LAW:

The attorney enviros hate to see at the Supreme Court

CHICAGO -- Tim Bishop, a member of his law firm's "green committee," has worked for the American Civil Liberties Union and clerked for two judges considered heroes of the environmental movement, and has been described by a former top U.S. EPA official as "quite liberal" early in his career.

It's not what you'd expect of a lawyer considered a top gun for industry in environmental cases before the Supreme Court.

Bishop has built an impressive record on natural resources and pollution cases at the high court: three wins, one loss and one draw. Starting in 2000, he litigated four major environmental cases before the high court in four years that yielded precedents bemoaned by environmentalists.

He has been involved in several environmental Supreme Court cases since, though he didn't argue before the court again until last year, when he worked with EPA to rebuff a challenge from environmentalists to the agency's policy for stormwater runoff from logging roads in Decker v. Northwest Environmental Defense Center. The odd couple won, 7-1.

Harvard Law School professor Richard Lazarus has called Bishop "industry's leading Supreme Court lawyer in environmental cases" and once credited him with "industry's single biggest win ever against the government in a Supreme Court environmental case," 2001's Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, which left wetland regulators wallowing in a legal muddle.

But Bishop hasn't been demonized by environmentalists. He's usually called a "lawyer's lawyer," recognized for presenting tailored arguments that serve his clients and are firmly rooted in the law. He is also widely respected for his ability to persuade the Supreme Court to hear his cases -- no small feat considering the justices receive thousands of petitions every year and select fewer than a hundred.

"He's not an ideologue in his personal advocacy or his briefs," said John Echeverria of Vermont Law School. "He's a very smart technical lawyer, and he makes the best technical arguments."

Bishop, 55, grew up in Bognor Regis, a seaside town on England's south coast, and remains loyal to the Manchester City soccer club. Bald, bearded, bespectacled and retaining a British accent, Bishop seems more like a college professor than a cutthroat lawyer -- albeit one who is passionate about his beliefs.

In fact, he considered a life in academia after graduating from the University of Oxford and Northwestern University School of Law. But he found the idea of sitting in a law school "cranking out articles that no one will read" boring.

Bishop, who frequently writes his briefs fully caffeinated in coffee shops, thrives on the excitement of a courtroom.

"Frankly, I don't know what I would do without the adrenaline," he said. "The adrenaline of having a client and an issue and having to persuade the court and dealing with everything you deal with in appellate litigation."

It was for much the same reasons that Bishop decided to practice in the United States rather than England.

"Virtually everything in civil and political life here comes down to being about law and potentially subject to litigation," Bishop said in a recent interview at his Mayer Brown office.

"Rights are enforced through litigation. ... The contours of rights are determined through litigation. A lot of things that we take for granted are as much the result of individual cases as action by Congress, which I don't think is true in the U.K."

Put simply: "Just struck me that it would be more fun as a lawyer over here than over there."

'Pure luck'

After graduating from law school in 1985, Bishop built a resume that would be welcomed at the Natural Resources Defense Council.

He clerked for federal appellate Judge James Oakes, whom Bishop called a "very smart, very liberal Republican."

Oakes, who died in 2007, remains highly regarded among environmentalist circles for advocating for tougher environmental protections. He played a large role in making Vermont Law School a leading environmental law program.

From there, Bishop headed to the Supreme Court, where he clerked for Justice William Brennan, one of the court's liberal lions.

Bishop arrived at the high court during a very contentious term in the late 1980s that revealed deeply held beliefs of both the justices and their clerks. It was Justice Anthony Kennedy's first term, and the liberal wing -- led by Brennan -- worried it was losing its grip on the court.

The docket that year included several controversial civil rights cases, including one involving workplace discrimination against a black woman.

According to "Closed Chambers: The Rise, Fall, and the Future of the Modern Supreme Court," by one of Bishop's fellow clerks, Edward Lazarus, Kennedy initially voted with the liberal bloc, but then, after reading Brennan's opinion that Bishop helped write, he switched to join the conservatives and ruled against the woman.

