of Chief
Justice Roberts engage
sustainability.
23 SUSTAINABLE DEVELOPMENT LAW & POLICY
The Second Circuit, in an opinion by then judge and now
Justice Sonia Sotomayor, ruled that the language, structure, and
history of Section 316(b) do not permit cost-benefit analysis. It
then remanded the case to EPA to explain the role, if any, cost-
benefit analysis played in EPA’s regulations for existing intake
structures.
Writing for the Court, Justice Anton in Sca lia r eversed,
reasoning that Sect ion 316(b), when read together with other
performance-based provisions of the act, gives EPA disc retion
to base BTA on a cost-benefit analysis. Scalia relied upon a tra-
ditional Chevron two-part analysis. First, he held that Section
316(b) does not contain a plain me aning with regard to cost-
benefit analysis. To be sure, he held that the word “best” invites
many meanings, including that which “most efficiently produces
some good,” even if the “good” is of a lower quality than other
options.39 He also wrote that “minimize” has many mean ings,
and “is a term that necessarily admits of degree [but] is not nec-
essarily used to refer exclusively to the greatest possible reduc-
tion.”40 Sc alia then found that EPA’s inte rpretation of Section
316(b) was reasonable because wh ile the provision “does not
expressly authorize cost-benefit analysis,” it does not show “an
intent to forbid its us e.”41 Thus,
he wrote, it is “eminently reason-
able” to conclude that Congress’
silence on the use of cost-benefit
analysis in cooling tower regula-
tory cases “is mean t to convey
nothing more than a refusal to tie
the agency’s hands as to whether
cost-ben efit an alysis should be
used, and if so to what degree.”42
Justic e Stevens dissen ted,
joined by Souter and Gins burg,
advocating a r esult more consis-
tent with principles of sustain-
ability. Stevens asserted that the
court had “misinterpreted” Sec-
tion 316(b)’s plain language, and
that the majority “ unsettles the
scheme Congress estab lished.”43
According to this view, either the
absence of plain language authorizing cost-benefit analysis, or
congressional silence on the matter, is conclusive, especially in
light of the fact that Congress expressly authorized the use of
cost-benefit ana lysis with powerplant regulations in other con-
texts.44 This, Stevens argued, is “powerful ev idence” of Con-
gress’ decision not to authorize cost-benefit analysis in Section
316(b).45 In Stevens’ view, the Court “should not treat a provi-
sion’s silence as an implicit source of cost-benefit authority.”46
Indeed, quoting Justice Scalia verbatim from another case, he
noted that Congress does not draft fundamental regulatory plans
in “vague terms or ancillary provisions,” and “hide elephants in
mouseholes.”47
Stevens viewed EPA’s int erpretation as u nreasonable and
outcome dete rminative: “[I]n the environ mental context, in
which a regulation’s financial costs are often more obvious and
easier to quantify than its environmental benefits . . . cost-benefit
analysis often, if not always, yields a result that does not maxi-
mize environmental protection.”48
Breyer concurred and presented a middle ground for sus-
tainability, observing that “those who sponsored the legislation
intended the law’s text to be read as restricting, though not for-
bidding, the use of cost-benefit comparisons.”49 He would have
found that the Clean Water Act’s extensive history demonstrates
Congress’ intent to limit cost-benefit analysis. Quoting the act’s
principal sponsor, Senator Edmund Muskie, Breyer wrote that,
“while cost should be a factor in the Administrator’s judgment,
no balancing test will be required.”50 Formal cost-benefit anal-
ysis, he feared, would induce extensive delays and a distorted
emphasis on easily quantifiable factors, running in contrast to the
goal of promoting cheaper, more effective cleanup technology.51
threateneD anD enDangereD SpecieS
In a case that both pit s two of th e nation’s more vener-
ated envir onmental statutes cro sswise, and runs counte r t o
sustainability, the Court decid ed by a 5-4 majority that EPA’s
delegation to a State of an envi-
ronmental permitti ng progr am
unde r the Cl ean Wa ter Ac t
does no t trigger “con sultation”
under the En dangered Spe cies
Act (“ESA”). In National Ass’n
of Home Builders v. Defen ders
of Wildlife,52 an environmental
organization challenged EPA’s
decisio n that it is not autho-
rized to conduct “consultation”
with federal wildlife agencies to
“insure” conservation of threat-
ened and e ndangered spec ies
before delegating Clean Water
Act permit authority to a State.
Secti on 402(b) of t he Clean
Water Act lists cr iteria th at if
satisfied dictate that EPA “shall
approve” the State’s authority
to issue permits under the Act.53 These criteria do not include
effects on threatened and endangered species. On the other hand
the ESA impels that federal agencies “shall” “consult” with fed-
eral wildlif e agencies prior to conducting any “agency action”
“authorized, funded or carried out” by the agency.
