Skip to content Skip to main menu
  • News
  • Events
  • Law Library
  • Giving
  • Alumni
  • Quicklinks

    • Academic Calendar
    • bCourses Overview
    • bCourses Link
    • Schedule of Classes
    • Academic Rules
    • View Evaluations
    • UC Berkeley Law Logo (Identity)
    • RoloLaw
    • Event, Catering and Food Policy
    • Emergency Info
    • Resource Hub for Faculty & Staff
    • COVID-19 Information

    Support

    • Remote Teaching Resources
    • Computing Support
    • Faculty Support Unit
    • Berkeley Law Events
    • Business Services
    • Faculty Services (Library)
    • Human Resources & Academic Personnel
    • Instructional Technology
    • Phones
    • Room Reservations
    • Building Services
    • Resources to Respond to Sexual Harassment
  • Quicklinks

    • Academic Calendar
    • b-Line
    • Berkeley Law Facebook
    • Financial Aid
    • Faculty Profiles
    • Schedule of Classes
    • Teaching Evaluations
    • Final Exam Review Session Schedule
    • Exams
    • Final Exam Schedule
    • CalCentral
    • COVID-19 Information
    • Event, Catering and Food Policy
    • Emergency Info
    • Resource Hub for Students

    For Students

    • Dean of Students Office
    • Academic Policies
    • Academic Skills Program
    • Student Organizations
    • Student Journals
    • Commencement
    • Bookstore
    • Wellness at Berkeley Law
    • Registrar
    • University Health Services
    • Resources to Respond to Sexual Harassment
    • Inclusive Restrooms
  • Search for People at Berkeley Law

