Category Archives: environment

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.

484 U. S. 49

December 1, 1987

The Clean Water Act allowed for private citizens to initiate civil suits against anyone “alleged to be in violation” of the Act. One company was sued in such an action, but all of the polluting had ceased before the suit was filed. Because the company was no longer polluting, they argued that they could not “be in violation” of the Act, and the suit should be dismissed.

Unanimously, the Supreme Court agreed that the Act did not cover suits for past pollution. Justice Marshall carefully parsed the statute’s language. Although apparently ambiguous, close textual analysis revealed that the private citizen suits were assumed to be forward rather than retrospective looking. What’s more, excluding past pollution from lawsuit was both in line with legislative history, and the law’s purpose of having private suits supplement rather than replace government action. Nonetheless, instead of dismissing the suit, Marshall remanded. Because only allegation of violation was required by the statute, he felt the case could still go to trial if the allegation had been made in good faith.

Scalia, joined by Stevens and O’Connor, objected to this final holding. A simple allegation was not enough for a case to go forward. At least some hard evidence of actual violation would need to be adduced, else anyone could go around coming up with baseless allegations. Even so, Scalia still concurred in the remand. While the company had not polluted for a few weeks prior to the suit’s genesis, to get it dismissed, they would have to demonstrate that they had taken affirmative steps to not pollute anymore. “A good or lucky day is not a state of compliance.” I’m glad for the unanimous portion of the case, but I’m sad Scalia lost on the reason for the remand. Frivolous lawsuits must be discouraged, and requiring hard evidence to back up allegations is a good start.


Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air

483 U. S. 711

June 26, 1987

After several years of legal wrangling, a group of annoying environmentalist busybodies forced Pennsylvania to take some green measures. Lawyers for the Council had worked on a contingent basis, and after victory, the court granted the Council attorney fees. The court tried to adjust the amount of fees dramatically upward to reflect the risky and contingent nature of the litigation. Pennsylvania protested that this upward adjustment was not within the court’s discretion.

The Court unanimously vacated the lower court’s fee award, but broke into three blocs about what to do next. White, also writing for Rehnquist, Powell, and Scalia, said that no adjustments should be allowed. Computation of fees already took into account lengthiness and difficulty of the litigation. Furthermore, deciding what cases are “risky” is totally arbitrary. Finally, the adjustment system would unfairly punish parties who lost very legally strong cases. White concluded by questioning whether the lawsuit even involved as much risk as was claimed, and said that in any event the upward adjustments were far too high.

Blackmun, joined by Brennan, Marshall, and Stevens, said that court-awarded contingency fees needed to be at least roughly equal to fees in the overall legal marketplace; otherwise, many good cases will never attract counsel. Blackmun then tried to explain how upward adjustment could be done in a fair and arbitrary manner that avoided most of the plurality’s doubts and what-ifs. He felt courts could come up with appropriate multipliers. Nonetheless, he still felt the factual record was underdeveloped, and thought the lower court should start from scratch in determining the appropriate amount of fees.

O’Connor’s opinion is an infuriating attempt to split the baby. She agreed with Blackmun that upward adjustment was sometimes necessary, and that having the fees be competitive with the general marketplace was of great importance. She agreed with White that multipliers should not be used, that “risk” should not be considered, and that some concerns about arbitrariness were well founded.

This case was argued twice, and it still failed to receive a half-decent conclusion. O’Connor should have picked a side. Her hemming and hawing only makes for more judicial headaches. I pity the poor judge who had to deal with this case on remand. With regard to the merits, I can only say that I’m in favor of anything that cuts down on massive attorney fees.

Utah Div. of State Lands v. United States

482 U. S. 193

June 8, 1987

The question in this case was who owned the bottom of a lake. Not the water in the lake, but the land beneath it. Under the old colonial rule, every state got the right to sub-water lands. But in 1888, Congress passed a law that gave the United States the power to reserve certain lakebeds for itself. By this law, the land under Utah Lake was reserved the next year. The state of Utah contended that it got title upon statehood in 1896.

In a 5-4 ruling, the Court said that Utah, and not the United States, had ownership of the lakebed. O’Connor wrote for the majority, and first noted that the government bears a heavy burden of proof to show that a state is divested of its traditional legal possession. After examining the history of federal land regulation in the 1880s, she concluded that it was far from clear that Congress meant to give the United States irrevocable ownership of submerged lands. Whatever evidence existed in the debates of Congress and in the work of geological surveyors, it wasn’t enough to overcome the presumption of state title to all lakebeds.

White dissented, and was joined by Brennan, Marshall, and Stevens. He found that the geological surveyors of the day were quite clear in asserting title of the lakebed against future state claims. He also showed that subsequent acts of Congress did demonstrate a knowledge of this ownership, rather than the apathy that the majority opinion claimed. White finished by talking about the government’s strong interest in retaining title due to potential compensation it would have to pay to a state for land use.