Writing f or the majority, Jus tice Samuel Alito u pheld
EPA’s “expert interpretation” (and one it changed from an ear-
lier interpret ation) that the ESA must yield to the CWA’s per -
mitting au thority: “the trans fer of permitting authority to state
authorities—who will exercise that authority under continuing
federal oversigh t to ensure complianc e with relevant mandat es
of the Endangered Species Act and other federal environmental
protection statutes—was proper.”54 Cur iously, the Court held
that Section 7 of the Endangered Speci es Act only applies to
Two cases decided by
the Roberts’ Court
look to future and past
application of the Clean
Air Act and reach
results that promote
sustainability to some
degree.
24FALL 2009
agency actions that are “discretionary.” Because Section 402(b)
is nondiscretionary, Section 7 does not apply, thus diminishing
sustainability.
In so doing, the Court rejected t he U.S. Court of Appeals
for the Ninth Circuit’s conclusions (1) that the ESA, as an inde-
pendent source of legal authority, trumps the CWA, (2) applying
Department of Transportation v. Public Citizen,55 in concluding
that EPA’s approval of Arizona’s National Pollutant Discharge
Elimination System (“NPDES”) permitting program was the
legally relevant cause of impacts to threatened and endangered
species resulting from future private land-use activities, and (3)
EPA’s application of the act is arbitrary and capricious.
Stevens, writing for himself and Justices David Souter,
Ruth Bader Ginsburg, and Stephen Breyer dissented, advocating
a position consistent with sustainability. For that conclusion, the
dissenters relied principally on ESA Section 7’s express applica-
tion to “all federal agencies” for all “actions authorized, funded
or carried out by them,” and the broad reading of the statute dat-
ing back to Tennessee Valley Authority v. Hill.56
habitat
In Coeur A laska, In c. v. Southeast Alaska Conservation
Council,57 the Supre me Court reversed th e Ninth Circuit and
held 5-1-3 that when the U.S. Army Corps of Engineers issues a
Section 404 permit under the Clean Water Act it displaces oth-
erwise applica ble new source pe rformance standards that EPA
applies to pollutant discharges subject to a Section 402 permit.58
This has the effect of eliminating freshwater lake habitat, and
diminishing sustainability.
Coeur Alaska, Inc. sought to open a new gold mine about
forty-five miles north of Juneau, dubbed the “Kensington Gold
Mine,” adjac ent to Lower Sl ate Lake, a “w ater of the U.S .” in
the Tongass National Forest. The Kensington Mine would use
the froth flotation process, producing over the life of the project
about one million ounces of gold and 4.5 million tons of waste
tailings in the form of waste mill slurry. Coeur Alaska hoped to
discharge the slurry into Lower Slate Lake, the most economi-
cally advantageous option. The slurry would consist of about 45
percent water and 55 percent froth flotation mill tailings. Even-
tually the mine would produ ce enough slurry to fill the more
than 50-foot depth of Lower Slate Lake, thus converting the 23
acre lake into a 60 acre impoundment. It was undisputed that this
would “destroy the lake’s small population of common fish …”
and other plant and animal life.59
Upholding the Corps’ and petitioner’s less environmentally
protective interpre tation, the Court ruled that pollutants that
have the effect of changing the bottom elevation of a body of
water may be regulated as “fill ma terial” instead of “pollutant
discharges” subject to new source performance standards. Con-
sequently, the Court held that EPA has jurisdiction to issue Sec-
tion 402 permits for discharges into waters except to the extent
that the Corps regulates the permits to constitute a dis posal of
“dredge or fill material” under Section 404.
Coeur Alaska pits the Clean Water Act’s two principal per-
mitting provisions against one another. On the one hand, the act
prohibits the “discharge of any pollutant” except in compliance
with a permit issued under Section 402, including ne w source
performance standards for categories and c lasses of pollutant
discharges such as “froth flotation mills” here. Froth flotatio n
is a process in which raw ore material is ground into fine gravel
and mixed in slurry with chemicals whereby pebbles of desired
metal float to the su rface for capture and processing. The pol-
luted “waste mill tailings,” laden with mercury, lead, and other
hazardous heavy metals, however, sink to the bottom, destined
for disposal on land, or as in this case, in a nearby body of water.
EPA’s new source performance s tandards prohibit discharges
from froth flotation mills.
On the other hand, the Clean Water Act also prohibits the
“dischar ge of dredge or fill material” except in complian ce
with a permit issued under Section 404. The Corps administers
and issues permits under Section 404 in most States, i ncluding
Alaska. In 2002, EPA and the Corps i ssued joint regulations
defining “fill material” as that which “has the effect of changing
the bottom elevation” of a water of the U.S., including mining
slurry.60 “Fill material” includes “slurry, or tailings , or similar
mining-related materials.”61 Thus, the requirements of the act’s
two permi tting schemes pote ntially converge if discharge of a
pollutant, such as waste slurry mill tailings, also has the effect of
raising the bottom elevation of an affected water body.