UC Berkeley Law
    • Academics Home
    • Areas of Study
      • Criminal Justice
      • Environment and Energy
      • Human Rights
      • Social Justice and Public Interest
        • Curriculum
          • J.D. Path
          • LL.M. Path
        • Social Justice+Public Interest Community at Berkeley Law
          • Public Interest and Pro Bono Graduation
      • Business and Start-ups
        • Business Law Curriculum
        • Business Law Faculty
      • Law and Technology
        • Student Activities
        • Law and Tech Curriculum
        • Law and Tech Faculty
      • Environmental Law
      • International and Comparative Law
        • Centers, Clinics, and Programs
        • Faculty
        • Student Activities
      • Constitutional and Regulatory
      • Law and Economics
        • Faculty
        • Prospective Students
        • Visiting Scholars
        • Law and Economics Fellowship
    • J.D. Program
      • First-Year Curriculum
      • Concurrent Degree Programs
      • Combined Degree Programs
      • Berkeley-Harvard Degree Programs
    • LL.M. Programs
      • Current Academic Calendars
      • LL.M. Executive Track
        • Past LL.M. Executive Track Academic Calendars
          • 2023 LL.M. Executive Track Academic Calendar
          • 2022 LL.M. Executive Track Academic Calendar
          • 2021 LL.M. Executive Track Academic Calendar
          • 2020 LL.M. Executive Track Academic Calendar
          • 2019 LL.M. Executive Track Academic Calendar
          • 2018 LL.M. Executive Track Academic Calendar
        • LL.M. Executive Track Courses
      • LL.M. Traditional Track
        • Current Academic Calendars
      • LL.M. Courses
      • Certificates of Specialization
      • Application & Admission
        • Steps to Apply
        • Application Forms & Deadlines
        • Eligibility & Admission Standards
        • Application Checklist
        • Admissions Policies
        • Check Application Status
      • Tuition & Financial Aid
        • Cost of Attendance
        • Scholarships
        • Ways to Fund Your Studies
          • Financial Aid Checklist for LL.M./J.S.D. Students
        • FAQ Financial Aid
      • Admitted Students
        • Visas
        • Housing Resources
        • Cancellation & Refund Policies
      • Join an Event & Connect with LL.M. Staff
        • Recruiting and Informational Events
        • Visit Us!
        • Contact Us
      • Meet Our Students
        • LL.M. Thesis Track Student Profiles
      • Meet Our Partners
      • Questions? Start Here
    • Doctoral Programs
      • J.S.D. Program
        • Application & Admission
          • Steps to Apply
          • Application Form & Deadline
          • Eligibility & Admission Standards
          • Application Checklist
          • Check Application Status
        • J.S.D. Tuition & Financial Aid
          • Cost of Attendance for JSD
          • Robbins J.S.D. Fellowship
        • J.S.D. Student Profiles
          • Zehra Betul Ayranci
          • Ella Corren
          • Silvia Fregoni
          • George Lambeth Vicent
          • Sylvia Si-Wei Lu
          • Natsuda Rattamanee
          • Youngmin Seo
          • Abdullah Alkayat Alazemi ’21
          • Mehtab Khan ’21
          • Maximilien Zahnd ’21
          • Shao-Man Lee ’20
          • Alvaro Pereira ’20
        • Contact Us
      • Ph.D. Program – Jurisprudence and Social Policy (JSP)
        • Events Calendar »
    • Certificates & Honors
    • Executive Education
    • Schedule of Classes
      • One Year Curriculum Planner
    • Current Academic Calendars
      • 2024-2025 Academic Calendar
      • 2025 LL.M. Executive Track Calendar
      • Past Academic Calendars
        • 2023-2024 Academic Calendar
        • 2022-2023 Academic Calendar
        • 2021-2022 Academic Calendar
        • 2020-2021 Academic Calendar
        • 2019-2020 Academic Calendar
        • 2018-2019 Academic Calendar
        • 2017-2018 Academic Calendar
        • 2016-2017 Academic Calendar
        • 2015-2016 Academic Calendar
        • 2014-2015 Academic Calendar
        • 2013-2014 Academic Calendar
        • 2012-2013 Academic Calendar
        • 2011-2012 Academic Calendar
        • 2010-2011 Academic Calendar
        • 2009-2010 Academic Calendar
        • 2008-2009 Academic Calendar
      • Future Academic Calendars
        • 2025-2026 Academic Calendar
    • Registrar
      • Order of the Coif and Dean’s List
      • Academic Rules
        • Supplemental Academic Rules for Traditional Track LL.M. Students
        • Academic Honor Code
        • Academic Rules Petition
        • Academic Rule 3.06 – applies to the Class of 2010 and before
        • Credit Hours
      • Registration
      • Transcripts
      • Verification of Attendance
      • Registrar’s Forms
      • Ordering a Diploma »
      • J.D. Academic Guidance
        • 3L Requirements FAQ
