Overflow crowd hears post-argument panels discuss cases, pick winners

• Pages: 55-55

ELI REPORT

MARCH/APRIL 2006 ❖ 5 5

Endangered Laws

Program: On the case

around the country

The staff of ELI’s Endangered

Environmental Laws Program, col-

laborating with Seth Waxman and

f‌ive other lawyers at WilmerHale,

developed, researched, and provided

extensive input into the amicus brief.

In addition to contributing to the

brief, Senior Attorneys Jay Austin

and Bruce Myers and Staff Attorney

Lisa Goldman have been hard at

work on EEL’s other objectives, in-

cluding educating the public and key

decisionmakers on evolving legal

challenges to environmental laws

and providing the data, research,

and scholarship that form the basis

of ELI’s response to these threats.

Recent accomplishments of the

program include the f‌irst annual

Endangered Environmental Laws

writing competition for law students.

In February the EEL team applied

their research and analysis expertise

to help ELI Senior Attorney James

McElf‌ish prepare a response to a

request for comments to the House

Task Force on NEPA.

Another prominent achievement

of the program was an extensive

legal research project to examine four

years of decisions in federal envi-

ronmental impact assessment cases.

Judging NEPA: A “Hard Look” at Judi-

cial Decision-Making Under the Nation-

al Environmental Policy Act assessed

trends in NEPA decisions, including

the success rates of NEPA plaintiffs

over the years and correlation of the

political aff‌iliation of judges with

particular case outcomes.

The EEL Program has also con-

tributed to numerous publications,

including the ELI Press book Redef‌in-

ing Federalism, which surveys recent

Supreme Court cases and seeks to

identify the proper roles of the fed-

eral and state governments in envi-

ronmental protection.

Recent education and outreach

efforts of the EEL Program have

included a seminar in August 2005

titled “What Do Environmentalists

Want from the Supreme Court?”

The event, announced just before the

nomination of John Roberts to the

Supreme Court, drew a standing-

room-only audience and was tele-

vised on C-SPAN. A February 2005

seminar in Washington titled “How

To Protect Environmental Protec-

tions” featured authors of recent ELI

Press books on constitutional envi-

ronmental law. And Program Direc-

tor Jay Austin gave a lecture at the

University of Chicago Law School in

January 2005 titled “Environmental

Law in the Courts.”

EEL brings ELI’s rigorous, non-

partisan analysis to the debate on the

foundations of federal environmen-

tal law. The program is successfully

raising public awareness about the

value of the federal environmental

laws which have been safeguarding

public health and the environment

for more than three decades.

This project was made possible

by major grants from the William

and Flora Hewlett Foundation, the

Open Society Institute, and the Da-

vid and Lucile Packard Foundation,

and through the generous support of

Gilman Ordway and an anonymous

donor.

Overf‌low crowd hears post-argument panels discuss cases, pick winners

Following the Supreme Court

arguments in three Clean Water Act

cases on February 21, ELI co-hosted a

debrief‌ing with the Georgetown Law

Center’s Supreme Court and Envi-

ronmental Law & Policy Institutes.

The event appeared live on C-SPAN

and attracted a crowd so large that an

overf‌low room was necessary.

The f‌irst half of the panel focused

on Rapanos and Carabell. It featured

Virginia Albrecht of Hunton & Wil-

liams LLP, who f‌iled a brief on behalf

of petitioners; Derb Carter of the

Southern Environmental Law Center,

who f‌iled a brief in support of the

government; Reed Hopper of the

Pacif‌ic Legal Foundation, who was

counsel for Rapanos; and Malcolm

Stewart of the Justice Department,

who assisted the solicitor general in

writing the government’s brief.

The second half focused on

S.D. Warren, addressing discharge

permitting involving water f‌low-

ing through a dam. This portion

of the panel included Daniel M.

Adamson of Davis

Wright Tremaine

LLP, who wrote a

brief supporting

S.D. Warren; Profes-

sor Richard Lazarus

of the Georgetown

University Law Cen-

ter, who was counsel

for the respondants,

American Rivers and

Friends of the Pre-

sumpscot; and Maine

Attorney General G. Steven Rowe,

who argued the case for Maine.

Panelists noted that the Court

focused its questions in the Rapanos

and Carabell cases on statutory in-

stead of constitutional issues. Because

the justices mostly questioned the

def‌initions of ditches, tributaries, and

adjacency, the panel unanimously

predicted that the Court will avoid

addressing whether the act exceeds

Congress’s constitutional authority.

Representatives on both sides of the

Rapanos case predicted victory for

their side, while most panelists ap-

peared less sure how the Court will

rule on Carabell.

Panelists discussing the S.D. War-

ren case were not surprised by the

questions the justices asked, which fo-

cused on the def‌inition of discharge.

Representatives from the Maine side

felt conf‌ident in their argument that

dam water meets the plain language

def‌inition of a discharge, while the

opposite side was pleased that the

justices appeared concerned about

states limiting power generation.

Maine Attorney General G. Steven Rowe, who argued S.D. Warren,

and Reed Hopper of the Pacif‌ic Legal Foundation, who argued the

Rapanos case, exchange views at the ELI-Georgetown event.

Copyright © 2006, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, March/April 2006