The Supreme Court Revisits the Environment: Seven Cases Decided or Accepted in the 2003-2004 Term

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The Supreme Court Revisits the Environment:

Seven Cases Decided or Accepted

in the 2003-2004 Term

September 7, 2004

-name redactedLegislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

The Supreme Court Revisits the Environment:

Seven Cases Decided or Accepted

in the 2003-2004 Term

Summary

In the Supreme Court’s 2003-2004 term, concluded June, 2004, the Court

accepted for review seven environmental cases — an unusually large number. Five

decisions were handed down during the 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

of Environmental Conservation v. EPA asked whether EPA may issue CAA

enforcement orders that effectively overrule a permit issued by a state under its EPAapproved air program. The Court said yes, though only by a 5-4 margin. In Engine

Manufacturers Ass’n v. South Coast Air Quality Management District, the Court held

that the CAA preempts a state from compelling local vehicle fleet operators to buy

new vehicles from the state’s list of low-emission models. And Dep’t of

Transportation v. Public Citizen spoke to whether DOT safety regulations whose

promulgation allowed Mexican trucks greater range in the United States must be

preceded by environmental analyses under the CAA and National Environmental

Policy Act. Because DOT lacks discretion to prevent the truck movement, said the

Court, the added emissions from that movement did not have to be considered.

The other decided cases are, first, South Florida Water Management District v.

Miccosukee Tribe of Indians, holding that a point source of discharges into U.S.

navigable waters must obtain a Clean Water Act permit despite the fact that the point

source itself did not add the pollutants in the discharged water. Second, Norton v.

Southern Utah Wilderness Alliance clarified the availability of judicial review of

federal agency inaction under the Administrative Procedure Act, which allows review

of agency action “unlawfully withheld.”

Environmental cases to be heard in the 2004-2005 term are Cooper Industries,

Inc. v. Aviall Services, 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 law under 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’s interest is perplexing. There are some

commonalities, however. All seven cases raise principally statutory, 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 of the federal-state relationship, a favorite theme of the current Court.

Contents

I. Cases Decided During the 2003-2004 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

EPA oversight of state programs under the Clean Air Act:

Alaska Dep’t of Environmental Conservation v. EPA . . . . . . . . . . . . . . 1

Clean Air Act preemption of state efforts to lower vehicle emissions:

Engine Manufacturers Ass’n v. South Coast Air Quality

Mgmt. District . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Legal cause under the National Environmental Policy Act and

Clean Air Act: Department of Transportation v. Public Citizen . . . . 3

Discharge permits under the Clean Water Act: South Florida

Water Mgmt. District v. Miccosukee Tribe of Indians . . . . . . . . . . . . . . 4

Judicial review of public lands management:

Norton v. Southern Utah Wilderness Alliance . . . . . . . . . . . . . . . . . . . . 6

II. Cases Accepted During the 2003-2004 Term for Decision During the

2004-2005 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

“Contribution” actions under the Superfund Act:

Cooper Industries, Inc. v. Aviall Services, Inc. . . . . . . . . . . . . . . . . . . 7

Pesticide Act preemption of state tort law claims:

Bates v. Dow Agrosciences, LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

III. Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The Supreme Court Revisits the

Environment: Seven Cases Decided or

Accepted in the 2003-2004 Term

In the Supreme Court’s 2003-2004 term, concluded June, 2004, the Court

accepted for review seven environmental cases — an unusually large number.1 The

reason for this renewed interest in environmental cases at this particular time is, of

course, speculative; the Court does not explain why it accepts cases. Five of the

cases were decided during the 2003-2004 term, and two carried over to the 20042005 term. This report reviews the cases and then briefly comments.2

I. 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 the Clean Air Act (CAA), and in particular to enforce the act

contrary to state determinations. The precise issue is whether EPA may issue CAA

noncompliance orders to a company, where such orders effectively overrule a state

permit issued to the company under the state’s EPA-approved CAA implementation

plan. The CAA provisions at issue are section 113(a)(5),3 EPA’s general

enforcement authority, and section 167,4 its specific enforcement authority for

Prevention of Significant Deterioration (PSD) areas.5

Alaska is a PSD area for nitrogen dioxide. Under the state’s EPA-approved

CAA plan, the state rather than EPA issues the “PSD permits” required for

constructing major new sources of nitrogen dioxide emissions in the state. In the

present case, Alaska DEC found that a mining company’s application for a PSD

1

The author appreciates the assistance of (name redacted), a summer intern with the

American Law Division, in the preparation of this report.