The switch confirmed the liberal justices' fears. By the end of the term, the normal court decorum had dissolved into hostility.

Lazarus wrote that on the last weekly happy hour in the Supreme Court's courtyard, a "shouting match started between" Bishop and Andrew McBride, then a clerk for Justice Sandra Day O'Connor.

"Not entirely sober, they trade taunts and epithets before graduating to shoves and swings that drove them into the courtyard fountain," Lazarus wrote.

McBride, for what it's worth, said he has "no long-term ill will" toward Bishop, but the two haven't kept in touch.

After his stint at the Supreme Court, Bishop worked for the ACLU on HIV and AIDS workplace discrimination issues.

While he found the work interesting -- one case involved a waiter who had been fired because he told his boss he was HIV positive -- Bishop recalls the media training as invaluable.

"That was the most valuable lesson I got from ACLU," Bishop said, "the importance of not being afraid of reporters, or cameras and microphones. That was an eye opener."

He quickly landed at Mayer Brown and began working on litigation. He said he ended up in environmental law by "pure luck" -- one of his mentors did work for the American Farm Bureau -- and because he thought it was ripe for Supreme Court cases.

"It seemed to me that the environmental area was increasingly important and the Supreme Court would increasingly have to intervene," he said. "It's an area where litigation wasn't going to go away. The environmental groups, EPA are not about to disappear."

Major Clean Water Act cases

One of Bishop's co-clerks in Brennan's chambers was Lisa Heinzerling, who served as a high-ranking official at EPA until recently.

Heinzerling, now a professor at Georgetown Law School, said Bishop was "quite liberal" when he clerked for the high court, but she characterized him as libertarian. And, indeed, Bishop readily acknowledges that he was a big supporter of former British Prime Minister Margaret Thatcher's policies of using privatization to revitalize the country's struggling economy.

"I don't think it would be surprising if I said I am almost never on the same side as Tim Bishop," Heinzerling said. Nevertheless, she praised Bishop's legal skills and, in particular, his ability to persuade the court to take up his cases.

"He not only has a good sense for the technical details," Heinzerling said, "but also a good read on what the court's mood is and how to appeal to that mood."

That may help explain how Bishop argued a string of four cases in as many years starting in 2000, when he lost the first case he argued before the justices -- Public Lands Council v. Babbitt -- a challenge to Clinton administration grazing regulations.

The following term, Bishop argued Solid Waste Agency of Northern Cook County v. Army Corps of Engineers -- a Clean Water Act case that continues to have ramifications for federal regulation of wetlands and waterways.

The case centered on an abandoned sand and gravel mining pit in Illinois that the Solid Waste Agency wanted to use as a disposal site. Trenches on the parcel had become ponds for migrating birds, so the agency asked the corps whether it needed a permit to fill them in.

The corps, citing the Clean Water Act and its migratory bird policy, denied the agency's application.

Bishop's arguments hinged on the sticky legal issue of what is a "navigable water" under the Clean Water Act and whether the small ponds, which resided entirely in Illinois, qualified for protections under the statute.

In a 5-4 vote, the court in 2001 sided with Bishop and the agency, holding that the Clean Water Act permit requirement for filling navigable waters doesn't apply to such a pit. The meaning of "navigable waters" continues to vex EPA, environmentalists and even the Supreme Court, which took on the issue again in 2006's Rapanos v. United States but failed to reach a concrete definition.

While declining to comment on Bishop specifically, Jon Devine, a senior attorney at the Natural Resources Defense Council, said the SWANCC decision's impact has been "terrible."

"SWANCC kicked off over a decade of confusion -- which continues to this day -- about what water bodies are covered by the pollution control programs of the Clean Water Act," Devine said. "The decision and its aftermath has led to countless waters being cut out of the law, torpedoed effective enforcement with respect to many critical small streams and wetlands, and created a windfall opportunity for lawyers and environmental consultants to argue that any particular waterway is not important enough to warrant Clean Water Act protections."

