The Un-Greening of the Supreme Court
Tuesday, July 7th, 2009
I wrote recently about the five environmental cases heard by the U.S. Supreme Court this term, and that all five of them were decided against the “green” plaintiffs. Although none of the five cases were specifically about asbestos contamination, one case (Burlington Northern Railway/Shell Oil Co. v. U.S.) was about responsibility for cleaning up toxic contamination of the environment. The justices also limited the financial liability of some companies partly responsible for the toxic contamination. This makes it of interest to people suffering from mesothelioma and other asbestos-related diseases.
In that case, the Court ruled 8-1 (Justice Ruth Bader Ginsburg dissenting) that Shell Oil Co. could not be held responsible as an “arranger” of an environmental hazard from chemicals it sold to another company, even though Shell continued to sell chemicals knowing they were not being properly stored. The Court also reversed the Ninth Circuit’s decision that other defendants, railroad companies that owned land on which the chemicals were stored, were jointly and severally liable for the full cost of the governments’ response efforts. This meant the Environmental Protection Agency could only recover a portion of cleanup costs from any one defendant
Losing all five cases was a shock to environmentalists, who had come to expect more sympathy from the Court. Here is further analysis of the Court and why it might be growing less green.
Court watchers say that since Chief Justice John Roberts joined the court in 2005, and Justice Samuel A. Alito Jr. in 2006, decisions have more often been decided against environmental interests. In particular, Justice Alito replaced Sandra Day O’Connor, who more often that not decided in favor of environmental interests.
Another shift has been in the voting of Justice Anthony Kennedy, who joined the Court in 1988. Justice Kennedy has been more favorable to environmental interests in past years, but this term he joined with the un-green majority on all five environmental cases heard by the Court. Five justices — Roberts, Alito, Kennedy, Clarence Thomas and Antonin Scalia — were a solid non-green voting block this term. In four of the five cases the majority was joined by Justice Stephen G. Breyer, considered a moderate on environmental law.
This brings us to Justice David Souter, who has announced his retirement from the Court. Judge Sonia Sotomayor has been nominated to replace him. Will this change make any difference to environmental issues?
Justice Souter, who enjoys hiking in his home state of New Hampshire, generally has been sympathetic to environmental issues. As a judge of the Second Circuit Court, Sotomayor has heard only a few environmental cases. Even so, Sotomayor’s environmental record is generally encouraging to environmentalists.
Alan Liptak writes in the New York Times that environmentalists are deeply concerned about the direction of the Court. He quotes Patrick A. Parenteau, who teaches environmental law at Vermont Law School. “The lesson from this,” Professor Parenteau said, “is to do everything you can to keep environmental cases out of this court.”
Barbara O’Brien
July 7, 2009
