The Environmental Opinions of Judge Samuel Alito

Order Code RS22359

January 6, 2006

CRS Report for Congress

Received through the CRS Web

The Environmental Opinions

of Judge Samuel Alito

name redacted

Legislative Attorney

American Law Division

Summary

The nomination of Judge Samuel A. Alito, Jr., to serve on the Supreme Court has

prompted close scrutiny of his judicial opinions during 15 years as an appellate judge.

A review of the 34 opinions in environmental cases in which Judge Alito participated

generally reveals careful reasoning based on straightforward readings of statutes or

regulations, without broad philosophical assertions. At the same time, a small number

of his opinions arguably suggest endorsement of larger jurisprudential principles that

may present hurdles to environmental plaintiffs (through narrow interpretation of a

constitutional standing requirement), government enforcement (through stringent

evidentiary requirements), and congressional legislating (through a narrow reading of

the Commerce Clause).

The recent nomination of Judge Samuel A. Alito, Jr., to serve as an Associate Justice

on the U.S. Supreme Court has generated considerable interest in his judicial opinions

during his 15 years as an appellate judge. Judge Alito has served on the United States

Court of Appeals for the Third Circuit since April 30, 1990.

This report is based on a review of all the reported environmental decisions of the

Third Circuit in which Judge Alito was on the three-judge panel that initially decided the

case, or in the en banc group of judges that heard the case on review of the panel

decision.1 It does not confine itself, as did the recently reported Washington Post study,

to Third Circuit opinions in which there was a dissent.2 We construe “environmental”

broadly to include insurance coverage, Fourth Amendment, and other issues arising in an

environmental context — and included 34 decisions in our review. Not surprisingly given

the heavy concentration of industrial activity in some of the states within the Third

1

As identified by the Federal Environmental Cases database in Westlaw.

2

Amy Goldstein and Sarah Cohen, Alito, In and Out of the Mainstream, Wash. Post, Jan. 1, 2006,

at A1. Divided opinions, reflecting as they do close questions of law, are generally assumed to

be more representative of the type of issues of interest to the Supreme Court.

Congressional Research Service ˜ The Library of Congress

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Circuit,3 fully a dozen of these decisions involve liability for cleanup of contaminated

sites under federal or state “superfund” laws.

Judge Alito’s environmental decisions generally

Generally, Judge Alito’s environmental decisions are based on straightforward

readings of statutes and regulations, with little disposition to infer rights or duties not

clearly stated. They contain little in the way of broad philosophical statements. His

opinions reveal no obvious bias either for or against environmental causes per se. In the

20 opinions out of 34 in which it seemed there was a clear “environmental” side to the

arguments in the case, Judge Alito took the environmental side in ten, and took the

contrary position in the other ten.4 This 50-50 split could be better interpreted, however,

if we possessed information on whether it is typical of appellate judges generally.5

Suggestive of Judge Alito’s lack of any agenda in the environmental area is that with

the exception of the insurance-coverage decisions, the cases reviewed showed no

environmental decisions in which he dissented. That is, he was never “out on a limb” by

himself. Similarly, of all the decisions reviewed, Judge Alito himself authored a majority

or dissenting opinion in 11, but four of these arose in the four insurance-coverage

decisions. Subtracting these out, Judge Alito wrote in only seven out of 30 environmental

rulings in which he participated.

Judge Alito’s environmental cases found him favoring the prosecution side in

criminal cases, as commentators have observed is typically his wont. For example, in two

Fourth Amendment cases, Judge Alito joined unanimous panels upholding warrantless

Coast Guard searches of vessels seeking evidence of unlawful oil discharges.6

3

The Third Circuit encompasses Pennsylvania, New Jersey, Delaware, and the U.S. Virgin

Islands. See 28 U.S.C. § 41.

4

Decisions in which Judge Alito sided with the “environmental” argument include Southwestern

Pennsylvania Growth Alliance v. Browner, 121 F.3d 106 (3d Cir. 1997) (joining unanimous

opinion upholding EPA denial of state’s request to redesignate area from nonattainment to

attainment for ozone under Clean Air Act) and ALM Corp. v. U.S. EPA, 974 F.2d 380 (3d Cir.

1992) (joining unanimous opinion upholding EPA’s interpretation of Toxic Substances Control

Act to authorize EPA to penalize failure to certify shipments).

Decisions in which Judge Alito sided with the “non-environmental” argument include Clean

Ocean Action v. York, 57 F.3d 328 (3d Cir. 1995) (joining unanimous opinion upholding district

court’s denial of preliminary injunction against ocean dumping, notwithstanding “serious error”

by district court), and W.R. Grace & Co. v. U.S. EPA, 261 F.3d 330 (3d Cir. 2001) (joining twojudge majority opinion vacating as arbitrary and capricious an EPA emergency cleanup order

under the Safe Drinking Water Act).