Bishop's other Supreme Court cases have also involved the Clean Water Act, including whether "deep plowing" for farming requires a federal wetlands permit. That case, Borden Ranch v. Army Corps of Engineers, ended in a 4-4 tie after Kennedy recused himself because he had been duck hunting with Bishop's client.

He also practices in other areas, including a high-profile class-action lawsuit against Sears Roebuck and Co. and Whirlpool Corp. involving a moldy smell from high-efficiency washing machines. The Supreme Court declined to review the case for a second time earlier this week.

At issue: courts' deference to agencies

Bishop sees the current trend of the Supreme Court hearing a growing number of environmental cases continuing -- though not entirely for the right reasons.

From an industry perspective, he said the Obama administration EPA has taken several actions that have been challenged by various interests and that should make it to the Supreme Court if they aren't resolved in lower courts.

EPA's retractive veto of a Clean Water Act permit for a major mountaintop coal mine in West Virginia is a prime example, he said, and the company holding the permit, a subsidiary of Arch Coal Inc., has asked the high court to review a lower court ruling upholding EPA's actions (Greenwire, Nov. 14, 2013).

He also sharply criticized EPA's landmark plan to clean up the Chesapeake Bay, regulations that have been praised by environmental groups. The agency's 2010 total maximum daily load, or TMDL -- the largest ever issued by the agency -- set a variety of pollution targets for various sectors, including stormwater, agriculture and septic systems in the watershed, which sprawls over 64,000 square miles.

Homebuilders and agribusiness have challenged the TMDL in court, but a U.S. district judge upheld EPA's plan last year. They have since appealed, and if they don't prevail, Bishop said, the Supreme Court may be receptive to the case (E&ENews PM, Oct. 8, 2013).

If EPA is allowed to set these sorts of limits, he said, "we don't need state and local government if EPA is going to do that. EPA has become sort of a super zoning agency."

Bishop also believes that the justices are becoming open to revisiting an important precedent in regulatory law commonly referred to as Auer deference. The name refers to a 1997 Supreme Court case that held that agencies deserve deference in interpreting their own regulations if those regulations are vague.

Justice Antonin Scalia was critical of the precedent in his Decker dissent, writing that "for decades, and for no good reason," courts have been giving agencies authority to say what their rules mean.

"Enough is enough," Scalia wrote.

Chief Justice John Roberts and Justice Samuel Alito have also signaled a willingness to rethink Auer, and that thinking may not be limited to the court's conservative wing.

If the court were to reverse that precedent, it would have far-reaching consequences for EPA. Bishop said the issue is about "basic fairness" of providing certainty to the regulated community.

"It's a significant democratic issue if you can promulgate rules that are vague, then interpret the rules as you go along, then you fail to provide notice," he said. "If there is one thing that landowners and business rely on, it's notice of what the rules require."

'Litigation should be a last resort'

The uptick in litigation is also driven by environmental groups that Bishop said are quick to file lawsuits driven more by the groups' fundraising needs and less by what is best for the environment.

"It upsets me that the environmental groups want to litigate these things," he said. "All of this is driven by getting dollars in the door. If you really wanted to address the clean water issue, you would not, I think, litigate first."

He added: "I am frustrated. My practice depends on litigation, but a lot of this litigation simply does not make sense. Litigation should be a last resort."

Of course, environmentalists would counter that industry is equally eager to challenge regulations it views as too stringent.

But despite his thoughts of certain regulations, Bishop isn't overly critical of EPA and notes that he has had a positive relationship with the agency in several cases.

In particular, he takes issue with a common framework -- environmental protection versus industry.

"It is remarkable how often industry and EPA are on the same side," he said. "I see what my kids are being taught in school, and it's very one-sided. I don't think it's a very balanced approach. You know, we could clean up the environment instantly if we stopped growing food and stopped building."

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