2

See also Note, Case Comments: U.S. Supreme Court Environmental Cases, October 2003

Term, 28 Harv. Envtl. L. Rev. no. 2 (2004).

3

42 U.S.C. § 7413(a)(5).

4

42 U.S.C. § 7477.

5

The PSD program in the CAA seeks to prevent air that is already cleaner than national

ambient standards under the act require from deteriorating down to those standards. It

applies as well to areas deemed unclassifiable due to lack of information. 42 U.S.C. § 7471.

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permit — for new electric generators it wished to install — satisfied the CAA’s

requirement that Best Available Control Technology (BACT) be installed. EPA

disagreed, however. The state agency issued the PSD permit anyway, prompting

orders from EPA that prevented the mining company from installing the new

generators until it demonstrated — to EPA — compliance with BACT. The state and

the company then challenged the EPA orders in the Ninth Circuit. That court ruled

for EPA, holding that the orders were within its CAA authority.6

The Supreme Court affirmed 5-4.7 EPA had rationally construed the act’s text,

the majority said. The enforcement authority granted EPA in sections 113(a)(5) and

167 is “capacious.” And though EPA’s many guidance pronouncements asserting

oversight authority over states are not entitled to deference, since they are not legally

binding, they still warrant “respect.” The Court majority rejected Alaska DEC’s

argument that EPA could only insist that the state make some BACT determination,

not review its reasonableness once made. Still, the majority admonished, EPA must

accord the state’s BACT determination considerable deference. Only when the

state’s determination is not based on “a reasoned analysis” may EPA step in to ensure

that CAA requirements are met. The agency, concluded the Court, adhered to that

limited role here.

The Court majority also rejected Alaska DEC’s argument that even though EPA

may review state determinations for a reasoned analysis, it may only enforce before

state agencies and state courts. Federal courts have jurisdiction also, said the

majority, as is typical for federal enforcement of federal statutes.

Clean Air Act preemption of state efforts to lower vehicle

emissions: Engine Manufacturers Ass’n v. South Coast Air

Quality Mgmt. District

The issue before the Court here was whether the CAA preempts rules of a state

agency requiring that when local operators of vehicle fleets buy fleet vehicles, they

buy only those vehicles the district has designated, based on their low emissions.

The South Coast Air Quality Management District in California encompasses

an area (including Los Angeles) with major air pollution problems. The District

adopted six rules, each mandating the above-noted vehicle purchase limitation for a

particular type of fleet operator (some public, some private). Four of the rules require

the purchase or lease of alternative-fuel vehicles; the other two, the purchase or lease

of either alternative fuel vehicles or vehicles that meet emission standards set by a

state agency.

Before the district court, trade associations argued that the fleet rules violated

CAA section 209(a),8 which prohibits states from adopting “standard[s] relating to

the control of emissions from new motor vehicles . . . .” The fleet purchasing rules,

6

298 F.3d 814 (9th Cir. 2002).

7

124 S. Ct. 983 (2004).

8

42 U.S.C. § 7543(a).

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they argued, functioned as precisely such standards. The district court saw things

differently, however, holding that section 209(a) only bars the states from applying

emission standards to manufacturers, not purchasers.9 Moreover, the court said, the

CAA “explicitly protects the authority of states to regulate air pollution.”10 The

Ninth Circuit affirmed without discussion.11

In the Supreme Court, the United States filed an amicus brief on the side of the

Engine Manufacturers Association, arguing for preemption. This position prevailed,

8-1.12 Based on the “ordinary meaning” of CAA section 209(a), the Court held that

the provision precluded state emission standards for both the manufacture and

purchase of vehicles. Although the Court did not declare that all the fleet rules were

preempted, it said that “it appears likely at least certain aspects of the fleet rules are

preempted.”13 The Court vacated the judgment below and remanded the case due to

remaining questions as to the application and scope of the fleet rules.