Because the sl urry would have the “effect of raising the
bottom elevation” of Lower Slate Lake, Coeur Alaska sought a
Section 404 permit from the Corps. The Corps accepted jurisdic-
tion, finding that the slurry would be “fill material” instead of a
prohibited “pollutant discharge” from froth flotation mills under
EPA’s New Source Performance Standards (“NSPS” ) rules. It
then issued the Section 404 permit, determining that discharging
the tailings into Lower Slate Lake and eventually converting i t
into an impo undment, was the least environmentally damaging
disposal option and was a prefera ble environmental alternative
to filling adjacent wetlands. Contending that all this constituted
an end run around Section 402 and the applicable zero discharge
NSPS, S outheast Alaska Conservation Counc il sued to enjoin
the Corps from issuing the Section 404 permit.
The Federal District Court in Alaska rejected the Southeast
Alaska Conservation Council’s position. It held that unlike with
Section 402 p ermits, new source performance standards do not
explicitly app ly to Section 4 04 permits. Therefore, EPA’s rule
barring froth flotation discharges did not apply once the Corps
assumed jurisdiction.
The Ni nth Circuit reversed, holding that “§ 404’s silence
regarding the explicit and detailed requiremen ts [that apply to
§ 4 02] cannot create an exception to those sections’ strongly
worded blanket prohibitions.”62
Notwithstanding the United States’ opposition, the Supreme
Court granted Coeur Alaska ’s writ of ce rtiorari. The United
States then joined as a petitioner.
The Supreme Court reversed the Ninth Circuit 5-1-3. Ken-
nedy, writing for the Court, upheld the Corps’ interpretation of
the Clean Water Act. First, instead of reviewing the Corps’ inter-
pretation under Chevron,63 Kennedy applied the more searching
25 SUSTAINABLE DEVELOPMENT LAW & POLICY
Mead64 standard of review because, he found, the Corps’ inter-
pretation was not intended to be formal. Nonet heless, Kennedy
upheld the Corps’ interpretation of the Clean Water Act, finding
persuasive the argument that it does not unambiguously apply
NSPS to permits issued under Section 404.
Second, Justice Kennedy held that the Corps properly issued
the Section 404 permit. He observed that “if the tailings did not
go into the lake, they would be placed on nearby wetlands [and]
. . . would destroy dozens of acres of wetlands.”65 Moreover, the
Section 404 permit required Coeur Alaska to cover what used to
be Lower Slate Lake with about four inches of “native material,”
thereby in his view improving the local environment for wildlife
habitat and repopulation.66
Justice Gin sburg dissented, join ed by Stevens and Souter,
reasoning that the major ity’s readi ng of the sta tute “strai ned
credulity” and creates a “loophole” to NSPS: “A discharge of
a p ollutant, other wise prohibited by firm statutory command,
becomes lawful if it contains sufficient solid matter to raise the
bottom of a water body, transformed into a waste disposal facil-
ity. Wh ole categories of regulated industries can thereby gain
immunity from a variety of pollution-control standards.”67
Justice Ginsburg’s diss ent conjured principles of sustain-
ability, observing t hat it was undisputed that the Section 404
permit, i f granted, would “kill all the fish and wildlife” of the
lake, possibly permanently as repopulation was “uncertain.”68
Justice Breyer concurred in the judgment, believing that too
literal an application of NSPS or too narrow an interpretation of
“fill” or “dredge material” would undermine the purpose of the
statute, and with it, some degree of sustainability.69
national foreStS
In Summers v. Earth Island Institute ,70 the Supreme Court
reversed the Ninth Circuit and held 5-4 th at plai ntiffs must
establish, with affidavits, knowledge of future injuries to use of
specific tracks of soon to be harvested national forest land to
demonstrate sufficient “concrete and particularized” injury so as
to satisfy constitutional standing under Article III,71 thus having
the effect of diminishing sustainability.
The Decision Making and Appeals Reform Act requires the
U.S. Forest Service to provide advance notice and an opportu-
nity for comment and appeals processes regarding land and tim-
ber management decisi ons for national forests under the Forest
and Rangela nd Renewable Resour ce Planning Act.72 The For-
est Serv ice issued rules that provide a “categorical exclusion”
for activities that in the aggregate do not significantly affect the
quality of the human environment and do not trigger the need for
either an environmental assessment or an environmental impact
statement under NEPA.73
The Fores t S ervice subseque ntly determined t hat “fire
rehabilitatio n” timber efforts inv olving less than 4,20 0 acres,
or “t imber salvage” involving le ss than 2 50 acres, fall within
this categorical exclusion, including a timber salvage sale of 238
acres in t he Burnt River Project, an area affected by large fires
that swept through the Sequoia National Forest in California in
2002.74
Earth Island challenged both the timber salvage sale for the
Burnt Ridge Project in p articular and the Forest Service’s cat-
egorical exemption rule in general. The parties subsequently set-
tled the action challenging the Burnt Ridge Project, but pressed
ahead on the legality of the underlyin g rule as applied nation-
wide to “many thousands of small parcels.”75 Siding with Earth
Island, the district court blocked the application of the rule.76
The Nint h Circuit affir med, ruling th at the Forest Service
must allow the public to contest internal admi nistrative deci-
sions on small timber-clearing projects such as the Burnt Ridge
timber sale.77
Without reaching the merits, the Su preme Court held b y
another bare majority that Earth Island lacked standing to chal-
lenge the application of the rule nationwide, and dismissed the
case.