5

The Washington Post study, which does report data on appellate judges generally (1990-1996),

aggregates environmental decisions with those on government regulation of land use, labor, and

securities, and thus is not useful here.

6

United States v. Varlack Ventures, Inc., 149 F.3d 212 (3d Cir. 1998); United States v. Boynes,

149 F.3d 208 (3d Cir. 1998). To similar effect is United States v. Kalb, 234 F.3d 827 (3d Cir.

2000), in which Judge Alito joined a unanimous panel upholding misdemeanor convictions for

having held a 20,000-person gathering in a national forest without a permit.

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Judge Alito’s decisions on larger jurisprudential issues likely to affect environmental

cases

While Judge Alito’s decisions (authored or joined) reveal no obvious sentiment as

to environmental suits per se, they arguably suggest his endorsement of larger

jurisprudential principles that may present hurdles to environmental suits, agency

enforcement, and congressional legislating.

1. Standing

Probably the most prominent of potential hurdles is Judge Alito’s view on standing,

to the extent it can be inferred from his joining the two-judge majority opinion in Public

Interest Research Group of New Jersey v. Magnesium Elektron, Inc.,7 a Clean Water Act

citizen suit. The majority opinion found that plaintiffs PIRG and Friends of the Earth

could not establish “organizational standing” to challenge a manufacturer’s multiple

violations of its NPDES permit8 through discharges into a creek that flowed into a canal

and river. To establish organizational standing, black-letter law has it that these groups

have to show that some of their members have standing to sue on their own — which, in

the majority’s view, they could not do. It was not enough, said the majority, that four of

the groups’ members fished and recreated less in the canal and river based on their

concerns about the multiple upstream permit violations. Those members had not

demonstrated actual injury to the waterways. (The court below had accepted the

testimony of Magnesium Elektron’s expert limnologists, who found that the company’s

discharges had not actually harmed the creek.) Recreating less without actual injury to the

affected waterways, the majority said, does not satisfy the “injury in fact” element of the

Supreme Court’s constitutional standing test.9

The view of “injury in fact” endorsed by the majority opinion joined by Judge Alito

was a stringent one. It required a considerable evidentiary showing by plaintiffs in the

threshold portion of their case — as to matters (harm to the environment) that were not

part of the case on the merits (discharge in exceedance of permit limits, regardless of

harm to the environment). Three years later, the Supreme Court came to the opposite

view, coincidentally also in a Clean Water Act citizen-suit case. In Friends of the Earth,

Inc. v. Laidlaw Environmental Services (TOC),10 Inc., the Court held 7-2 that the relevant

showing for Article III standing is not injury to the environment but injury to the plaintiff.

“To insist on the former rather than the latter ... is to raise the standing hurdle higher than

the necessary showing for success on the merits in an action alleging noncompliance with

7

123 F.3d 111 (3d Cir. 1997).

8

“NPDES” stands for National Pollutant Discharge Elimination System. The Clean Water Act

requires a NPDES permit for any point-source discharge into navigable waters. See Clean Water

Act § 402; 33 U.S.C. § 1342.

9

Along similar lines is the holding in Friends of the Earth, Inc. v. Gaston Copper Recycling

Corp., 179 F.3d 107 (4th Cir. 1999), reversed on rehearing en banc, 204 F.3d 149 (4th Cir. 2000).

The en banc reversal came one month after the Supreme Court’s decision in Laidlaw, discussed

in following text, and relies in part on that decision.

10

528 U.S. 167 (2000).

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an NPDES permit.”11 The Court said that reasonable concern on the part of a plaintiff

diminishing his/her recreational or aesthetic enjoyment of a resource is sufficient in and

of itself to show injury in fact. Dissenting, Justice Scalia, joined by Justice Thomas,

articulated a general demand for environmental injury as part of standing similar to that

of the majority view joined by Judge Alito in Magnesium Elektron.

2. Agency evidentiary burden

As in Magnesium Elektron in connection with standing, Judge Alito appears to favor

high evidentiary hurdles for agencies defending Administrative Procedure Act challenges

— at least based on the key decision on point. In W.R. Grace & Co. v. U.S. EPA,12 Judge

Alito joined a two-judge majority opinion vacating as arbitrary and capricious an EPA

emergency order under the Safe Drinking Water Act. The EPA order had sought to

protect a city’s drinking water wells from an ammonia groundwater plume emanating

from the company’s nearby fertilizer plant. In support of its ruling, the majority opinion

contended that no technical study had been done to determine the appropriate ammonia

standard, hence EPA’s adoption in the order of a 1.2 mg/l standard was unjustified.

Moreover, the majority said, EPA provided no rational basis for selecting the remedy it

chose (cleanup of the aquifer to 1.2 mg/l) when a consultant had concluded that another

approach would also be effective. The dissenting judge argued that given the emergency

public health context, a high degree of deference to EPA’s decision was called for, and

given such deference the agency’s action was adequately justified.