        • 3L Degree Worksheet
      • Registrar’s Student FAQ
      • Bar Information
        • State Bar Swearing-In Ceremony Information
          • State Bar Swearing-In Ceremony – Who’s Coming
    • Admissions Home
    • J.D. Admissions
      • Applying for the J.D. Degree
        • Ready to Apply
        • After You’ve Applied
        • Transfer & Visiting Student Applicants
        • Pre-Law Preparatory Academy
        • FAQs
      • Entering Class Profile
      • Connect with Admissions
        • Plan Your Visit
        • Virtual Engagement
        • Recruitment Events
        • Law Building Tour
        • View the Prospectus
        • Contact LL.M. Admissions
        • Contact J.S.P. Admissions
      • Meet Our Students
      • Studying at Berkeley Law
      • Living in the Bay Area
      • Concurrent & Combined Degree Programs
      • Faculty Admissions Policy
      • Financial Aid
        • Prospective and Entering Students
          • Entering Student Registration & Financial Aid Information
          • Financial Aid for International J.D. Students
          • Financial Aid for Undocumented J.D. Students
          • Legal Resident Information
        • Types of Aid
          • Scholarships
          • Loans
          • Work-Study
          • Native American Opportunity Plan
          • Financial Aid for Active Military and Veteran J.D. Students
          • Resources For Bar Related Expenses
        • How to Apply
          • Financial Aid Checklist & Timeline For Entering Students
          • Financial Aid Checklist & Timeline For Continuing Students
          • Financial Aid Checklist & Timeline For Incoming Transfer Students
        • Tuition & Fees
          • Cost of Attendance Adjustments
        • Forms
        • PDST-Increase Offset Awards (PIOAs)
        • Loan Repayment Assistance Program (LRAP)
          • LRAP Eligibility Guidelines
          • LRAP Eligibility Calculator
          • How to Apply for LRAP
          • LRAP Forms
          • Public Service Loan Forgiveness (PSLF)
          • News & Updates
          • LRAP & PSLF Testimonials
          • LRAP FAQs
        • Satisfactory Academic Progress
        • Withdrawals and Financial Aid
        • Info Sessions & Presentations
        • Financial Literacy
        • Financial Aid – J.D. Concurrent Degree Programs
        • FAQ & Glossary
        • Requesting a Financial Aid Award for a Student
        • About Our Team
      • Outreach Partnerships
      • Admitted Students – First-Year »
      • Admitted Students – Transfer & Visitor Status »
      • For Current Berkeley Law Students
      • Admissions Policies
      • ABA Required Disclosures »
    • LL.M. Admissions
    • J.S.D. Admissions
    • Ph.D. (JSP) Admissions
    • Visiting Scholar and Visiting Student Researcher Admissions
    • Faculty & Research Home
    • Faculty Experts by Topic
    • Faculty Profiles
    • Deans Emeritus Lecturers
    • Recent Faculty Scholarship
    • Awards and Honors
    • Faculty on Social Media
    • Faculty in the News
    • Featured Research
    • Centers, Institutes & Initiatives
    • Experiential Home
    • Clinical Program
      • Apply to the Clinics
      • Death Penalty Clinic
        • About the Clinic
          • Faculty and Staff
          • Alumni
        • Clinic News
        • Projects and Cases
          • Death Penalty Clinic Amicus Curiae Briefs
          • Guess Who’s Coming to Jury Duty?: How the Failure to Collect Juror Demographic Data Contributes to Whitewashing the Jury Box
          • Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors
        • Information for Students
        • Resources and Publications
          • Capital Defense Internships and Jobs
        • Donate to the Clinic
      • East Bay Community Law Center
      • Environmental Law Clinic
        • About the Clinic
        • Information for Students
        • Newsletters
        • Clinic News
        • Student Voices
        • Faculty and Staff
        • Alumni
        • Donate to the Clinic
        • Lawsuit Filed Over Radioactive Waste at Hunters Point Naval Shipyard
      • Global Rights Innovation Lab Clinic
        • About Us
        • Information for Students
      • Human Rights Clinic
        • About the Clinic
          • Alumni
          • Faculty and Staff
        • Clinic News
        • Projects and Cases
          • Featured Reports and Projects
          • Accountability and Transitional Justice
          • Promoting Human Rights in the United States
          • A Rights-Based Approach to Combating Poverty: Economic, Social & Cultural Rights
          • Counter-Terrorism and Human Rights
        • Resources and Publications by Focal Area
        • Information for Students
          • Student Self-Reflection
        • Donate to the Clinic
      • Policy Advocacy Clinic
        • About Us
        • People