Writing for the majority, Justice Scalia held that Earth Island
did not possess any injury in fact because it had voluntarily set-
tled the portion of the lawsuit pertaining to its only member who
suffered any injury that was “concrete and particularized.”78 The
settlement agreeme nt alread y fully addresse d the procedural
injury alleg ed by one mem ber who had v isited the project site
with plans to return: “[W]e know of no precedent for the propo-
sition that when a plaintiff has sued to challenge the lawfulness
of cer tain action or threatened action but has settled that suit,
he retains standing to challenge the basis for that action.”79 The
majority explained that Earth Island “identified no other applica-
tion of the invalidated regulat ions that threatens imminent and
concrete harm” to any of its members who planned to visit sites
where the rules were to be applied.80
Justice Scalia also rejected standing for another affiant who
stated that he had been a long time visitor of Forest Serv ice
sites and would continue to visit sites, some of which would be
subject to the rule. He wrote that the “vague desire to return is
insufficient to satisfy the requirement of imminent injury: Such
someday intentions—without any description of concrete plans,
or inde ed any speci fication of wh en the somed ay will be—d o
not support a finding of the actual o r imminent injury that our
cases require.”81
Justice Breyer dissented, joined by Stevens , Souter, and
Ginsburg, arguing in favor of a position mor e consistent with
sustainability. He noted that the majority’s conclusion is “coun-
terintuitive” because a programmatic failure to provide notice,
opportuni ty for comme nt, an d appe al woul d even tually and
inevitably cause members to suffer concrete injury.82 “To know,
virtually for certain, that snow will fall in New England this win-
ter is no t to know the n ame of each particular town where it is
bound to arrive,” Justice Breyer wrote.83 “The law of standing
does not req uire the latter kind of specificity. How could it?”84
In particular, he noted that a “threat of future harm may be real-
istic even where the plaintiff cannot specify precise times, dates
and GPS coordinates.”85
Justice Breyer also questioned whether the result is consis-
tent wi th precedent r especting standing for future harm in th e
global warming context: “[W]e recently held that Massachusetts
has standing to complain of a procedural failing, namely, EPA’s
26FALL 2009
failure properly to determine whether to restrict carbon dioxide
emissions, even though that failing would create Massachusetts-
based harm which (though likely to occur) might not occur for
several decades.”86
CLEANING UP TOXIC SITES
In Bu rlington N orthern v. Unite d States,87 the Court
reversed the Ninth Circu it an d held 8-1 that liabil ity a s an
“arranger” u nder the Comprehensive Environmental Respons e
Compensation and Liability Act (“CERCLA ”) requires more
than knowledge of chemical spillage; one must intend or plan to
arrange for the disposal at issue. In addition, i t held that CER-
CLA do es not impo se joint and
several liability when there is a
“reasonable basis” to appo rtion
liability.88 Neit her result pro-
motes sustainability.
In Burli ngton Northern, a
now def unct co mpany call ed
Brown & Bryant (“B&B”) once
owned and operated a plant that
stored and d istributed agric ul-
tural chemicals on land owned
in part by predecessors to pe ti-
tioners Burl ington Northern and
Union Pacific Railroad (“railroads”). B&B obtained some of its
chemicals, including D-D pesticide, from the Shell Oil Company
(“Shell”). Shell would deliver the chemicals by truck for transfer
into large storage tanks onsite. Spills sometimes occurred during
delivery, and the tanks leaked, leading to substantial soil and
groundwater contamination.
Eventually EPA and the State of California i nvestigated,
responded, and then filed suit under CERCLA Section 107(a)
against B&B, Shell, and the railroads as “potentially responsible
parties” for the costs of feasibility studies and response action.
The district court found the railroads liable as owners “at the
time of disposal,” and Shell liable as a “person who . . . arranged
for disposal.” The Court, however, decl ined to hold the parties
subject to joint and several liab ility. Instead, it found l iability
to be subject to equ itable apportionment and set the railroads’
and Shell’s liability at nine and six percent, respectively, which
had the effect of limiting the g overnment’s recovery by about
eighty-five percent.
