Cases Decided During the 2003-2004 Term

		EPA oversight of state programs under the Clean Air Act: Alaska Dep't of Environmental Conservation v. EPA

The broad concern of Alaska DEC is EPA's authority to oversee state administration of theClean Air Act (CAA), and in particular to enforce the act contrary to state determinations. Theprecise issue is whether EPA may issue CAA noncompliance orders to a company, where suchorders effectively overrule a state permit issued to the company under the state's EPA-approved CAAimplementation plan. (6) 
The Supreme Court affirmed 5-4. District

The issue before the Court here was whether the CAA preempts rules of a state agencyrequiring that when local operators of vehicle fleets buy fleet vehicles, they buy only those vehiclesthe district has designated, based on their low emissions. As to the CAA, the court held that the regulations did not fall withinregulatory exemptions from the conformity-determination requirement. Discharge permits under the Clean Water Act: South Florida Water Mgmt. District v. Miccosukee Tribe of Indians

This case addresses the backbone of the Clean Water Act (CWA) regulatory program -- itsrequirement that the "discharge of a pollutant" from a point source into navigable waters be pursuantto a National Pollutant Discharge Elimination System (NPDES) permit. (24) NPDEScoverage, it held, is triggered notwithstanding that the point source did not itself generate thepollutant. Judicial review of public lands management: Norton v. Southern Utah Wilderness Alliance

This case raises an important question as to the availability of judicial review under theAdministrative Procedure Act (APA). Cases Accepted During the 2003-2004 Term for Decision During the 2004-2005 Term

		"Contribution" actions under the Superfund Act: Cooper Industries, Inc. v. Aviall Services, Inc. Pesticide Act preemption of state tort law claims: Bates v. Dow Agrosciences, LLC

The issue before the Supreme Court in this case is whether -- and if so, to what extent -- theFederal Insecticide, Fungicide and Rodenticide Act (FIFRA, or "Pesticide Act") preempts state tortlaw claims, here for crop damage. Comments

The cases decided by the Court in the 2003-2004 term, and those to be argued next term,present a diverse picture. No unifying substantive theme is apparent. Further, why some of thecases were of interest to the Court is perplexing: many of them involve issues of narrow focus, withno accompanying split in the circuit court decisions. There are commonalities, however. In this regard, Norton may be the mostimportant of the cases, since the statute construed there, the Administrative Procedure Act, is thebasic charter for accessing judicial review of federal agency action, and the issue in the case, whenagency inaction is reviewable, is a ubiquitous one in administrative law. The results, in the fivecases decided so far, have indeed largely tilted against the environmental positions advanced, but notexclusively so. Finally, three of the seven cases inquire into the nature of the federal-state relationship( Alaska DEC , Engine Manufacturers Ass'n , and Bates ), presumably reflecting the Court's continuinginterest in federalism issues, and environmental federalism in particular.
In the Supreme Court's 2003-2004 term, concluded June, 2004, the Court accepted for reviewseven environmental cases -- an unusually large number. Five decisions were handed down duringthe term, and two cases were carried over to the upcoming 2004-2005 term.
Of the five decided cases, three involve the Clean Air Act (CAA). Alaska Dep't ofEnvironmental Conservation v. EPA asked whether EPA may issue CAA enforcement orders thateffectively overrule a permit issued by a state under its EPA-approved air program. The Court saidyes, though only by a 5-4 margin. In Engine Manufacturers Ass'n v. South Coast Air QualityManagement District , the Court held that the CAA preempts a state from compelling local vehiclefleet operators to buy new vehicles from the state's list of low-emission models. And Dep't ofTransportation v. Public Citizen spoke to whether DOT safety regulations whose promulgationallowed Mexican trucks greater range in the United States must be preceded by environmentalanalyses under the CAA and National Environmental Policy Act. Because DOT lacks discretion toprevent the truck movement, said the Court, the added emissions from that movement did not haveto be considered.
The other decided cases are, first, South Florida Water Management District v. MiccosukeeTribe of Indians , holding that a point source of discharges into U.S. navigable waters must obtaina Clean Water Act permit despite the fact that the point source itself did not add the pollutants in thedischarged water. Second, Norton v. Southern Utah Wilderness Alliance clarified the availabilityof judicial review of federal agency inaction under the Administrative Procedure Act, which allowsreview of agency action "unlawfully withheld."
Environmental cases to be heard in the 2004-2005 term are Cooper Industries, Inc. v. AviallServices, Inc. , addressing when contribution actions are available under the Superfund Act, and Bates v. Dow Agrosciences, LLC , which wrestles with the scope of federal preemption of state lawunder the Federal Insecticide, Fungicide and Rodenticide Act.
It is not apparent why the Court has chosen this moment to enlarge its environmental docket. No unifying theme is apparent in the accepted cases, and why some of them piqued the Court'sinterest is perplexing. There are some commonalities, however. All seven cases raise principallystatutory, rather than constitutional, issues. The results, in the cases decided so far, lean against the"environmental" side, though not exclusively so. And three of the seven cases turn on the nature ofthe federal-state relationship, a favorite theme of the current Court.