Legal cause under the National Environmental Policy Act and

Clean Air Act: Department of Transportation v. Public Citizen

This case concerns three motor carrier safety regulations, issued in 2002 by the

Federal Motor Carrier Safety Administration (FMCSA) within DOT. Together, the

regulations will permit Mexico-domiciled motor carriers to operate within the United

States beyond the current limited border zones. The regulations carry out U.S.

obligations under the North American Free Trade Agreement (NAFTA).

The case turns on FMCSA’s determination that there was no need for

environmental analysis of two of the three safety regulations under the National

Environmental Policy Act (NEPA) beyond a preliminary environmental assessment,

and no need for any environmental analysis at all of the third regulation. Petitioners,

environmental groups and truckers’ unions, claimed that FMCSA’s failure to prepare

a full environmental impact statement (EIS), addressing the environmental effects of

increased cross-border operations of Mexican motor carriers, violated NEPA. They

argued that issuance of the regulations was the legal cause of the increased crossborder operations, since appropriation act provisions barred registration of Mexican

motor carriers for travel in the interior U.S. until such issuance. Petitioners also

asserted that FMCSA’s failure to make a “conformity determination,” to ensure that

the regulations are consistent with CAA state implementation plans, violated that

act.14

9

158 F. Supp. 2d 1107 (C.D. Cal. 2001).

10

Id. at 1110.

11

309 F.3d 551 (9th Cir. 2002).

12

124 S. Ct. 1756.

13

Id. at 1764.

14

CAA § 176(c)(1); 42 U.S.C. § 7506(c)(1).

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The Ninth Circuit said that FMCSA had been arbitrary and capricious in

refusing to do the NEPA and CAA analyses.15 As to NEPA, the regulations

constituted “major federal action significantly affecting the quality of the human

environment,” the NEPA phrase triggering a federal agency’s duty to prepare an

EIS.16 For example, FMCSA had failed, the court said, even to consider whether any

negative health effects could be associated with the increased diesel exhaust

emissions resulting from the regulations. As to the CAA, the court held that the

regulations did not fall within regulatory exemptions from the conformitydetermination requirement. The court instructed FMCSA to prepare a full EIS and

CAA conformity determination for all three regulations.

The Supreme Court unanimously reversed.17 It found that the President’s

decision pursuant to NAFTA to lift the longstanding moratorium on Mexican motorcarrier certification, not the FMCSA’s safety regulations, was responsible for

potential emission changes. Once the moratorium was lifted and the safety

regulations promulgated, the FMCSA had no choice under the governing statute but

to issue registrations to qualifying motor carriers. An agency’s actions do not

constitute a legally relevant cause of an effect if the agency is unable to prevent that

effect due to its limited statutory authority. Since there was not a “reasonably close

causal relationship” between the regulations and the environmental effects, FMCSA

was not required to consider those effects in its NEPA documents.

As regards the CAA, the Court held that a full conformity determination also

was not required. EPA regulations say that “a conformity determination is required

where the total of direct and indirect emissions in a nonattainment or maintenance

area caused by a Federal action would equal or exceed” a specified level.18 The

increased Mexican truck emissions are not a direct result of FMCSA’s regulations,

said the Court, because they will not occur at the same time or place as the

promulgation of the regulations — EPA’s definition of “direct emissions.” Nor are

the emissions an indirect result because FMCSA cannot practicably control, nor

maintain control, over them — EPA’s definition of “indirect emissions.” Therefore,

it was unnecessary for FMCSA to consider the increased emissions from Mexican

trucks in deciding whether to conduct a full conformity determination.

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 — its requirement that the “discharge of a pollutant” from a point source

into navigable waters be pursuant to a National Pollutant Discharge Elimination

15

316 F.3d 1002 (9th Cir. 2003).

16

NEPA § 102(2)(C); 42 U.S.C. § 102(2)(C).

17

124 S. Ct. 2204 (2004).

18

40 C.F.R. § 93.153(b).

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System (NPDES) permit.19 The issue for the Court was whether a point source

comes under this permit requirement when the point source itself did not add the

pollutants in the discharged water.