The Ninth Circuit affirmed on liability but reverse d on
apportionment. First, it held that although Shell did not qualify
as a “traditional arranger, ” it could still be held liable under a
“broader catego ry” if the dispos al was a known or foreseeable
by-product of the transaction.89 Second, it reversed the lower
court’s apportionmen t of liability. The Ninth Cir cuit inst ead
held that CERCLA intends for the government to re cover full
response costs against targeted parties, envisioning subsequent
civil actions by them against additional potentially responsible
parties for contribution.90
The Supreme Court reversed the Ninth Circuit 8-1 at both
turns, finding Shel l had not “arranged for disposal,” and that
joint and several liability is not required when it is practicable
to apportion liability. Writing for th e Court, Justice Stevens
maintained that “it is . . . clear that an entity could not be held
liable as an arranger merely for selling a new and useful product
if the purchaser of that produc t later, and unbeknownst to the
seller, disp osed of the pr oduct in a way that led to contamina-
tion.”91 In other wor ds, “arrange” implies action directed to a
specific purpose. Thus, under the statute, “an entity may qualify
as an ar ranger . . . wh en it takes intentional steps to dispose of
a hazardous substance.”92 Arranging fo r disposal must involv e
the purpose of discarding a “used and no longer useful hazard-
ous s ubstance.”93 Steven s acknowledged that determi ning the
arranger’s purpose could involve
a “fa ct-inten sive inq uiry.”94
Rejecti ng the Ninth Circui t’s
analysis, the Court found Sh ell
had not arra nged for disposal:
“ . . . Shell m ust have entered
into the sale of D- D with the
intention that at least a portion
of the product to b e disp osed
of during the transfer process
by one or more of the meth-
ods desc ribed.”95 Thus, J ustice
Stevens conclu ded, Shell was
not liable as an arranger under CERCLA because it did not
“intend” for its chemicals to be released into the environment,
even though it knew it w as delivering its product to a sloppy
operator.96
The Court also held that joint and several liability does not
apply when reasonable apportionment is practicable and upheld
the district court’s initial allocation of liability.97
Justice Ginsburg again urged a position more consistent
with sustainability. She argued in dissent that Shell had arranged
for disposal because it exer cised “the control rein” over deliv-
ery of the D-D pesticide, s pecifying transportation and storage
features that resulted in “inevitable” spills and leaks.98 Indeed,
Justice Ginsburg observed , “[t]he deliver ies, She ll was well
aware, directly a nd routinely resulted in disposa ls of hazard-
ous subst ances through spi lls and leaks for more t han [twenty
years].”99 Shell arrang ed to have its chemicals shipped by bulk
tank trucklo ad stored in bulk storage facilitie s instead of ship-
ping drums.100 Shell knew t hat spil ls occur red duri ng every
delivery.101 It also knew about “n umerous tank fai lures an d
spills as the chemical rusted tanks and eroded valves.”102
Justice Ginsburg was troubled by the blind eye arranger s
may n ow turn t o chemical transport and storage, emb oldened
by the court’s decisi on: “The sales of useful substances [does
not] exonerate Shell from liability, for the sales necessarily and
immediately resulted in the leakage of hazardous substances.”103
She questioned the Court’s dismissal of joint and several liabil-
ity, noting that the lower court “undertook an h eroic labor” by
apportioning costs without the benefit of briefing—indeed, with-
out even a request to apportion—by the parties.104
In some ways,
sustainability seems
consigned to the elected
branches.
27 SUSTAINABLE DEVELOPMENT LAW & POLICY
On the ot her hand, the Court has issued recent opinions in
this context that seem more consist ent with sustainability. In
United States v. Atlantic Res earch Corp.,105 the Court unani-
mously ru led that under CERCLA Section 107(a) private par-
ties n ot subject t o an enforc ement action who incurred “other
necessary response costs” may seek cost recovery claims against
“any other person,” including the Federal Government. At issue
in Atlantic Research was whether such a Potentially Responsible
Party (“PRP”) may recover costs from other PRPs under CER-
CLA Section 107(a) instead of 113(f).106 L ikewise, in Cooper
Industries, Inc. v. Aviall Services, Inc., the Court held CERCLA
does not allo w private parties who hav e voluntarily cleaned up
contaminated property but who have not been the subject of an
EPA e nforcement action to recover “contribution” costs from
other responsible parties under CERCLA Section 113(f).107
WASTE FLOW CONTROL
The Court recently revisited
its dorm ant comm erce cla use
jurispr udence in a way that is
more cons istent w ith susta in-
ability. It upheld a county flow
control ordi nance that requires
all s olid waste generated within
the county to be delivered to a
publi cly owne d count y waste
proce ssing fa cility. I n United
Haulers Ass’n, Inc. v. Oneida-
Herkimer Solid Wa ste Manage-
ment Aut hority,108 t he C ourt
decided that a county’s flow con-
trol ordinance does not violate
the dormant co mmerce clause.
