Supreme Court Round Up

Supreme Court Round Up

By Anna Deffebach, Editor-in-Chief

The Supreme Court term beginning in October 2015 will certainly be discussed by constitutional scholars, widely discussed in legal circles, and perhaps go down as one of the most significant in recent years.[1] What this year at the Supreme Court will not be remembered for, however, is its impact on environmental law. Just days before the death of Justice Antonin Scalia, the Court issued a stay of the Obama Administration’s Clean Power Plan—a case still winding its way through the DC Circuit before potentially reaching the Court in the next few years.[2] Although there has been an incredible breadth of commentary about the Supreme Court’s highly unusual action in issuing the virtually unprecedented stay[3], the stay itself was not part of a case pending before the Court, and the Court’s actual merits cases this term will likely not leave a great impact on environmental law.

Two cases are worth discussing, not only because they may have an impact on environmental law, but also because they might be foreshadowing future environmental law cases before the Court. The first of these, a case hotly discussed when it was first heard, is Spokeo v. Robbins, which, although not itself an environmental case had the potential to dramatically influence the doctrine of standing which is often important in environmental law.[4] The second case is Hawkes v. Army Corps of Engineers, tangentially related to the important Waters of the United States Rule, likely to arrive at the Court’s doorstep in the next few years.[5]

Spokeo involved a challenge brought under the Fair Credit Reporting Act after Mr. Robbins discovered that the credit reporting agency Spokeo had reported erroneous information about him, including that he had a family and was highly educated, which he feared might have a negative impact on his job search.[6] The district court dismissed Robbins’ claim for lack of standing—finding that he had failed to allege a concrete, particularized injury.[7] The Ninth Circuit reversed, and allowed Robbins’ claim to go forward.[8] The Supreme Court, in a 7-2 decision found that the Ninth Circuit had not properly analyzed whether Mr. Robbins in fact had suffered a sufficiently concrete and particularized injury. [9] The Ninth Circuit, according to Justice Alito’s opinion, had “elided” the two requirements for proving an injury, that it be both “concrete” and “particularized.”[10] The Court found that the Ninth Circuit had assumed that, because Mr. Robbins’ injury was particularized, therefore it was also concrete.[11] The case was sent back to the Ninth Circuit to make the proper injury determination, and it could very likely return to the Court in a future term.[12]

Why was Spokeo potentially significant for environmental law? Standing is often difficult to prove in environmental cases, and had the Court chosen to relax the standing requirement, perhaps even allow for a mere statutory injury rather than proof of any actual harm it could potentially have paved the way for future lawsuits aimed at environmental protection.[13] The Court, after reading the Spokeo opinion, seems disinclined to move in that direction—at least for the moment. Perhaps the next time Spokeo or another decision that deals with standing arrives at the Court, a new justice will have been confirmed to fill Justice Scalia’s vacant seat, bringing with him or her a new perspective on the standing doctrine.[14]

In Hawkes, the Court was faced with the question of whether the Army Corps of Engineers Jurisdictional Determination or “JD” could be considered a final agency action, which individuals could challenge in court.[15] The plaintiffs in Hawkes, a group of landowners who grow peat for putting greens, received a JD from the Army Corps that their wetlands contained waters of the United States, and were therefore subject to CWA 404 permitting requirements.[16] When the landowners learned how expensive and onerous the permitting process would be, they brought suit challenging the JD.[17] However, the Army Corps argued that the JD was not itself a legal determination, but merely guidance that clarified the legal status of the landowners’ land.[18] In a unanimous opinion for the Court, Justice Roberts found that the JD met both prongs of the test from Bennett v. Spear[19]—the JD was the consummation of the Corps decision-making process and it created rights and obligations from which legal consequences would flow.[20] Of particular importance to Justice Roberts was a Memorandum of Agreement between the Corps and the EPA that stated that any JD made by the Corps would be binding on the government.[21]

Why was Hawkes significant? The Army Corps offered its own interpretation of what the Memorandum of Agreement meant.[22] They argued that the Memorandum of Agreement only applied to certain unique cases—and did not apply in the instant case. The Court, following in a recent trend, did not defer to the Agency’s interpretation and instead interpreted for itself the meaning of the text of the Memorandum of Agreement.[23] Following in the wake of Brown and Williamson Tobacco, this case raises questions as to the extent of agency deference that the Court will afford in cases where it disagrees with the agency’s interpretation.[24] Now that jurisdictional determinations can be challenged by landowners who suddenly find themselves owners of property containing waters of the United States, it is possible that the new Waters of the United States rule could be subject to constant as-applied challenges, assuming it survives judicial review in the coming years.[25]

While 2016 was a landmark year for many areas of law, from Fourth Amendment jurisprudence[26] to affirmative action[27] to abortion[28], political corruption[29] and immigration[30]; it was not a landmark year for environmental law. The Court certainly will face many important environmental cases in years to come, and we at the Georgetown Environmental Law Review look forward to learning from them.