In contrast with the foregoing evidence-intensive case, Judge Alito shows himself

as more deferential to EPA when it comes to the agency’s interpretation of its statutory

authority.13

3. Federalism: Commerce Clause

Many federal environmental statutes are based on Congress’ power under the

Commerce Clause.14 That being so, the Supreme Court’s renewed interest in the Clause,

as part of its renewed interest in the constitutional relationship between the federal

government and the states generally, has been of special interest in the environmental

area. Since the Court’s seminal Commerce Clause decisions in Lopez15 and Morrison,16

a flurry of litigation has challenged as beyond Congress’ power certain intrastate

applications of the Clean Water Act, Endangered Species Act, Superfund Act, and Safe

11

Id. at 181.

12

261 F.3d 330 (3d Cir. 2001).

13

See first two opinions, Southwestern Pennsylvania Growth Alliance and ALM Corp., cited in

footnote 5 supra. In the former case, the majority opinion stresses the importance of Chevron

deference to the agency several times.

14

U.S. Const. art. I, § 8, cl. 3.

15

United States v. Lopez, 514 U.S. 549 (1995).

16

United States v. Morrison, 529 U.S. 598 (2000).

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Drinking Water Act.17 Indeed, two consolidated Clean Water Act cases explicitly raising

Commerce Clause issues are now before the Court18; with oral argument scheduled for

February 21, 2006, Judge Alito could conceivably be on the Court in time to participate

in deciding these cases.

The importance of the Court’s Commerce Clause jurisprudence has drawn much

attention to Judge Alito’s one judicial writing on the Clause. In United States v. Rybar,19

Judge Alito dissented from a two-judge majority opinion upholding as within Congress’

commerce power a general federal ban on the possession or transfer of machine guns. His

dissent concludes that the congressional ban fails each of the three established bases for

Congress’ invocation of its commerce power, and thus should be invalidated as currently

written. Previously, several federal circuits had determined, under various rationales, that

the ban was not a violation of the Commerce Clause. As noted in a separate CRS report,

Federalism: Selected Opinions of Judge Samuel Alito, Judge Alito’s dissent appears to

be “an argument for a more limited interpretation of the Commerce Clause than is

consistent with current case law.”20 The reader is referred to that report for extended

analysis.

4. Federalism: Eleventh Amendment and state sovereign immunity

A second federalism-type constraint on Congress’ power derives from the Eleventh

Amendment. The arcane terms of this amendment have been read expansively by the

Supreme Court to embody, but not to exhaust, broad principles of state sovereign

immunity. The Amendment bars Congress from authorizing private lawsuits against the

states, unless one of several exceptions applies.21 Of importance here is the exception

allowing Congress to abrogate state sovereign immunity through its authority under

section 5 of the Fourteenth Amendment to enforce the guarantees of that Amendment.

The Eleventh Amendment constraints on federal environmental statutes are limited

in scope, and arguably much less important than those under the Commerce Clause should

it be narrowed by the Supreme Court. The Amendment bars actions against only states,

not their political subdivisions or nongovernmental actors, and only by private entities,

not other states or the United States. Environmentally related private actions against

states — those not covered by the Amendment’s exceptions — arise principally in

connection with non-sovereign state activity (e.g., state ownership of solid waste

landfills). The Amendment has also insulated states from whistle blower actions brought

under federal environmental statutes by state employees alleging retaliatory treatment by

their state employers.

17

See generally CRS Report RL30670, Constitutional Bounds on Congress’ Ability to Protect

the Environment, by (name redacted), at 3-11.

18

United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004), cert. granted, 74 U.S.L.W. 3228 (Oct.

11, 2005) (No. 04-1034); Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004),

cert. granted, 74 U.S.L.W. 3228 (Oct. 11, 2005) (No. 04-1384).

19

103 F.3d 273 (3d Cir. 1996).

20

CRS Report RL33214, Federalism: Selected Opinions of Judge Samuel Alito, by (name reda

cted) and (name redacted), at 15.

21

See generally Meltz report, supra note 17, at 28-38.

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In Chittister v. Dep’t of Community and Economic Devpmt.,22 Judge Alito wrote for

a unanimous court holding that Congress, in enacting a provision of the Family and

Medical Leave Act, had not validly invoked section 5 of the Fourteenth Amendment to

abrogate state sovereign immunity. In contrast with his Rybar dissent on the reach of the

Commerce Clause, this holding appears to be “consistent with Supreme Court precedent

at the time.”23 The reader is referred to the aforementioned CRS federalism report for

extended analysis of the Chittister case.

22

226 F.3d 223 (3d Cir. 2000).

23

CRS Report RL33214, supra note 20, at 15.

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