I’ve been amazed by the amount of times that either Blackmun or Stevens bailed out the more conservatives Justices when one of their number defected. You just don’t see that happen much anymore. As to the ruling itself, I have no clue which side was more legally correct. It’s cases like this that really make you understand why ideological voting would develop on the Supreme Court. Sometimes there isn’t a clear legal answer, and the most salient thing you can latch onto is the identity of the parties. Goodness knows I’m glad the state won, and not the federal government.

Tull v. United States

481 U. S. 412

April 28, 1987

A construction company dumped some waste on federally protected wetlands, in violation of the Clean Water Act (CWA). The CWA allows for steep fines to be imposed on violators, and the United States accordingly sought a ghastly penalty against Tull of $22 million. Tull argued that the Seventh Amendment entitled him to a jury trial, but he was overruled and a District Court found him guilty. It imposed the marginally less horrid fine of $325,000.

Unanimously, the Supreme Court ruled that a jury trial was required when monetary damages were sought under the CWA. Brennan explained that the Seventh Amendment’s touchstone was whether the remedy sought was legal or equitable in nature. In view of the absurd and clearly punitive fines which were both sought and assessed, the Court held that such a remedy could not possibly be considered equitable. Indeed, the very structure of the CWA seemed to presuppose that the fines were not to be deemed equitable in nature. Nonetheless, on the strength of historical practice, the Court also held that a jury would not be allowed to determine the amount of the fine.

Scalia dissented from this last holding, and was joined by Stevens. He thought that the jury rather than the judge should more appropriately determine the fine if the amount was not specifically fixed by the legislation itself. “I doubt the Founding Fathers would be upset,” he concluded wryly. I would join Scalia’s opinion. More than that though, this case demonstrates why I hate legislation like the Clean Water Act. Charging a construction company $22 million for polluting some wetlands is the most disgusting sort of brutish government bullying. Congress needs to quit passing broad pieces of legislation that give federal prosecutors so much dangerous power to destroy ordinary people’s lives.

California Coastal Comm’n v. Granite Rock Co.

480 U. S. 572

March 24, 1987

Granite Rock obtained regulatory permission from the Forest Service to conduct mining operations in federal lands for five years. A few years into the mining operations, the California Coastal Commission (CCC) demanded that Granite Rock obtain a permit from them as well. Granite Rock refused, claiming that the CCC was preempted from adding land use regulations to those promulgated by federal agencies.

In a 5-4 decision, O’Connor wrote that state permits like those demanded by the CCC were not per se preempted by federal regulation. First, the Court unanimously turned back some jurisdiction issues. The case was not moot even though Granite Rock’s mining operations had ended, and it was not barred due to a state statute being held unconstitutional by a Court of Appeals (the Court had not considered the statute which gave rise to the CCC). Turning to the merits, O’Connor argued that Forest Service regulations made plentiful mention of the desire to not preempt state environmental laws. Next, she contended that the CCC’s permit system was not land use regulation, which the Court did admit might be preempted under certain federal laws. Because the CCC did not seek to outright prohibit any company from mining, the Court characterized the permit system as environmental regulation rather than land use planning. Finally, O’Connor rejected an argument that a federal law called the CZMA precluded state regulation, since the plain text of that law proved otherwise. Somewhat amazingly, she managed to do all of this using only two footnotes.

Powell wrote a dissent joined by Stevens. First, he found that, despite condoning certain state regulation, the Forest Services rules actually suggested that California’s system¬†would be preempted because of the expressio unius principle. Second, he found it impossible to distinguish land use planning from environmental regulation. Third, he thought state interest in regulation was minimal due to a clause in the Constitution giving the government plenary control over federal lands. Finally, he argued that state permit systems could easily thwart federal land use regulations.

Scalia wrote a dissent joined by White. His argument was quite simple: there was absolutely no way to call the CCC’s permit system anything other than land use regulation, and land use regulation was clearly preempted. His examination of the CCC’s purposes, powers, and behavior provided especially strong support for this claim. It’s a brilliant dissent. In my opinion, this is the first Scalia opinion of the term that really showcases his unique voice. As to the decision itself, I’ll say only that it was an awful ruling, and that states should get out of federal land regulation.

Memorable quote from Justice Powell: “In summary, it is fair to say that, commencing in 1872, Congress has created an almost impenetrable maze of arguably relevant legislation in no less than a half-dozen statutes, augmented by the regulations of two Departments of the Executive. There is little cause for wonder that the language of these statutes and regulations has generated considerable confusion.”