The South Florida Water Management District operates a pumping station that

receives water from a canal draining a large mixed-use area, then pumps the water

into an undeveloped wetland. Both areas are historically part of the Everglades. The

tribe and an environmental group asserted that the District was violating the CWA

by operating the pump, an admitted point source, without a NPDES permit. The

District responded that because the “discharge of a pollutant” that requires a permit

is defined in the CWA as “any addition of a pollutant to navigable waters,”20 the

pumping station was not covered, since it did not itself add the pollutants to the

pumped water.

The Indian tribe won in the district court.21 A “discharge of pollutants” for

CWA purposes existed, the court said, because water containing pollutants was being

pumped to a separate water body to which it would not have flowed naturally. That

the pumping station did not itself add the pollutants to the pumped water is irrelevant

to whether a “discharge” occurred. The Eleventh Circuit affirmed, on the same

rationale.22

The Supreme Court unanimously rejected the District’s argument,23 affirming

the decision below.24 NPDES coverage, it held, is triggered notwithstanding that the

point source did not itself generate the pollutant. Having answered the question on

which the Court granted certiorari, however, the Court proceeded to address two

others. The first was the “unitary waters” argument, pressed chiefly by the United

States as amicus on the District’s side. In determining whether there has been an

“addition” of a pollutant, the United States contended, all navigable waters in the

nation should be regarded as one. So viewed, moving water from one water body to

another is not an “addition,” hence requires no permit. The Court was highly

skeptical of this argument, but left the issue open for resolution on remand to the

appellate court below.

The second argument addressed by the Court and not in the petition was the

District’s contention (agreed to by the United States) that the canal drainage area and

the wetland are not distinct bodies of water at all, but are hydrologically connected

parts of a single water body. No NPDES permit is required to move water from one

area of a water body to another. This time the Court appeared amenable to the

argument, but finding that factual issues remained unresolved, remanded for further

factual development by the district court.

19

CWA § 402(a); 33 U.S.C. § 1342(a).

20

CWA § 502(12); 33 U.S.C. § 502(12). Emphasis added.

21

1999 Westlaw 33494862 (S.D. Fla. Sept. 30, 1999) (unpublished).

22

280 F.3d 1364 (11th Cir. 2002).

23

124 S. Ct. 1537 (2004).

24

280 F.3d 1364 (11th Cir. 2002).

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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 the Administrative Procedure Act (APA). The issue for the Court was

whether federal court authority under APA section 706(1)25 to “compel agency action

unlawfully withheld or unreasonably delayed” extends to certain types of agency

failure to act — here, in connection with the Bureau of Land Management’s

(BLM’s) management of off-road vehicle (ORV) use in Wilderness Study Areas.

More particularly, plaintiffs sought 706(1) review of BLM’s alleged failure to

(1) manage the Wilderness Study Areas “so as not to impair the suitability of such

areas for preservation as wilderness,” a mandate of the Federal Land Policy and

Management Act26 (FLPMA); (2) implement provisions in its FLPMA land-use plans

regarding ORVs, and (3) take a “hard look” at whether, under NEPA, the agency

should do supplemental environmental analysis for areas where ORV use had

increased. The district court rejected use of section 706(1) for these purposes, but a

divided Tenth Circuit reversed.27 Regarding the first claim, for example, the Tenth

Circuit found that despite BLM’s discretion in deciding how its nonimpairment duty

would be carried out, the duty itself is indisputably nondiscretionary. This satisfies

the “unlawfully withheld” phrase of 706(1), and confers subject matter jurisdiction

on the reviewing court.

The Supreme Court reversed again,28 unanimously finding against APA

jurisdiction. Section 706(1) review is available, it held, in only a tightly defined

circumstance: when there is “a discrete agency action that [a federal agency] is

required to take.”29 This requirement is fatal, said the Court, to plaintiffs’ claims.

As to the first claim, the Court cannot order BLM to manage ORVs in accordance

with FLPMA’s non-impairment mandate, since that mandate leaves the agency much

discretion. Moreover, plaintiffs allege only a general program deficiency, a charge

that lacks the specificity required for 706(1) review.

Plaintiffs’ second claim, that BLM failed to carry out its land use plans, does not

satisfy the “required to take” prong of the section 706(1) availability rule. Land use

plans under FLPMA act only to “guide[] and constrain[] actions, but [do] not (at least

in the usual case) prescribe them.”30 Projections of agency action in land use plans,

such as the one before the Court, are not a legally binding commitment.

