The Supreme Court is taking a keen interest in West Coast environmental cases this term -- and wants the Obama administration to do the same.
So far, the justices have asked the administration's advocate before the court, Solicitor General Donald Verrilli, to weigh in on four cases with an environmental bent, all of which are out of the San Francisco-based 9th U.S. Circuit Court of Appeals.
To ask for the administration's views on that many cases in a similar area of the law in one term, all from one court of appeals, is relatively rare, legal experts say.
"It's unusual in the sense that you wouldn't expect four such cases in a single term," said Arthur Hellman, a law professor at the University of Pittsburgh School of Law.
The high court has not yet granted review in any of the cases, but the move asking for the administration's views generally means the chances of its doing so are increased.
The most recent request for the solicitor general's views came Monday when the court called for the administration to file a brief in American Trucking Associations v. Los Angeles, a case concerning the legality of the clean truck program at the Port of Los Angeles (Greenwire, March 26).
One of the other cases, Los Angeles County Flood Control District v. Natural Resources Defense Council, is also out of Los Angeles. It concerns a claim made by Los Angeles County that it shouldn't be held liable for polluted stormwater that is discharged into two rivers (Greenwire, Jan. 17).
The third, Pacific Merchant Shipping Association v. Goldstene, also is California-related. The legal question is whether California regulators have authority to require vessels to use low-sulfur fuels within 24 miles of the state's coast (Greenwire, Oct. 3).
The fourth case is out of Oregon but possibly has the biggest national implications: It focuses on whether stormwater runoff on logging roads requires Clean Water Act permitting (Greenwire, Dec. 12), 2011.
The issue is presented in two related petitions before the court: Decker v. Northwest Environmental Defense Center and Georgia-Pacific West Inc. v. Northwest Environmental Defense Center, in which the state of Oregon and the timber industry, respectively, are seeking review of the 9th Circuit ruling.
In all four cases the 9th Circuit could broadly be described as ruling in favor of environmental interests at the expense of either government entities or business.
The justices tend to review a large number of 9th Circuit cases in general. This term, of the 75 cases the court agreed to hear on the merits, 25 were from the 9th Circuit, or 33 percent of the total, according to the SCOTUSblog website. That's significantly more than any other circuit.
The appeals court is generally viewed as the court most out of sync with the Supreme Court's jurisprudence, partly because it is seen as more liberal-leaning than the high court, but also because it has more judges than any other circuit, which can lead to a wider array of possible outcomes.
Of the 15 9th Circuit cases the Supreme Court has issued decisions on so far this term, the justices have reversed the appeals court 12 times and affirmed it just twice, SCOTUSblog reports. That's a reversal rate of 80 percent.
Number of factors
There are a number of factors that may explain the relatively large number of requests the court has made of the solicitor general.
The most obvious, Hellman said, is that a "high proportion" of the court's environmental docket comes from the 9th Circuit, which has jurisdiction over nine Western states. That's partly because some of those states -- California being the most obvious example -- are generally more active in passing environmental legislation than some other states.
Another factor is that the United States is not already a party to any of the four cases, Hellman noted. In most environmental cases, the government is a party, meaning there is no need for the Supreme Court to formally ask for the administration's views.
Asking for the solicitor general's views is "fairly common in areas where federal interests may be involved and where non-federal parties are arguing about how a complex or technical program works," said Sean Donahue, a former Supreme Court clerk who works on environmental cases at the Donahue & Goldberg law firm.
The federal government likely would have a keen interest in all four cases anyway: Two of them involve Clean Water Act regulations, and the other two, the shipping and trucking cases, both focus on questions of whether federal law pre-empts state and local regulations.
The Natural Resources Defense Council is a party in all three of the California cases.
One of its attorneys, Joel Reynolds, downplayed the Supreme Court's requests, stressing that it does not signify that the court will take up the cases.
"The fact that the court has asked for the solicitor general to review them I don't think is particularly significant," he said.
Although it does indicate that some members of the court might be inclined to take the cases, it does not mean the court as a whole wants to do so, he added. For the court to grant review, four of the justices have to vote in favor.
The requests "may reflect the interest that a particular justice has," Reynolds said.