Chief Justi ce Roberts, for a plu-
rality, ap plied the Pike balanc-
ing test and determined that the ordinance does not violate the
dormant commerce clause because it creates at least “minimal”
local bene fits that outweigh whatever “insubstantia l” differen-
tial burden i t may place on interstate commerce: “[W]e uphold
these ordinances because any incidental burden they may have
on interstate commerce does not outweigh the benefits they con-
fer on the citizens of Oneida and Herkimer counties.”109 The
Court rejected the interstate waste hauling companies’ argument
that the ordi nance is per se invalid as economically protection-
ist under Philadelphia v. New Jersey.110 The companies argued
that under C & A Carbone, Inc. v. Town of Clarkstown,111 gov-
ernment instrumentalities may not “hoard wastes” regardless of
whether the “preferred processing facility” is owned by a pub-
lic entity arguably within the “market participant exception” to
the dormant commerce clause. The p lurality disagreed, finding
the public/private distinction is “constit utionally sign ificant.”
Breathing judicial restraint the Court observed: “there is no rea-
son to step in and hand local businesses a victory they could not
obtain through the political process.”112
POLLUTION EMISSIONS
Two cases decided by the Roberts’ Court look to future and
past application of the Clean Air Act and reach results that pro-
mote sustainability to some degree.
climate change
In the Court’s initial foray into the global climate change
imbroglio, the Court decided in Massachusetts v. EPA,113 that
Title II of the Clean Air Act authorizes EPA to regulate gree n-
house gas emissions from new motor vehicles that “endanger”
public health or welfare, thereby promoting sustainable air emis-
sions and en ergy policy . In this cas e, the Commonwealth of
Massachusetts and a litany of mostly downwind “blue” States
and envi ronmental organizations contended that EPA improp-
erly exercised its discretion in denying petition by several States
calling for rulemaking to regulate carbon dioxide and three other
gree nhouse gas e mission s—
metha ne, nitr ous oxi de, and
hydrofluorocarbons—from new
motor vehicl es un der Title II
of the Cle an Air Act. Section
202(a )(1) of t he Act di rects
EPA to regulate t ailpipe emis-
sions that (1) “in his judgment”
(2) “may reasonably be antici-
pated to endanger public health
or welfare.” Massachu setts et
al. maintained both prongs had
been met. EPA argued that the
Clean Air Act do es not aut ho-
rize i t to regulat e emissions to
address global climate chan ge
and that it has discretion not to
regulate based on policy co n-
siderations, including foreign policy.114
The Cour t decided thre e issues. Firs t, that petiti oners
(namely, Massachusetts) demonstrated standi ng under Article
III of the U .S. Constitution to chal lenge EPA’s inaction. The
Court held that States enjoy “special solicitude” in demonstrat-
ing standing. Second, the Court held that greenhouse gas emis-
sions c onstituted an “air pollutant” under the Clean Air Act’s
“capacious definition of air pollutant.” Last, it hel d that EPA
“offered no reasoned explanation” and that it was arbitrary and
capricious for the agency to refuse to decide whether these emis-
sions “endanger public health and welfare” due to policy consid-
erations not listed in the Clean Air Act, mainly foreign policy.115
In di ssent, Roberts questioned Stev ens’ “state solicitude”
standard as an “implicit concession that petitioners cannot estab-
lish standing on tr aditional terms.” S calia thou ght the Court
should have deferred to EPA in what he says is a “straig htfor-
ward administrative-law case,” and that it had “ . . . no business
substituting its own desired outcome for the reasoned judgment
of the [EPA].”116
So perhaps the reason
sustainability doesn’t
exist in the U.S. Supreme
Court is the simplest: it
has yet to be presented to
the Court.
28FALL 2009
new Source review
In the other Clean Air A ct cas e decid ed the same day,
Environm ental Defense v. D uke En ergy C orp.,117 th e Cour t
unanimously held that EPA by regulation could define the word
“modification” differently for different parts of the Clean Air
Act, thereb y potentially reduc ing pollutant emissio ns and pro-
moting sustainability. The case asks whether the term as applied
to an existing Major Emitti ng Facility under the Prevention of
Significant Deterioration (“PSD”) aspect of t he Clean Air Act
refers to “increases” in emission annual quantity or hourly rates.
For the Court, Souter wrote that EPA does not need to harmo-
nize the two regulatory interpretations of the same term. He said
it was reasonable for EPA to interpret the term “modification”
differently in different parts of the statute.118
EPA ini tially had int erpreted the term “modifi cation”
to require New S ource Re view for any operational or facil-
ity ch anges that result in “i ncreases” in net annual emissions.
Duke En ergy contended instead that “modification” under the
PSD program requires an “increase” in hourly emission rates—
as EPA interp rets the term under the New Source Performance
Standards aspect of the Act—but does not reach increased hours
of operation and increased annual emissions, and the U.S. Court
of Appeals for the Fourth Cir cuit agreed. Along the way, EPA
aligned with Duke Energy’s interpretation.
