Breaking News

A Coming Wave of Environmental Cases?

Yes, the docket is sparser than ever, but this Term and last have already been major Terms for environmental cases, and we might not have seen the end of it yet. My colleague Richard Lazarus writes to note that in the past several weeks the Solicitor General has petitioned in four environmental cases, and acquiesced to certiroari in a fifth case. [UPDATE: Make that two acquiescences — thanks to Jean-Claude Andre for the tip.] [FURTHER UPDATE: Three and counting — the latest is in a case that raises the same CERCLA issue as in Atlantic Research, below.] [REVISION: OK, as it turns out, PG&E is not an acquiescence, although listed as such on the SG’s webstie. See details below.] If the Court were to grant in all or most of these half-dozen cases, a very significant percentage of its docket this Term would involve environmental law.

These are the cases, with links to the SG petitions and acquiescences:

1. No. 06-344, Mineral County, Montana v. Ecology Center, Inc. [acquiescence]

[To be considered in conference next Friday, Jan. 5, 2007]


Whether the court of appeals failed to apply the proper standard of review under the Administrative Procedure Act in evaluating whether the Forest Service had complied with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and the National Forest Management Act of 1976, 16 U.S.C. 1600 et seq.

2. No. 06-466, PG&E Co. v. San Luis Obispo Mothers for Peace [acquiescence — NOT]

[Briefs in opposition filed Dec. 15, 2006]

[UPDATE: This is listed as an acquiescence on the SG’s website. But in fact it’s not, although the SG agrees with petitioner that the court of appeals erred. Here’s what the SG writes:

The court of appeals’ unprecedented holding that NEPA requires analysis of the environmental effects of potential terrorist attacks is wrong, and the court’s refusal to apply the “reasonably close causal relationship” test conflicts with decisions of this Court. The federal respondents did not file their own petition for a writ of certiorari, however, because there is no square circuit conflict and it is unclear at this time how burdensome the court of appeals’ decision will be, given that the Ninth Circuit did not specify how much analysis it expects the agency to undertake on remand. At a minimum, however, the court’s erroneous decision may require NRC to undertake time-consuming procedures and will lead to further litigation, which will risk delaying important licensing decisions. Moreover, the issue will recur in other NRC licensing proceedings subject to review by the Ninth Circuit, and will affect at least some other agencies as well. The federal respondents recommend denying review at this time, recognizing that the issue may warrant this Court’s review in the future if a circuit split develops or the Ninth Circuit imposes burdensome requirements in other cases.


1. Whether the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., requires the Nuclear Re gulatory Commission to consider, as part of its review of a proposed federal action, the environmental impact of a potential terrorist attack.

2. Whether the Commission must consider such an impact even if the risk is not sufficiently quantifiable to be meaningful or to assist agency decision making under NEPA.

3. No. 06-549, EPA v. Defenders of Wildlife

[Reply Brief here, filed Dec. 11, 2006.]


Whether Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. 1536(a)(2), which requires each federal agency to insure that its actions do not jeopardize the continued existence of a listed species or modify its critical habitat, overrides statutory mandates or constraints placed on an agency’s discretion by other Acts of Congress.

4. No. 06-562, U.S. v. Atlantic Research Corp.

[Response requested; due Jan. 8, 2007. The same issue is raised in No. 06-726, E.I. DuPont de Nemours & Co. v. U.S. The SG has acquiesced in DuPont, and has suggested that it might be “ripe” for the Court’s consideration before Atlantic Research, in case the Court wishes only to grant only one of the petitions rather than both.]


Whether a party that is potentially responsible for the cost of cleaning up property contaminated by hazardous substances under the Comprehensive Environ mental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., but that does not satisfy the requirements for bringing an action for con tribution under Section 113(f) of CERCLA, 42 U.S.C. 9613(f), may bring an action against another potentially responsible party under Section 107(a), 42 U.S.C. 9607(a).

5. No. 06-736, EPA v. New York

[Briefs in opposition filed Dec. 18, 2006]


Whether the court of appeals erred in invalidating an EPA rule [respecting the “new source review” program] on the ground that the phrase “any physical change” in the definition of “modification” in Section 111(a)(4) of the Clean Air Act, 42 U.S.C. 7411(a)(4), unambiguously requires EPA to adopt the broadest meaning of the phrase.

6. No. 06-797, U.S. Forest Service v. Earth Island Institute

[One brief in opposition filed Dec. 20, 2006; others due Feb. 9, 2007]


In this action under the Administrative Procedure Act, respondents challenge two projects adopted by the Forest Service to restore portions of the Eldorado National Forest that were severely damaged by fire. The court of appeals ordered entry of a preliminary injunction barring the Forest Service from proceeding with those projects.

The question presented is whether the court of appeals erred in ordering a preliminary injunction, including by:

a. Relying on declarations filed by respondents in the district court, rather than confining its review to the administrative record, in determining that respondents had shown a likelihood of success on the merits;

b. Holding that respondents could satisfy the “irreparable injury” prong of the test for obtaining a preliminary injunction by showing only a “possibility” of such injury; and

c. Discounting competing interests in the use of Forest lands under multiple use principles, and the Forest Service’s balance of those competing uses, in weighing the balance of harms and the public interest.