Forecast for enviro cases: murky with a chance of deadlocks

By Robin Bravender | 02/15/2016 01:17 PM EST

With the Supreme Court having eight sitting justices divided evenly among ideological lines in the wake of Justice Antonin Scalia’s death, it won’t be easy to secure majority opinions.

With the Supreme Court having eight sitting justices divided evenly among ideological lines in the wake of Justice Antonin Scalia’s death, it won’t be easy to secure majority opinions.

If the court splits 4-4, it upholds a lower court decision without setting a precedent.

That could change the landscape for cases in the pipeline, including a pending case about whether an Alaskan moose hunter can use his hovercraft within a national refuge and major energy and water cases slated to be argued later this term.


Depending on whether the Obama administration can get a nominee confirmed before the next president takes office, the seat could be vacant for several months or even a year or longer.

In cases where there is a 4-4 tie, the justices could also decide to rehear the arguments after a new justice is seated. That happened in several cases after Justice Samuel Alito was confirmed to replace retiring Justice Sandra Day O’Connor.

But while that might happen in hot-button cases this term dealing with issues like immigration and affirmative action, it’s less clear whether the court will divide evenly along ideological lines in some pending environmental cases. For cases where a majority can be reached without a ninth vote, the court can proceed with its business as usual.

In the major energy case already decided this term, the court issued a surprising 6-2 opinion to uphold an energy conservation rule, with Scalia writing the minority dissent. But Scalia’s vote wouldn’t have changed the decision.

Now, lawyers are scrambling to decipher how Scalia’s absence could change the dynamics in several big environmental cases on the docket for this term, and in other major cases that the court could soon decide to take on.

"The court can’t stop issuing decisions," Vermont Law School professor Patrick Parenteau said. "My guess is the court is going to continue marching through the docket."

Here’s a rundown of the court’s big environmental cases this term:

Alaska’s hovercraft-riding moose hunter

John Sturgeon has asked the Supreme Court to find that he can legally ride his hovercraft to hunt moose within an Alaskan national preserve. Two lower courts have disagreed with him, finding that National Park Service rules bar the use of his hovercraft. Sturgeon’s lawyer argued before the justices last month that NPS rules don’t apply to Alaska’s navigable waters, which are owned by the state.

After complicated oral arguments in the Sturgeon case, Harvard Law School professor Richard Lazarus recently told a gathering of environmental lawyers that he wouldn’t "begin to hazard a guess" on what the court will decide. "The justices were too confused to have any sense, I think, of what they think."

A 4-4 decision would uphold the 9th U.S. Circuit Court of Appeals’ opinion. It’s unclear whether the court would want to do that, particularly after that opinion was called a "ridiculous interpretation" by Alito during oral arguments last month. The court could decide to rehear the case next term if there’s a 4-4 impasse.

A decision is expected by the end of June (Greenwire, Jan. 20).

State power incentives

Up next at the court are arguments on Feb. 24 in two consolidated cases involving a Maryland program that provides incentives for new power generation. A lower court threw out the state program after judges found the incentives infringed on the Federal Energy Regulatory Commission’s turf. Energy lawyers will be watching this case closely, and some see it as a flipped version of the energy conservation rule case decided by a 6-2 margin earlier this year (Greenwire, Jan. 26).

A split court would uphold the 4th Circuit Court of Appeals’ opinion knocking down the state program, but the court may also be able to pull together a broader majority.

"On energy cases, I can’t really predict what the impact will be since he was not a decisive vote in any recent cases," said Jim Rossi, a law professor at Vanderbilt University. Still, he added, Scalia’s absence could steer "the court toward focusing more on how issues are framed in the record and less on bright-line rules such as a rigid divide between federal and state jurisdiction" of energy markets.