25

5 U.S.C. § 706(1).

26

FLPMA § 603(c); 43 U.S.C. § 1782(c).

27

301 F.3d 1217 (10th Cir. 2002). The dissenting judge concurred in the majority’s

endorsement of plaintiffs’ NEPA claim.

28

124 S. Ct. 2373 (2004).

29

Id. at 2379 (emphasis in original).

30

Id. at 2383.

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The third claim, involving NEPA, did not need to be reached. The Court had

no need to address whether breach of a NEPA duty is actionable under section

706(1), it concluded, because here there was no NEPA duty in the first place. The

EIS supplementation demanded by plaintiffs is necessary only if there remains

“major federal action” to occur. Although the approval of the BLM land use plan in

this case is a major federal action, that action is now complete. There is no ongoing

federal action that could require supplemental EIS analysis.

II. 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.

This case deals with the availability of contribution actions under the

Comprehensive Environmental Response, Compensation and Liability Act

(CERCLA, or “Superfund Act”). By way of background, contribution actions are

those brought by liable parties, often in the tort context, asserting that some or all of

the party’s liability should be reimbursed by other liable parties. The specific issue

presented by Cooper is whether CERCLA section 113(f)(1),31 the authority for

contribution actions under that statute, is available when no civil action has been

brought by the federal government — that is, the United States has not ordered the

party seeking contribution to clean up (under CERCLA section 10632) or reimburse

the United States’ cleanup costs (under CERCLA section 107(a)33).

Aviall bought contaminated property from Cooper. After the state ordered

Aviall to clean up, it began to do so. Important here, the federal EPA never contacted

Aviall or designated the property as contaminated. To recover some of its cleanup

costs, Aviall sued Cooper seeking contribution under CERCLA and damages under

state law theories. (Under CERCLA, both Aviall and Cooper are liable parties.)

Both the district court and a Fifth Circuit panel (2-1) held that under CERCLA

113(f)(1), the liable party seeking contribution must have a pending or adjudged

federal cleanup or cost-recovery order against it. The en banc Fifth Circuit reversed,

over a three-judge dissent, asserting that the great majority of circuits disagreed with

the panel majority.34 Acknowledging that reasonable minds could disagree, it found

that the most reasonable interpretation of section 113(f)(1) was that it allowed a

liable party to sue for contribution under federal law at any time, not only “during or

following” — the words of 113(f)(1) — a cleanup or cost recovery action.

31

42 U.S.C. § 7413(f)(1).

32

42 U.S.C. § 9606.

33

42 U.S.C. § 9607(a).

34

312 F.3d 677 (5th Cir. 2002).

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After the Court granted certiorari on January 9, 2004,35 the United States filed

an amicus brief disputing the en banc decision and urging reversal. The case has

been set for oral argument on October 6, 2004.

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 — the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA, or

“Pesticide Act”) preempts state tort law claims, here for crop damage. The pivotal

FIFRA provision is section 136v(b),36 which seeks through preemption to ensure a

uniform nationwide approach to pesticide labeling. It declares succinctly that a state

shall not impose “any requirements for labeling or packaging in addition to or

different from those required under this act.”

Dow Agrosciences LLC produces Strongarm, a herbicide for controlling certain

weeds around peanut crops. Strongarm is properly registered with the U.S. EPA

under FIFRA. In 2000, Dow began to receive letters from peanut growers

contending that the herbicide was highly toxic, stunted plant growth, and failed to

control weeds in peanut crops. The letters threatened to sue, but Dow struck first by

filing suit for declaratory judgment against 29 of the growers. Dow sought, among

other things, a judicial declaration that FIFRA preempted the farmers’ state law

claims.

The district court endorsed all of Dow’s arguments.37 Neither the growers’

breach of implied and express warranty claims, nor their Texas Deceptive Trade

Practices Act and fraud claims, nor their negligence claims escape section 136v(b)’s

preemptive reach. Though the growers assert that their claims are based on remarks

made by Dow representatives, rather than Strongarm’s label, such remarks mostly

restated label information. Thus, the growers’ claims essentially challenge the label

— seeking to impose precisely what 136v(b) preempts: “requirements for labeling

... in addition to or different from those required under [FIFRA].” (In addition, the

breach of warranty claims are foreclosed by Strongarm’s label provisions, which

disclaim any implied warranty and provide only a limited express warranty.)

