In the Supreme Court's 2008-2009 term, which likely will conclude in late June, 2009, the Court has accepted for argument five environmental cases—an unusually large number out of the roughly 85 cases accepted for argument. This report reviews the cases, decided and undecided, and then briefly comments. At this writing, one of the five cases has been decided. These exercises involve the use of "mid-frequency active sonar" to detect enemy submarines. On remand from the Ninth Circuit, the district court modified the preliminary injunction to allow the Navy to use the sonar if it used mitigation measures. The Court did not address the merits of the lawsuit—that is, whether the Navy exercises violated NEPA or the other federal environmental laws claimed to be violated. Whether Cost-benefit Analysis May Be Used to Determine "Best Technology Available" Under the Clean Water Act: Entergy Corp. v. Environmental Protection Agency

Facts and litigation history: "Power plants and other industrial operations withdraw billions of gallons of water from the nation's waterways each day to cool their facilities. The rule permitted EPA to conduct cost-benefit analysis in determining BTA. Second, however, EPA has a new source performance standard promulgated under CWA section 306 that specifically prohibits discharges from Coeur Alaska's type of ore processing ("a froth flotation mill") into waters of the United States. EPA and the state then sued to recover their cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA; popularly "Superfund Act"), which attaches liability for such government cleanup costs to past and present owners and operators of a contaminated site, those who transported the hazardous substance to the site, and those who arranged for the disposal of the hazardous substance at the site ("arranger liability"). In United States v. Burlington Northern and Santa Fe Railway Co ., 520 F.3d 918 (9 th Cir. One element of that expansive liability, legislative history shows, is that parties made liable under the act are jointly and severally liable (each is potentially liable for the entire cleanup) unless there is some reasonable basis for apportioning liability. Industry views these five cases with optimism; the environmental community with apprehension. For one thing, the environmental side won in the decision below in all five cases. Assuming the conventional wisdom that the Supreme Court does not take cases merely to affirm the decision below, the environmental sweep in the appellate courts suggests decisions going the other way in the Supreme Court (the one decision so far, in Winter v. Natural Resources Defense Council , follows that prediction). As for the principal NEPA case, Summers v. Earth Island Institute , it has been noted that the Supreme Court has voted against the environmental position in each of its 15 NEPA decisions.
In the Supreme Court's 2008-2009 term, which likely will conclude in late June, 2009, the Court has accepted for argument five environmental cases—an unusually large number out of the roughly 85 cases accepted for argument. This report reviews the cases, decided and undecided, and then briefly comments.
The one case of the five that is already decided is Winter v. Natural Resources Defense Council, holding that the national security interest in the Navy's being able to conduct exercises using "mid-frequency active sonar" clearly outweighs the danger to whales from use of such sonar. In so deciding, the Court also invalidated the Ninth Circuit's lax standard for the issuance of preliminary injunctions.
The four cases remaining to be decided are, first, Summers v. Earth Island Institute, raising the question whether a court's awarding nationwide relief from the application of a rule is proper in the context of a site-specific challenge to the rule. Second, the case of Entergy Corp. v. Environmental Protection Agency addresses the Clean Water Act's demand that EPA require the "best technology available" to minimize fish mortality from cooling water intake structures; the issue is whether that demand allows EPA to do cost-benefit analysis in deciding what technology to approve. Third, the case of Coeur Alaska, Inc. v. Alaska Conservation Group poses the issue whether a discharge prohibited by a Clean Water Act new source performance standard can still be allowed pursuant to a "fill" permit under the act. And fourth, the case of Burlington Northern and Santa Fe Railway Co. v. United States takes on two questions at the heart of the Superfund Act's liability scheme: when is there a reasonable basis for apportioning liability for hazardous-substance cleanup costs among responsible parties, in lieu of the joint and several liability that would otherwise apply, and when is a manufacturer liable for having arranged for the disposal of a hazardous substance even though disposal was not the primary purpose of the arrangement. Each of these cases has important implications for the particular program involved, and a few reach well beyond.
Industry views these five cases with optimism; the environmental community with apprehension. A principal reason is that in all five cases, the environmental side won in the decision below. Assuming the conventional wisdom that the Supreme Court does not take cases merely to affirm the decision below, the environmental sweep in the lower appellate courts suggests decisions going the other way in the Supreme Court. The one decision so far, in Winter v. Natural Resources Defense Council, follows that prediction.