The Supreme Court Term In Review, Part I: The Environment

water-pollution(The following is the first in a multi-part series on the Supreme Court’s recently-concluded 2008-2009 Term)

No one fared worse before the Supreme Court this Term than the Earth.  The justices heard five environmental cases, and they sided against defenders of the environment in every single one.  Among these cases, the Court upheld a Bush-era regulation that placed costs to power plants above destruction of aquatic life; it absolved from liability a chemical company that allowed pesticides to spill into the environment for years; it erected new obstacles to environmental organizations challenging federal environmental policy; and it upheld a mining company’s plans to dump literally millions of tons of mining waste into a pristine lake.

Two of these cases in particular highlight the Court’s disregard for laws intended to protect the environment:

  • A New Loophole For Polluters (Coeur Alaska v. Southeast Alaska Conservation Council)

Using a technique known as “froth-floatation,” a mining company in Alaska plans to extract new gold from a mine that has been closed for decades, but this technique would produce approximately 4.5 million tons of “slurry,” thick waste-product laced with toxic elements such as lead and mercury. Even worse, the mining company’s intends to dispose of this waste by dumping it into a nearby lake, a plan which would eventually kill all the lake’s fish and nearly all of its other aquatic life, decrease the depth of the lake by fifty feet, and flood the surrounding 40 acres of land with contaminated water.

Although federal law forbids “[t]he use of any river, lake, stream or ocean as a waste treatment system,” the Supreme Court created a massive new exception to this law. Under Justice Kennedy’s decision in Coeur Alaska, pollutants are exempt from this law so long as they have “the effect of . . . changing the bottom elevation of water.” In other words, polluters now have a free hand to dump whatever they want into pristine waters, so long as their waste products are solid and significant enough to reduce the depth of the lake, river or stream. As Justice Ginsburg wrote in dissent, such a reading of federal law “strains credulity” because it allows “[w]hole categories of regulated industries” to “gain immunity from a variety of pollution-control standards.”

  • Placing Profits Before The Law (Entergy v. Riverkeeper)

Power plants’ cooling systems collectively remove more than 214 billion gallons of water from the nation’s waterways every day, in the process killing over 3.4 billion aquatic organisms per year. The Clean Water Act requires that EPA regulate these cooling systems based on “the best technology available for minimizing adverse environmental impact.” During the Bush administration, however, EPA ignored this direction and instead employed a skewed cost-benefit analysis in deciding how to regulate. As a result, power plants were allowed to forgo the advanced technology required by the plain language of the law in favor of cheaper but far less protective measures.

Ignoring the law’s plain language, Justice Scalia’s decision in Riverkeeper upheld the Bush administration’s action.  As Justice Stevens explained in dissent, Congress determined that the costs of requiring power plants to pay for environmentally friendly technology “are outweighed by the benefits of minimizing adverse environmental impact” when it enacted the Clean Water Act, but the Court substituted the Bush Administration’s judgment for that of the law.

Notably, Riverkeeper reversed a Second Circuit decision by Judge Sonia Sotomayor, a hopeful sign that President Obama’s nominee for the high Court does not share her future colleagues’ willingness to rewrite environmental legislation to benefit big industry.

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