Past As Prologue?

By Richard Frank, Daily Journal

The U.S. Supreme Court's recently-concluded term was an extremely active and momentous one for environmental law and policy. The Supreme Court issued 75 full opinions this past year, and five of them-fully 15% of the justices' docket-were environmental cases.

As the Supreme Court begins its 2009-10 term, the environment remains prominent on the justices' agenda, with another major environmental case set to be argued this fall, and the potential of more being granted review in the coming months. The Roberts Court's past environmental rulings give some indication as to how the justices may decide the currently-pending case, although there is an important distinction between the Supreme Court's recent environmental jurisprudence and the case it has accepted for the upcoming term.

Chief Justice John Roberts has now led the Supreme Court for four years. During that time, the Roberts Court has already placed its indelible mark on environmental policy. Its most influential environmental decisions were handed down in 2006 and 2007: the justices determined with only modest clarity in Rapanos v. United States how far federal regulatory jurisdiction extends under the Clean Water Act over the nation's wetlands and seasonal waterways; and a closely-divided Supreme Court ruled that greenhouse gases are subject to regulation under the Clean Air Act in Massachusetts v. USEPA.

But nothing could have prepared observers for the flurry of environmental cases the Roberts Court decided in its 2008-09 term. In the last year, the justices ruled in Winter v. NRDC that the United States Navy's national security-prompted sonar training exercises off the Southern California coast trump potential harm the Navy's sonar testing might cause whales and other marine mammals; found in Summers v. Earth Island Institute that environmental groups lacked standing to challenge federal timber sales proposed by the United States Forest Service; declared in Entergy v. Riverkeeper that the Environmental Protection Agency had permissibly relied on cost-benefit analysis in setting water pollution control standards under the Clean Water Act; substantially narrowed, in Burlington Northern v. USEPA, the financial liability of both landowners and business interests for clean-up of hazardous waste sites under federal Superfund law; and ruled in Coeur Alaska that mining waste discharges that will contaminate an Alaskan lake should be regulated by the United States Army Corps of Engineers under the "dredge-and-fill" provisions of the federal Clean Water Act, rather than the more stringent water pollution control permit system overseen by USEPA under the same statute.

These five Supreme Court decisions, taken together, demonstrate several important trends. First, environmentalists lost all five cases; this was, on balance, a terrible year for the environment. Second (and conversely), the federal government fared quite well in these decisions, prevailing in four of the five. Third, business interests did even better than federal interests, winning all of the Supreme Court environmental cases last term in which they were involved. Fourth, in all five cases the Supreme Court reversed pro-environment rulings by the U.S. Circuit Courts of Appeals.

A final, related point: the justices' environmental rulings last year underscore the continuing ideological dissonance between the Supreme Court and the Ninth Circuit Court of Appeals: four of the five Supreme Court environmental cases last year came from the Ninth Circuit, with the justices reversing every one. (This is part of a larger, well-publicized trend: as the Daily Journal has reported, overall last term the Supreme Court disagreed with the Ninth Circuit in 14 of 16 cases-an 88% reversal rate.)

The Roberts Court's interest in environmental law shows no signs of abating. The justices have filled about half of their docket for the term beginning this fall, and the environment is already prominently featured. Currently pending is another high-profile environmental case, with the potential for broad ramifications in environmental law and policy.

Stop the Beach Renourishment v. Florida Department of Environmental Protection, is a fascinating property rights case from Florida. That state's coastline, which like California's is both a stunning ecological resources and a huge driver of the regional economy, is routinely buffeted by hurricanes, tropical storms and the like. Those events often cause major destruction of coastal property, scour state beaches and fundamentally alter Florida's coastal environments. The Florida Legislature enacted legislation to create a taxpayer-funded program to restoreand "renourish"Florida beaches, both to protect upland coastal property and to preserve the state's expansive beaches, upon which Florida's tourist economy largely depends.

Traditional property law in Florida and most other states-including California-provides that coastal boundaries shift as a result of slow and imperceptible changes such as erosion and accretion, while remaining unchanged by sudden changes triggered by human activity or natural disaster. As a precondition to the publicly-funded beach renourishment projects authorized under the Florida statute, state officials may depart from those common law principles and set a fixed boundary line between privately-owned upland property and publicly-owned tide and submerged lands. The Florida statute also contains protections for upland owners-e.g., that the government cannot build structures on the public beaches that would impede upland owners' coastal views, and that those owners' continued, unobstructed access to the water is preserved.

Florida officials announced plans to undertake a beach renourishment project in response to coastal damage from tropical storms and to fix the coastal boundary as authorized under the Florida statute. Upland property owners sued, claiming that the statute deprived them of valuable property rights without compensation, in violation of the Takings Clause of the U.S. Constitution's Fifth Amendment. The Florida Supreme Court rejected those arguments, finding that the state Legislature did not violate the property owners' constitutional rights; it concluded that the statute's modification to state boundary law was incremental rather than radical in nature.

The homeowners petitioned the U.S. Supreme Court for review, and in late June the justices agreed to hear the case. But now, the Florida homeowners have a revised legal argument, they now claim the Florida state court itself committed a "judicial taking" of their property by announcing what the homeowners contend is a sudden and unanticipated change to Florida state property law that operates to their detriment.

The whole notion of "judicial takings" has never gained much traction in the courts. If the U.S. Supreme Court embraces the notion in the Florida case, it would doubtless expand considerably the volume of property rights litigation brought under the Takings Clause. Creation of a judicial takings doctrine also presents some very real questions about federalism and states rights, since future cases-like Stop the Beach-would doubtless arise in the context of federal courts being asked to re-examine, upset and require compensation for earlier state court judgments and decrees.

The Florida case also raises some profound issues of environmental policy. Climate scientists advise that global warming trends will make hurricanes and related natural disasters, such as those that motivated the Florida statute at issue, more intense and destructive. If government officials are unable to prevent and respond to these cataclysmic events with adaptive strategies such as beach renourishment programs due to fear of takings liability, the public interest will suffer. So too will those who live, work and play in our coastal environments.

The pending Stop the Beach case demonstrates that the Roberts Court's interest in environmental law and policy has not waned. The Florida case presents a renewed opportunity for the Supreme Court to shape its environmental legacy.

At the same time, Stop the Beach presents one important departure from the Roberts Court's previous environmental jurisprudence: with the exception of two standing-to-sue rulings in Massachusetts v. USEPA and Summers v. Earth Island Institute, all of the Roberts Court's environmental decisions have involved the meat-and-potatoes issues of environmental law: federal statutory interpretation, judicial review of administrative action, federal regulatory policy, etc. With Stop the Beach, the justices return to the constitutional law focus that was a hallmark of the Rehnquist Court. From 1978 through the end of Chief Justice William Rehnquist's tenure in 2005, for example, the Supreme Court decided at least one property rights case under Fifth Amendment Takings Clause principles each year. Stop the Beach provides the Roberts Court with its first opportunity to place its own imprimatur on this critically-important area of modern environmental and constitutional law.

Does the Supreme Court's newfound interest in federal constitutional principles, as they apply to environmental law and policy, represent a trend for the Roberts Court, or simply an aberration? And will environmental interests continue to receive as little support from the justices as they did last term? Stay tuned.

Richard M. Frank is Executive Director of the Center for Law, Energy & the Environment at the University of California, Berkeley School of Law.