Amoco Production Co. v. Gambell

480 U. S. 531

March 24, 1987

The Secretary of the Interior permitted oil companies to search for oil in the Bering Sea next to Alaska. The Native village of Gambell objected, claiming that this permit would interfere with its statutory hunting and fishing rights in the ANILCA law. Despite a report by the Secretary showing that these rights would not be burdened, a Court of Appeals granted a preliminary injunction against the oil companies, arguing that some technical requirements of ANILCA had still been violated, and that government interest in preserving Native rights outweighed the interest in energy independence.

Unanimously, the Supreme Court vacated the preliminary injunction. Writing for the Court, White explained that preliminary injunctions should not be issued for mere technical violations of a law, especially when no evidence existed that the oil exploration would actually jeopardize the subsistence rights of Indians. Thus, there was no irreparable harm which warranted an injunction. White also held that ANILCA did not even apply in this case because its reach was strictly limited to the legal boundaries of the State of Alaska. This was proved by plain language, statutory construction canons, and legislative history. The location of the oil exploration was in waters not under the state’s legal jurisdiction.

Stevens, joined by Scalia, wrote to posit that ANILCA’s geographic reach completely disposed of the case. Accordingly, they did not join the section of the Court’s opinion about the standards for a preliminary injunction. Reading this case, it seems amazing that energy exploration ever happens at all. Apart from frivolous legal challenges like the Gambell case, oil companies have to make it through a red tape obstacle course of doom, as footnote 5 documents. Sadly, that obstacle course has only become more difficult since 1987 (see the Keystone pipeline nonsense).

Stringfellow v. Concerned Neighbors in Action

480 U. S. 370

March 9, 1987

Worried by a local hazardous waste site, a group of busybodies banded together and called themselves Concerned Neighbors in Action (CNA). CNA moved to be joined as a party in a lawsuit the United States was conducting against the waste site. The District Court ruled that CNA did not have a right to intervene, but permitted them to intervene anyway with some tight restrictions placed on its participation in the suit. CNA tried to appeal this decision immediately.

Unanimously, the Court smacked down CNA’s attempt at interlocutory appeal. Powell explained that decisions on intervention are only appealable after final judgment in the case, unless the issue would be¬† non-reviewable at that later stage. As a party, CNA retained full rights to appeal the intervention decision once a final ruling had been made on the hazardous waste site. CNA argued that courts would be reluctant to disturb such a final judgment afterward. In response, the Court essentially said ‘tough sh!t, pals.’ Powell also slapped down the argument that the restrictions placed on CNA’s participation effectively amounted to a denial of intervention (Brennan and Marshall concurred, but did not join this part).

Brennan, joined by Marshall, wrote to point out that in the absence of an immediate appeal, CNA did have the right to seek a writ of mandamus. He also felt the argument that the restrictions on participation effectively denied intervention proved far too much, since even parties with a right of intervention could validly have restrictions placed on their appeals rights. All in all, a very good day – gotta love it when the Court unanimously pwns irritating busybodies.

International Paper Co. v. Ouellette

479 U. S. 481

January 21, 1987

Lake Champlain forms part of the border between New York and Vermont. A New York paper mill pumped waste into the New York side of the lake, but some of the waste flowed into Vermont waters. Good environmentalist nuts that they were, some Vermont citizens brought a nuisance suit in the Vermont Federal District Court. The paper company argued that a nuisance suit which used Vermont law was preempted by the Clean Water Act (CWA).

Powell wrote for a 5-4 majority, which held that the CWA preempted state nuisance suits against pollution, unless the pollution actually originated from the state whose law is used. With some brief textual analysis, the majority dismissed two sections of the CWA which appeared to preserve any state suit addressing pollution. Then Powell concluded that the CWA would be frustrated by suits of non-source states. The elaborate permit system the law set up could be thwarted and nullified if non-source states could force pollutants to comply with higher state law standards. The Court also ruled unanimously that nuisance law in the source states of the pollution could be used, and that such a suit could be filed in the District Court of a non-source state.

Brennan wrote a dissent, which was joined by Marshall and Blackmun. He argued that the only question before the Court was which District Court the Ouellette case could be filed in, and not which type of law must be used in the case. Nonetheless, he concluded that the CWA did not preempt nuisance suits by a non-source state. He showed that the majority had not satisfactorily explained the two aforementioned sections of the law’s text, and that both legislative history and EPA practice seemed to suggest that non-source state suits were permitted. Stevens wrote a dissent joined by Blackmun. Like Brennan, he felt that the Court shouldn’t have answered the question of which type of suit could be filed. Unlike Brennan, he expressed no view on that issue.

As I have said before, I am pretty liberal on justiciability issues, so the arguments of Brennan and Stevens that the majority’s opinion was advisory don’t faze me. But I think Brennan actually does get the better of the preemption debate, though I would like to have more information before I made up my mind on the issue. And as a policy matter rather than a legal matter, I do strongly prefer the Powell approach.