          • Georgia Valentine
        • Clinic News
        • Resources and Publications
        • Juvenile Fees
          • COVID-19 Action on Juvenile Fees
          • Juvenile Fee Abolition in California
        • Adult Fees
          • Ending Unjust and Ineffective Criminal Fees in California
        • Students
        • Donate to the Clinic
      • Samuelson Law, Technology & Public Policy Clinic
        • About
          • Faculty and Staff
          • Clinic Alumni
          • Partners
        • Clinic News
        • Our Work
        • Information for Students
        • Access Reports
      • Social Enterprise Clinic
        • About Us
        • Information for Students
        • Our Work
      • Clinical Program Annual Report
        • Annual Report Archive
      • The Brian M. Sax Prize for Excellence in Clinical Advocacy
        • Brian M. Sax
        • Recipients
    • Pro Bono Program
      • The Pro Bono Pledge
        • Definition of Pro Bono
      • Log Your Pro Bono Hours
        • Definition of Pro Bono
      • Student-Initiated Legal Services Projects (SLPS)
        • How to Apply
        • Current Student-Initiated Legal Services Projects
          • Animal Law and Advocacy
          • Arts and Innovation Representation
          • Berkeley Immigration Group
          • Berkeley Law Anti-Trafficking Project
          • Berkeley Law and Organizing Collective
          • Business Community Legal Advice Workshop
          • California Asylum Representation Clinic
          • Clean Energy Leaders In Law
          • Climate Migration & Displacement Project
          • Consumer Protection Public Policy Order
          • Contra Costa Reentry Project
          • Digital Rights Project
          • Disability Rights Project
          • Drug Policy, Education, and Decriminalization Project
          • East Bay Dreamers Project
          • Environmental Conservation Outreach
          • Family Defense Project
          • Food Justice Project
          • Foster Education Project
          • Free The Land Project
          • Gun Violence Prevention Project
          • Homelessness Service Project
          • International Human Rights Workshop
          • International Refugee Assistance Project
          • La Alianza Workers’ and Tenants’ Rights Clinic
          • Legal Automation Workshop
          • Legal Obstacles Veterans Encounter
          • Name and Gender Change Workshop
          • Native American Legal Assistance Project
          • Palestine Advocacy Legal Assistance Project
          • Police Review Project
          • Political and Election Empowerment Project
          • Post-Conviction Advocacy Project
          • Queer Justice Project
          • Reentry Advocacy Project
          • Reproductive Justice Project
          • Startup Law Initiative
          • Survivor Advocacy Project
          • Tenants’ Rights Workshop
          • Workers’ Rights Clinic
          • Youth Advocacy Project
        • How to Start a New SLP
        • Inactive Student-Initiated Legal Services Projects
          • AI Legal Workshop
          • Berkeley Abolitionist Lawyering Project
          • Berkeley Immigration Law Clinic
          • Berkeley Students in Support of Arts and Innovation
          • Civil Rights Outreach Project (CROP)
          • Community Restorative Justice Project
          • Community Defense Project
          • Juvenile Hall Outreach
          • Karuk-Berkeley Collaborative Legal
          • Local Economies and Entrepreneurship Project
          • Prisoner Advocacy Network
          • Wage Justice Clinic
          • Workers’ Rights Disability Law Clinic
      • Berkeley Law Alternative Service Trips (BLAST)
        • Current Berkeley Law Alternative Service Trips (BLAST)
          • Alaska
          • Atlanta
          • Central Valley
          • Hawai’i
          • Kentucky
          • Mississippi
          • Montana
          • U.S./Mexico Border
        • Inactive Berkeley Law Alternative Service Trips
          • Los Angeles
          • South Texas
          • Tijuana
      • Call for Necessary Engagement in Community & Timely Response (CNECT)
        • Berkeley Law Afghanistan Project
        • Current & Past CNECT Partners
          • Hub for Equity in Administrative Representation
          • Racial Justice Legal Research Bank Project
        • CNECT News
      • Independent Projects
      • Opportunities for LL.M. Students
      • Supervising Attorneys
      • Pro Bono Spotlights
        • IRAP Project
        • David Nahmias
        • Angélica César & Mackenzie Gettel
        • Skylar Cushing
        • Addie Gilson & Eli McClintock-Shapiro
        • Tori Porell, Supervising Attorney FosterEd
        • Drug Policy, Education, and Decriminalization (DECrim) Project
        • Caity Lynch, JD ’25
        • Berkeley Immigration Group SLP Supervising Attorneys