[1] Paul Waldman, The Supreme Court reminds everyone why it’s the most important issue in the 2016 election, Washington Post, (June 23, 2016), https://www.washingtonpost.com/blogs/plum-line/wp/2016/06/23/the-supreme-court-reminds-everyone-why-its-the-most-important-issue-in-the-2016-election/.

[2] Lisa Heinzerling, The Supreme Court’s Clean-Power Power Grab, 28 Geo. Envtl. L. Rev. 425 (2016).

[3] Id.

[4] Anna Deffebach, There and Back Again: Will the Supreme Court Return to Pre-Lujan Standing Requirements?, 10/30/2015 Geo. Envtl. L. Rev. Online 1 (Oct. 30 2015).

[5] Jonathan H. Adler, Sixth Circuit claims jurisdiction to hear merits of challenge to EPA ‘waters of the United States’ (WOTUS) rule, Washington Post, (Feb. 22, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/22/sixth-circuit-claims-jurisdiction-to-hear-merits-of-challenge-to-epa-waters-of-the-united-states-wotus-rule/.

[6] Spokeo Inc. v. Robbins, 136 S. Ct. 1540, 1546 (2016).

[7] Id. at 1538.

[8] Id. at 1546.

[9] Id.

[10] Id. at 1549.

[11] Justices Ginsburg and Sotomayor disagreed, finding that Robbins had already alleged a concrete harm to his employment prospects, and therefore had satisfied the requirements of standing. Id. at 1554.

[12] Amy Howe, Opinion analysis: Case on standing and concrete harm returns to the Ninth Circuit, at least for now, SCOTUSblog (May. 16, 2016), http://www.scotusblog.com/2016/05/opinion-analysis-case-on-standing-and-concrete-harm-returns-to-the-ninth-circuit-at-least-for-now/.

[13] Andrew H. Perellis and Patrick D. Joyce, Does the Supreme Court’s ruling in Spokeo v. Robins Change the Standing Requirements for Pursuing Environmental Citizen Suit Claims?, Environmental and Safety Law Update, (May 20, 2016), http://www.environmentalsafetyupdate.com/environmental-litigation/does-the-supreme-courts-ruling-in-spokeo-v-robins-change-the-standing-requirements-for-pursuing-environmental-citizen-suit-claims/.

[14] Eduardo Porter, Next Supreme Court Justice Will Be Crucial To Climate Change, NY Times, (Feb 16, 2016), http://www.nytimes.com/2016/02/17/business/economy/next-supreme-court-justice-will-be-crucial-to-climate-change.html.

[15] Miriam Seifter, Argument preview: Diving into finality issues under the Clean Water Act, SCOTUSblog (Mar. 24, 2016), http://www.scotusblog.com/2016/03/argument-preview-diving-into-finality-issues-under-the-clean-water-act/.

[16] U.S. Army Corps of Engineers v. Hawkes, 136 S. Ct. 1807, 1811 (2016).

[17] Id. at 1813.

[18] Id.

[19] Id., see also Bennett v. Spear, 520 U.S. 154 (1997).

[20] Id.

[21] Id. at 1815 fn. 3.

[22] Miriam Seifter, Opinion analysis: Narrow loss for the government in Clean Water Act finality case, SCOTUSblog (Jun. 1, 2016), http://www.scotusblog.com/2016/06/opinion-analysis-narrow-loss-for-the-government-in-clean-water-act-finality-case/.

[23] Adam White, Symposium: Defining deference down, SCOTUSblog (Jun. 25, 2015), http://www.scotusblog.com/2015/06/symposium-defining-deference-down/.

[24] Andy Grewel, Brown and Williamson vs. Congressional Intent, Notice and Comment, Yale J. of Reg., (June 30, 2015), http://www.yalejreg.com/blog/brown-williamson-vs-congressional-intent-by-andy-grewal.

[25] Tasha Goldshan, This Supreme Court Decision Has the Potential to Weaken The Clean Water Act, Vox, (May 31, 2015), http://www.vox.com/2016/5/31/11656624/united-states-army-corps-of-engineers-vs-hawkes-clean-water-act-supreme-court.

[26] Utah v. Strieff, 136 S.Ct. 2056 (2016).

[27] Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016).

[28] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[29] McDonnell v. United States, 136 S. Ct. 2355 (2016).

[30] United States v. Texas, 136 S. Ct. 2271 (2016).

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