Supreme Court Ends Worst Term Ever for Environmental Issues

The U.S. Supreme Court heard five major environmental law cases in the term that ended last week and the environment lost every time, making 2008-2009 the worst term on record for environmental issues. Between October and June, the Court’s decisions:

• allowed the U.S. Navy to continue military exercises using sonar that threatens whales, according to many scientists and environmental groups;
• limited the liability of companies that are partially responsible for toxic spills;
• made it harder to challenge Forest Service regulations;
• cleared the way for mining waste to be dumped into an Alaskan lake; and
• enabled the EPA to use a faulty cost-benefit analysis process to weigh technology implementations or upgrades against adverse environmental impacts.

Business groups were generally pleased with the rulings while environmental groups were disappointed or, in some cases, outraged. Beyond the issues involved in these particular cases, however, is the larger question of whether the outcome of these five cases signals a shift in the legal perspective of the Supreme Court that may continue to jeopardize the environment.

Under the leadership of Chief Justice Roberts, who joined the Court in 2005, the Supreme Court has become increasingly conservative. And the addition of Justice Samuel Alito, who replaced Sandra O’Connor in 2006, has contributed to that trend. If Supreme Court Nominee Sonia Sotomayor is confirmed by the Senate, it will probably do little to change the Court’s approach to environmental cases. Sotomayor is generally expected to take positions on environmental law cases that would not differ significantly from those of retiring Justice David Souter, whom she would replace.

With Congress and many state legislatures poised to pass a number of historic environmental laws—the kind that are almost sure to invite legal challenges—the question is whether the Supreme Court will ultimately advance or impede progress on key environmental issues.