Environmental Litigation in the Supreme Court
When Chief Justice Roberts and Justice Alito took their seats on the Supreme Court, environmentalists predicted that the newly configured Court would restrict—and possibly even eviscerate—environmental laws. The Roberts Court’s first significant environmental decision in the combined cases of Rapanos v. United States and Carabell v. Army Corps of Engineers revealed sharp divisions among the Justices. The stakes rose when the Court chose to hear five environmental cases during the 2006-2007 term, and five more in the 2008-2009 term. Most recently, the composition of the Court changed yet again when Justice Sotomayor was sworn in on August 8, 2009.
This seminar will closely examine five environmental cases decided by the Roberts Court during the last four years: Rapanos v. United States (wetlands), Environmental Defense v. Duke Energy Corp. (power plant emissions), Massachusetts v. EPA (global warming), Entergy v. Riverkeeper (cost-benefit analysis), and Burlington Northern v. United States (Superfund liability). For each case, materials will include the Circuit Court opinion, selected portions of the parties’ briefs in the Supreme Court, the oral argument transcript, and the Court’s final decision. Through careful study of these cases, we will seek to understand not only the legal import of the decisions but also the direction of the Court under Chief Justice Roberts.
Some background in environmental law would be helpful but is not necessary.