Inter estingly, only interve nor Envir onmental Defen se
sought review. Ironically, EPA initially opposed review, only to
rejoin Environmental Defense after the Court granted certiorari,
then joining Duke Energy’s interpretation of the Clean Air Act
as applied to future rulemaking. Environmental Defense agreed
with EPA’s i nitial inte rpretation of the Clean Air Act. Duke
Energy is not able insofar as it marks the first time since Sierra
Club v. Morton119 that the Court granted review over the Federal
Government’s opposition, at the exclusive request of an environ-
mental organization who does not enjoy support from a State, as
in Massachusetts v. EPA. In the vast majority of environmental
cases the Court grants review at the behest of State or industrial
petitioners who argue for more constrained application or inter-
pretation of an envir onmental law. Moreover, past experience
demonstrates that when the Court grants certiorari in a case with
an environmental group, it nearly always rules against the group.
Duke Energy also is perhaps the only case where EPA opposed
a p arties’ petitio n for review only to rejo in it after the Court
granted certiorari, but then only to stake a legal position oppos-
ing it s original legal position (“increase” in amount, no t rate)
and that of co-plaintiff (Environmental Defense), the petitioner.
DISCUSSION
The Court’s e nvironmental cases do not engage su stain-
ability. If anything, they reveal more about its juris prudential
ideologies than any environmental jurisprudence and invite five
observations. First, the surfeit of sustainability tinged cases does
not necess arily reveal anythi ng about judicial receptiveness to
the concept of sustainability. Rather, these cases are a surrogate
for the jurisp rudential ide ologies of the Court’s cons ervative
wing to curtail federal power, promote State’s rights, and protect
private prope rty rights. If anything, Chief Justice Roberts, and
Justices Alito, Scalia, and Thoma s seem to reject principles of
sustainability, except when it becomes a matter of State’s rights.
Yet curiously when the State’s interest is to protect rather than
develop land a nd environmen t, such as sho reline loss due to
global climate change, these same justices wonder aloud how it
can be that the State has a sufficient interest to protect. All this
seems counterintuitive because su stainability is a qu intessen-
tially “conservative” position insofar as it counsels conservation
and careful consideration of externalized social costs.
Justices Ginsburg and Stevens seem to be much more recep-
tive to notions of sustainability. They argue in favor of greater
consideration of the environmental consequences. Justice Soto-
mayor may be cut from the same cloth, having written the opin-
ion while s itting on the Second C ircuit that the Supreme Court
later reversed in Entergy.
Nonetheless , as Justice Kennedy’s d ecisions go in cases
implicating sustainability, so goes the Court. Justice Kennedy
voted with the majority—or perhaps more accurately the major-
ity voted with him—in each case that implicates sustainability.
Justice Kennedy almost always votes in a manner that does not
promote sustainability.
Second, the Court may just consider the concept of sustain-
ability to be unworkable. The United States lacks “sustainability
law” per se, so it is not surprising that the Court has failed to
engage sustainability law per se. “Sustainability” does not invite
facile definition or j udicially c ognizable guidelines. In some
ways, sustainability see ms consigned to the elected branches .
Indeed, most of the environmental cases that arguably invoke
sustainability place a premium on arguments cloaked in statu -
tory “plain meani ng.” In Atlantic Re search, the Court unani-
mously found that CERCLA Section 107’s reference to “any
other person,” allows cost recovery, indeed, by other PRPs. This
is lik ely to all ow courts t o turn to the merits in myriad CER-
CLA priv ate cost recove ry actions work ing their way through
the federal system. The same plain meani ng thread weaves its
way through Duke Energy, in which the Court gave EPA wide
latitude to interpret “modification.” Duke Energy’s ripple effect
looms large, as it pote ntially subjects more t han 100 of the
nation’s largest and eldest coal-fired power plants, and hundreds
of other existing major emitting facilities, including cement kiln
plants, coke ovens, minerals and metals processors, and petro-
chemical processors, located in Prevention of Significant Dete-
rioration areas, to New Source Review.
Likewise, plain meaning ruled, although only by the slim -
mest of marg in, in both Massachusetts v. EPA and National
Ass’n of Home Builders. I n Massachusetts v. EP A, the Court
promoted the plain meaning of “air pollutant” to include climate
changing gases and that EPA does not have discretion to refuse
to regulate pollu tants that “may reas onably be anticipated to
endanger public health or welfare.”
In National Ass’n of Home Builders, the Court used plain
meaning i n support of elevating the Clean Water Act’s mean-
ing over that of the Endangered Species Act. Section 402(b) of
the Clean Water Act provides “[EPA] s hall approve a [state’s
29 SUSTAINABLE DEVELOPMENT LAW & POLICY
NPDES p rogram] unless he determines that adequate author-
ity does not exist.” The Court was divided 5-4, however, about
whether th e language at issue in these cases is in fact “plain.”
Indeed, Justice Alito’s opinion in National Ass’n of Home Build-
ers ar guably ignores the “ plain meaning” of a provision of a
more specific and subsequentl y enac ted sta tutory provision.
Section 7(b) of the ESA provides that: “[e]ach Federal agency
shall, in consultation with [federal wildlife agencies] insure
that an y [agency ac tion] authorized, funded or carried out by
such agency . . . is not likely to jeopardize the continued exis-
tence of any endangered species or threatened species [or their
habitat].”