Clean water permits

Also coming soon are oral arguments in a major water case. On March 30, the justices are scheduled to hear arguments over whether a federal determination that a wetland qualifies for Clean Water Act protection can be subject to a court challenge. Property rights advocates contend that landowners should be able to challenge the Army Corps of Engineers’ determinations in court, while the government argues that the determinations aren’t final agency decisions and therefore shouldn’t be subject to review in court (E&ENews PM, Dec. 11, 2015).

Advocates of challenging the determinations in court are lamenting Scalia’s absence but still think they have a strong shot at winning a solid majority.

The case, Army Corps of Engineers v. Hawkes Co. Inc. bears similarities to a previous Clean Water Act case that the Supreme Court reviewed in 2012, Sackett v. EPA. In that case, the court ruled 9-0 that EPA compliance orders, which prevented an Idaho family from developing its property, could be challenged in court. Scalia wrote the majority opinion in that case.

"On the one hand, obviously he authored the opinion, so he had strong feelings on the case," said Mark Miller, an attorney with the Pacific Legal Foundation representing landowners in the case. However, Miller said, "it would seem that if they look at it the way they looked at Sackett, then hopefully we wouldn’t need his vote."

A 4-4 split would uphold the 8th Circuit Court of Appeals’ decision that such a determination can be challenged in court, even though that decision conflicts with a 5th Circuit ruling that those determinations can’t be challenged in court.

Property rights

The Supreme Court last month agreed to hear an appeal from a Wisconsin family that argues it suffered from an illegal government property "taking." The case involves four siblings who say regulators forced a merger of their two adjoining Wisconsin waterfront properties, hindered development and failed to properly compensate them for the economic loss they suffered. The case, Murr v. Wisconsin, is being closely watched by property rights advocates and environmental lawyers (E&ENews PM, Jan. 15).

That case is expected to be argued late this year after the court’s summer recess, so it’s somewhat more likely that a new justice would have joined the panel by then. A 4-4 split in the case would uphold a Wisconsin appeals court decision that combined two properties for takings purposes.

Pending petitions

The justices are expected to soon decide whether or not to grant petitions to hear several other big environmental cases. Taking on a new case will still require four votes, but Scalia’s absence may mean it’s tougher for justices to garner the needed support.

The court’s decisions on whether to take on new cases are where things might be "more interesting," said Todd Gaziano of the Pacific Legal Foundation.

"Some of the justices might be more selective in granting petitions, depending on how the political jockeying goes in the next few months," Gaziano said.

Here’s a look at a few of the pending cases the court could decide to take:

Chesapeake Bay cleanup

The American Farm Bureau Federation is urging the Supreme Court to topple the Obama administration’s Chesapeake Bay cleanup plan. The Farm Bureau and other critics of EPA’s pollution limits — called total maximum daily load — for the watershed argue that EPA’s approach violates the Clean Water Act. They’re asking the high court to reverse lower court decisions that upheld the plan. The Obama administration is urging the justices to reject the case, arguing that EPA acted within its authority. The court could decide as early as this month whether to take the case (Greenwire, Feb. 3).

Roadless rule — Alaska is prodding the justices to hear an appeal surrounding environmental protections for the Tongass National Forest in the southeastern part of the state. The Clinton administration declined to exempt the forest from a Forest Service "roadless rule" barring road construction, but the George W. Bush administration later exempted the Alaska forest. A federal appeals court struck down that exemption last July, and the state is asking the high court for a reversal. The court will likely decide in the next several months whether to hear the case (Greenwire, Oct. 16, 2015).

N.H. water contamination

Exxon Mobil Corp. is hoping the high court will hear its appeal in a case surrounding groundwater contamination from the gasoline additive methyl tertiary butyl ether, or MTBE. A jury awarded New Hampshire $236 million in the case against Exxon; that judgment was upheld by the state’s Supreme Court. But Exxon argues that the state was improperly allowed to sue on behalf of thousands of private well owners by using statistical sampling and extrapolation, therefore depriving the company of insisting that others were responsible for the contamination of particular wells. Click here to read Exxon’s petition to the court.