Slew of environmental cases sets up 'incredibly high-profile term'

The Supreme Court returns from its summer recess today with a U.S. EPA air pollution case already on its calendar and several other environmental issues potentially on the horizon.

Operating as usual during the government shutdown at least through Friday, the court will settle in tomorrow with arguments in a high-profile campaign finance case involving a coal executive whom environmentalists have sharply criticized.

Later in the term, the justices will consider EPA's program for addressing pollution that drifts across state lines, the president's recess appointment authority and a property rights case challenging the Forest Service's rails-to-trails program in Wyoming.

Court watchers are also eagerly waiting to see whether the court will take up any of the nine petitions from 80 interested parties and 17 states to review aspects of EPA's greenhouse gas regulations. The justices did not give any indication this morning of whether they will hear the case.

If the justices grant a broad review of EPA's greenhouse gas regulations, environmental issues would be some of the most closely watched at the court this term, said John Walke of the Natural Resources Defense Council.


"The significance of the term will increase if the greenhouse gas case is taken," Walke said. "It's very rare to have two Clean Air Act cases on the Supreme Court's calendar in the same term."

The court's first -- and most closely watched -- environmental case zeroes in on EPA's Cross-State Air Pollution Rule, or CSAPR. The program, which would apply to 28 Eastern states, was thrown out by the U.S. Court of Appeals for the District of Columbia Circuit in August 2012.

A three-judge panel held that EPA had exceeded its Clean Air Act authority by requiring some states to reduce their emissions of hazardous pollutants by more than they were contributing to other states' pollution. The panel also criticized EPA for infringing on states' rights by skipping state implementation plans in favor of federal ones (Greenwire, Aug. 21, 2012).

Downwind states, public health advocates and EPA sharply criticized the ruling and asked the Supreme Court to review it. A key issue in the case will be whether EPA can craft a cross-state program that stands up to legal scrutiny. Before CSAPR, the George W. Bush-era Clean Air Interstate Rule, or CAIR, was also thrown out by the D.C. Circuit in 2008 for being insufficient to protect public health.

"The CSAPR case alone makes it an incredibly high-profile term," said Jacob Hollinger of McDermott Will & Emery, a former EPA Region 2 air lawyer. "It's such an intractable and difficult problem. And it affects so much of the country."

The court is scheduled to hear arguments in the case Dec. 10.

Executive challenges campaign contribution limits

Tomorrow, the court will consider the biggest campaign finance case since Citizens United v. Federal Election Commission, and environmentalists have been quick to take sides in the case.

Shaun McCutcheon, the owner of an Alabama electrical engineering company that provides services to coal companies, and the Republican National Committee are challenging the federal aggregate limit on how much an individual may give to candidates, parties and political action committees in a two-year election cycle.

The total limit is currently $123,200 for the 2014 cycle, a cap of $48,600 on contributions to candidates alone and $74,600 to parties and political action committees. McCutcheon says he has no problem with the current limit of $2,600 per candidate, but he and his lawyers will contend that he should be able to give to as many candidates and PACs as he wants.

Had he been able to give more, McCutcheon said, his contributions last cycle would have topped the 2012 candidate limit by about $8,000, and the party and PAC limit by more than $26,000 (E&E Daily, Sept. 17).

Campaign finance watchdogs and environmentalists say the case raises red flags. It could mark the first time that the court has ever overturned a limit on direct contributions to candidates. (In Citizens United, the court threw out limits on the amount of money individuals and corporations could spend on independent expenditures only.)

Further, if the aggregate limit is lifted, individuals could give large sums across a range of candidates and parties that could then be funneled to help a single candidate, said Fred Wertheimer of Democracy 21.

"If the aggregate limits are declared unconstitutional, an individual could solicit a single check from a donor -- for various political party committees -- for $1 million," he said. "That money could end up being spent for the individual who solicited it."

Environmentalists say that would open the door to oil and energy interests' having a larger influence on elections. McCutcheon, they claim, has given significantly to candidates who deny the existence of climate change.

"Those that are trying to poison our democracy are the same who are polluting our air and water," said Michael Brune of the Sierra Club. "If you want to see more attacks on our air, our climate, our water, gut these laws."

Wyo. property owner: Get trail off my land

Later in the term, the justices will hear a Wyoming property owner's challenge to the Forest Service's construction of a trail on some of his land.

At issue in the case is roughly 66 miles on which the government allowed the Laramie, Hahn's Peak and Pacific Railroad Co. to run a railroad from Laramie, Wyo., to the Colorado line. The railroad was abandoned around 2000, and some of the land became part of the Medicine Bow-Routt National Forest. Other parts of the land were privately developed, including Marvin Brandt's 83 acres in Fox Park.

In 2005, the Forest Service announced it intended to build a trail on some of the land, claiming it had a "reversionary interest" in the land under the 1875 General Railroad Right-of-Way Act. The service later sued Brandt and others, asking courts to declare its overriding ownership of the land.

The Forest Service has prevailed in court thus far, with the 10th U.S. Circuit Court of Appeals ordering Brandt to turn over the land. The trail has since been completed, but Brandt claims the 10th Circuit ruling contradicts the holdings of several other circuit courts and has asked the Supreme Court to resolve the issue (E&ENews PM, Oct. 1).

Rails-to-trails programs have been sharply criticized by property rights advocates across the country. Lawyers involved in the case estimate that federal rights of way like the one involved in the case make up hundreds of thousands of miles in the West and could be affected by the Supreme Court's decision.

Obama's recess appointments

The president's constitutional recess appointment authority is another issue the court will take up later this term.

President Obama asked the court to review a January D.C. Circuit ruling that undercut his ability to make appointments during congressional recesses to avoid Senate opposition.

The case centers on three appointments that Obama made to the National Labor Relations Board on Jan. 4, 2012: Deputy Labor Secretary Sharon Block, NLRB counsel Terence Flynn and lawyer Richard Griffin. Republicans opposed the nominees, so Obama waited until the end-of-year recess to make the appointments.

Noel Canning, a Washington state soft drink bottler, challenged the appointments, and the D.C. Circuit said they were invalid because the Senate was conducting pro forma sessions and, consequently, was technically not in recess.

The D.C. Circuit went even further, though, and ruled that the president may only make recess appointments between sessions of Congress -- that is, at the end of every calendar year -- and that the president may only fill vacancies that also occurred during that recess (E&ENews PM, Jan. 25).

If the Supreme Court lets it stand, the ruling would severely limit the president's appointment abilities -- whether for the NLRB, for EPA or to the federal bench -- in the face of opposition on Capitol Hill.

Other cases on the horizon

The court has yet to select all of the cases it will hear this term, and two other environmental cases have caught the attention of court watchers as ones the justices may want to resolve.

In one, the D.C. Circuit in April upheld EPA's authority to veto an Arch Coal Inc. Clean Water Act permit for a West Virginia mine four years after it was issued.

Industry has sharply criticized EPA's action, which affected Arch's Spruce No. 1 mine in Logan County -- one of the country's largest mountaintop-removal coal mines. It was one of the first times EPA has ever retroactively vetoed this type of Army Corps of Engineers permit.

But the D.C. Circuit held that the "unambiguous language" of the Clean Water Act allows EPA to withdraw such a permit at any time (Greenwire, April 23).

Arch swiftly asked the Supreme Court to review the case, and the company enlisted former U.S. Solicitor General Paul Clement -- one of the most accomplished Supreme Court litigators in the country -- to argue the case.

A second case from Florida involving the timing of when environmental groups may challenge water regulations is also on the radar of some court watchers, especially because EPA has asked the court to take the case (Greenwire, July 1).

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