The Fifth Circuit affirmed.38 First, contrary to the growers’ argument, state

labeling requirements related to product effectiveness are within the scope of section

136v(b). That EPA has elected not to impose labeling regulation as to product

effectiveness does not avoid preemption of a claim that has the effect of imposing

labeling requirements. Second, the growers’ claims (for breach of warranty, fraud,

Deceptive Trade Practices Act violation, defective design and negligence) are

35

124 S. Ct. 981 (2004).

36

7 U.S.C. § 136v(b).

37

205 F. Supp. 2d 623 (N.D. Tex. 2002).

38

332 F.3d 323 (5th Cir. 2003).

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sufficiently related to the content of the Strongarm label that a judgment against Dow

here would induce it to alter the label. Again, that is what section 136v(b) forbids.

On petition for certiorari, the United States was invited by the Supreme Court

to offer its views. Its amicus brief argued that the Fifth Circuit ruled correctly in

finding FIFRA preemption of the growers’ state law tort claims, and that review by

the Court was unwarranted. Notwithstanding, the Court granted certiorari on June

28, 2004.39 Oral argument has not yet been scheduled.

III. 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 the cases were of interest to the Court is perplexing: many of

them involve issues of narrow focus, with no accompanying split in the circuit court

decisions.

There are commonalities, however. First, all seven cases raise statutory rather

than constitutional issues (or mostly so in the two preemption cases: Engine

Manufacturers Ass’n and Bates). This is a principal reason why there is no unifying

theme among the cases; statutory issues tend to be specific to the statute under which

they arise. In this regard, Norton may be the most important of the cases, since the

statute construed there, the Administrative Procedure Act, is the basic charter for

accessing judicial review of federal agency action, and the issue in the case, when

agency inaction is reviewable, is a ubiquitous one in administrative law.

Second, in six of the seven cases (all except Bates) the decision of the court

below adopted the more “environmental” side of the argument. Given that the

Supreme Court typically does not take cases in order to affirm, this initially caused

some concern in the environmentalist camp that the Court’s conservative bloc was

set to reign in environmental programs. The results, in the five cases decided so far,

have indeed largely tilted against the environmental positions advanced, but not

exclusively so. Nor were the conservative justices alone in their votes. In three of

the five decisions, the “non-environmental” position was endorsed by the Court

unanimously (Dep’t of Transportation and Norton) or by 8-1 (Engine Manufacturers

Ass’n). And in the NEPA rulings (Dep’t of Transportation and Norton), the

decisions merely continue an unbroken string of defeats for the “environmental”

position over three decades of Supreme Court NEPA litigation.

Third, in all four cases in which the United States is not a party (Engine

Manufacturers Ass’n, Miccosukee Tribe, Cooper Industries and Bates) — and thus

is under no litigation constraint to adopt a particular position — it has filed amicus

briefs urging the “non-environmental” position.

Finally, three of the seven cases inquire into the nature of the federal-state

relationship (Alaska DEC, Engine Manufacturers Ass’n, and Bates), presumably

39

124 S. Ct. 2903 (2004).

CRS-10

reflecting the Court’s continuing interest in federalism issues, and environmental

federalism in particular.40 Of the two decided so far (Alaska DEC and Engine

Manufacturers Ass’n), the Court ruled for the federal side in each, though only by 5-4

in Alaska DEC. In the two that are preemption cases (Engine Manufacturers Ass’n

and Bates) — again, instances where the United States is not a party — the

Department of Justice also took the position that the federal law prevailed. Thus, in

the cases reviewed here, there has been a consistent endorsement of the federal side

of the federalism argument by both Court and Administration. At least in the case

of the Administration, this pro-federal pattern may reflect the tension in the two

preemption cases between two Administration priorities — shifting power to the

states and reducing regulatory burdens — and the Administration’s decision to go

with the latter here.

40

For the constitutional side of the Court’s interest in environmental federalism, see (name

redacted),

Constitutional Bounds on Congress’ Ability to Protect the Environment (CRS Report

RL30670, last updated December 18, 2002).

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