Fourth, the Court’s judicial ca pacity does not invite con-
sideration of sustainability. Article III of the U.S. Constitution
grants fe deral courts author ity to resolve “cases” and “contro-
versies” involving the Constitution, laws of the United States, or
treaties. Su stainability falls into none of these categories. Sus-
tainability is a guiding principle, not a constitutionally enshrined
doctrine. No U.S. law requires or even recognizes sustainability.
And, the United States has not ratifie d an in ternational treaty
that does so either. Moreover, no member of the Court studied
environmental law. Non e of the m have m uch if any practical
experience with environmental law in general, and sustainability
in particular. And while some members have regulatory experi-
ence, no ne of the current members have held elected political
office, often the crucible for implementing sustainability. So to
the members of the Court, sustainability is unnoticed.
Finally, and surprisingly, sustainability—even as a govern-
ing pri nciple—isn’t the subject of advocacy before the Court.
Supreme Court litigants of every persuasion—government, pri-
vate, pub lic interest, whom ever—ignore sustainability too. As
far as I can tell, no party in any environmental (or any other
case for that matter) has bothered to invoke “sustainability” in
a pleading, brief, or argument.120 Even amici, with much wider
latitude to advocate policy positions not at issue in any claim,
defense or “Question Presented,” have yet to arg ue that the
Court consider sustainability.121 So perhaps the reason sustain-
ability doesn’t exist in the U.S. Supreme Court is the simplest: it
has yet to be presented to the Court.
Thus, sustainabil ity rem ains a concept in search of law
subject to review by the U.S. Supreme Court. Without a plain
meaning foothold, therefore, sustainab ility doe s not seem to
exist.
CONCLUSION
Early retu rns suggest that environmental cases hold inter-
est for t he Roberts Court. It already has decided about a dozen
core environmental cases in three years, almost three times the
rate during the Burger an d Rehnquist Courts. Yet, sustainabil-
ity seems to matter not at all. Th e Court accepted the business/
industry positi on in Entergy , Coeu r Alas ka, an d Burli ngton
Northern, and the government’s less environmentally protective
position in Summers and Winter. In Home Builders, it held that
EPA’s delegation to a State of an environmental permitting pro-
gram under the Clean Water Act does not trigger “consultation”
under the Endangered Species Act.
The Court seems to be especiall y interested in r eversing
sustainabi lity rei nforcing decisions out of the Ninth Circuit.
Indeed, i t reversed each of the fo ur cases from that circuit for
which it granted review, cases where the Ninth Circuit arguably
agreed with the pro-sustainable result. It also reversed a Second
Circuit opinion that arguably produced an outcome more consis-
tent with sustainability.
There are some counterexamples. In Massachusetts v. EPA,
the Court held that Title II of the Clean Air Act authorizes EPA
to regulate greenhouse gas emissions from new motor vehicles
that “endanger” public health or welfare. In Duke Energy, it held
that EPA by regulation could define the word “modification” dif-
ferently, and more stringently, in different parts of the Clean Air
Act. In Oneida, a plurality concluded that a county’s flow con-
trol ordinan ce—requiring that all solid waste gener ated within
the county to be delivered to the county’s publicly owned solid
waste processing facility— does not violate the dormant com-
merce clause. In Atlantic, it found that under CERCLA Section
107(a) private parties not subject to an enforcement action who
incur “other necessary response costs” may seek cost recovery
claims agai nst “any other person,” including the Federal Gov-
ernment. Each result arguably promotes sustainability.
In sum, the Court seems at worst hostile to, at best agnostic
about, and most likely ignorant of sustainability as a governing
principle.
Endnotes: Not at All: Environmental Sustainability in the Supreme
Court
1 United Nations Conference on the Human Environment, Declaration on the
Human Environment, U.N. Doc. A/CONF.48/14 Corr. 1 (June 16, 1972).
2 World Commission on Environment and Development, Our Common
Future, U.N. Doc. A/42/427 (1987).
3 Id. at 8.
4 United Nations Conference on Environment and Development, Rio Declara-
tion on Environment and Development, U.N. Doc. A/CONF.151/5/Rev. 1 (June
5-16, 1992), [hereinafter Rio Declaration].
5 United Nations Conference on Environment and Development, Agenda 21,
U.N. Doc. A/CONF.151/PC/100/Add. 1 (June 14, 1992) [hereinafter Agenda
21].
6 See agenDa for a SuStainable america 2-3 (John C. Dernbach ed., Envtl.
L. Inst. 2009).
7 See, e.g., ranee K.l. panJabi, the earth Summit at rio: politicS, econom-
icS, anD the environment 17 (Northeastern Univ. Press 1997) (describing how
the Earth Summit in Rio led to a new global consciousness of sustainability in
treaty making).
Endnotes: Not at All: Environmental Sustainability in the Supreme
Court continued on page 81
