Last Term's High Court Decisions Hint at an Incremental Strategy

• Author: Bethany A. Davis Noll
• Position: Executive director at NYU Law's State Energy & Environmental Impact Center
• Pages: 13-13

SEPTEMBER/OCTOBER 2021 | 13

Reprinted by permission from The Environmental Forum®, September/October 2021.

Copyright © 2021, Environmental Law Institute®, Washington, D.C. www.eli.org.

In the Courts

AS the new Supreme Court

terms begins, environmental

professionals are waiting to

see if the justices, one third of them

recent appointments, will take more

aggressive steps in this area than they

did last term. Reading the tea leaves,

there could be monumental changes,

but it is not obvious that the right case

has been brought — yet.

At press time, there is only one

dispute on the Court’s docket that is

squarely environmental. It concerns

the use of the Middle Claiborne Aqui-

fer. Mississippi has challenged Tennes-

see’s use of the water, arguing that the

former should receive an injunction

and damages. Tennessee argues that

the aquifer ows between the states

and is subject to equi-

table apportionment,

the doctrine govern-

ing interstate waters.

at would require a

federal court to divide

the output in a way

that is fair, in light of

factors such as established use and the

benets of use.

e United States and a coalition

of states led amicus briefs in the case,

agreeing with Tennessee that Missis-

sippi cannot receive damages or an in-

junction without a compact or a deci-

sion on equitable apportionment. ey

argue that a damages claim that skips

equitable apportionment for shared

waters such as the aquifer would be a

vast departure from established law.

ere are two other categories of

cases from this past term that might

provide more hints of the Court’s di-

rection. e justices decided multiple

standing cases. at doctrine requires a

plainti to show an injury that is fairly

traceable to the challenged conduct

and seek a remedy that is likely to re-

dress the injury.

e doctrine can have a huge im-

pact on the types of environmental

cases that can be brought. e need

to avoid threatened harm is crucial to

many environmental cases. Tradition-

ally, standing doctrine allowed claims

of imminent threatened injury, rather

than requiring a plainti to have al-

ready suered injury. Two decisions

could be a sign that the Court is chip-

ping away at that doctrine.

In Trump v. New York, the Court

issued a per curiam decision holding

that a coalition including states and

individuals challenging the Trump ad-

ministration’s plan to “exclude aliens

without lawful status from the appor-

tionment base” of the census, had not

shown standing because the claimed

harm was too conjectural. e chal-

lenge had rested on the president’s

words, but it was unclear whether in

practice he would be

able to actually ex-

clude aliens and, if so,

how many.

In TransUnion LLC

v. Ramirez, the credit

reporting company

had oered a service

to third parties to compare the person’s

name against a list maintained by the

Oce of Foreign Assets Control of ter-

rorists, drug trackers, and other seri-

ous criminals. Because TransUnion did

not pull in any information other than

the names when agging those people,

the list of individuals that “matched”

the OFAC list was vastly misleading.

In a 5-4 decision, the Court found

that any plaintis whose records had

not actually been requested during the

specied class period could not show a

concrete risk of injury.

If the injury already happened, on

the other hand, another case helps to

solidify the right to bring a claim. In

Uzuegbunam v. Preczewski, the Court

allowed plaintis to bring a First

Amendment claim, even though the

challenged policy no longer exists. With

eight justices in the majority, and Chief

Justice John Roberts dissenting, the

Court found that plaintis could show

redressability even though the Court

could do nothing about the policy, be-

cause plaintis had requested “nominal

damages” (which they did not specify

any further in the complaint).

General administrative law doc-

trines were also at play last term. On

the reasoned explanation requirement,

in Federal Communications Commis-

sion v. Prometheus Radio Project, the

Court upheld the agency’s decision

to eliminate rules which were meant

to boost minority and female owner-

ship levels in the media. e Court

deferred to the agency’s prediction that

the rollback would not harm those lev-

els, nding that the agency’s decision

to dismiss studies showing harm was

simply a decision to interpret the stud-

ies dierently.

Another administrative law prin-

ciple that can aect agency decision-

making is the amount of deference

a court should give an agency when

interpreting a statute under the Chev-

ron doctrine. e Court has granted

certiorari in American Hospital Associa-

tion v. Becerra, a case where petitioners

challenge the agency’s decision on re-

imbursement rates and argue that the

court of appeals improperly failed to

nd statutory ambiguity before apply-

ing Chevron deference.

With the Biden administration’s

determination to tackle the climate

crisis through an all-of-government

approach, it will be crucial to keep

an eye on the doctrines governing

who can sue and how agencies make

decisions.

Last Term’s High Court Decisions

Hint at an Incremental Strategy

Two decisions chip

away at standing,

but another upholds

agency deference

Bethany A. Davis Noll is

executive direc tor at NYU Law’s

State Energ y & Environmenta l Impact

Center: bethany.davisnoll@nyu.edu.