        • Family Defense Project
        • Gabby Cirelli, JD ’24
        • Brooke D’Amore Bradley, JD ’23
        • Taiya Tkachuk, ’24
        • Emily Chuah ’24
        • Malak Afaneh ’24
        • KeAndra Hollis ’24
        • Maripau Paz ’24
        • Lucero Cordova ’23
        • Bharti Tyagi ’21
        • Benji Martinez ’23
        • Will Morrow ’23
        • Stephanie Clemente ’23
        • Francesco Arreaga ’21
        • Armbien Sabillo ’21
        • Kelsey Peden ’21
        • Jennifer Sherman ‘22
        • Professor Khiara M. Bridges
        • Professor Kristen Holmquist
      • Awards
      • Law Firm Pro Bono Programs
      • New York Bar Pro Bono Requirement
      • For Public Interest & Pro Bono Providers
    • Professional Skills Program
      • Legal Research, Analysis, and Writing Program
      • Elective Skills Courses
    • Advocacy Competitions Program
      • Eligibility by Class Year
      • Internal Competitions
        • McBaine Honors Moot Court
          • 2025 McBaine Competition
          • McBaine Honors Moot Court Competition 2024 Photo Essay
          • Previous Years’ McBaine Competitions
          • Past McBaine Winners
          • McBaine — Frequently Asked Questions
          • Helpful Materials
        • Halloum Negotiation Competition (Spring)
          • Competition FAQ
          • Previous Winners
        • Halloum Business Competition (Fall)
        • Bales Trial Competition
      • External Competitions (BOA)
        • BOA Tryouts
        • Alternative Dispute Resolution (ADR) Team
        • Moot Court Team
        • Tech & IP Team
        • Trial Team
      • Competition Videos
    • Field Placement Program
      • Testimonials
      • How to Apply
      • Judicial Externships
      • Civil Field Placements
      • Criminal Field Placements
      • Away Field Placements
        • The Hague
        • INHR Program
        • UCDC Law Program
      • For Supervisors and Host Organizations
        • BACE: Bay Area Consortium on Externships
      • Administrative Rules
      • Frequently Asked Questions
      • Field Placement Program Evaluation Database
    • Startup@BerkeleyLaw
      • Law Students
      • Entrepreneurs
        • How to Start a Startup @ Cal
        • FORM+FUND
        • Startup Law Initiative
      • Investors
    • Veterans Law Practicum
    • Ninth Circuit Practicum
    • Domestic Violence & Gender-Based Violence Practicum
      • About the Director
      • How to Apply
      • History & Impact
    • Careers Home
    • For J.D. Students
      • CDO Email Archive
      • Appointments and Drop-In Hours
      • Private Sector Careers
        • Explore Private Sector Careers
        • How to Apply to Private Sector Jobs
          • 2L Summer Private Sector Job Search
          • OCI Alternatives
      • Public Interest Careers
        • Explore Public Interest
          • Public Interest/Public Sector Employer Events & Resources
        • Find Public Interest Jobs
          • PI/PS Interviewing Resources
          • Using Interview Programs to Land Your 1L Summer Job
          • Your 2L and 3L PIPS Job Search
          • Post-Graduate Public Interest Fellowships
          • PI/PS Job Search Videos
        • Finance Your Public Interest Career
          • Summer Funding for PI/PS Internships & Judicial Externships
          • Berkeley Law Bridge and Public Interest Fellowships
      • Public Sector Careers
        • Federal Government Careers
        • State & Local Government Careers (incl. CA)
        • Careers in Policy/Politics
      • Judicial Clerkships
        • Application Instructions & Resources
        • Alumni Clerkship & Judicial Staff Directory
        • Clerkship Yearbooks
        • Clerkship and Interview Evaluations
        • Videos of Clerkship Programs
      • Judicial Externships
      • OCI Programs
      • Alternative Careers
    • For LL.M. Students
    • For Employers
      • Berkeley Law Recruiting Policies
      • Employer Resources for Virtual Internship Programs
      • Non Discrimination and Non Harassment Policies
      • Grading Policy
      • OCI Programs
      • Posting Job Listings
      • Reaching Berkeley Law J.D. Students
    • PSJD »
    • For Alumni
      • For Recent Graduate Job-Seekers
      • Enrichment Opportunities for Recent Grads
      • Executive Education
      • CDO Online Resources
      • Help the CDO
    • Careers in Law Teaching
      • Alumni Faculty Directory
      • Videos of Academic Placement Committee Programs
    • About CDO
      • CDO Staff News
    • Career Resource Library
    • Employment Outcomes
      • Employment Statistics
      • Judicial Clerkship Placement Statistics
  1. Home
  2. Articles
  3. News
  4. Op-Eds – ARCHIVAL
  5. Past As Prologue?

Past As Prologue?

  • Share article on Facebook
  • Share article on Twitter
  • Share article on Bluesky
  • Share article on LinkedIn
  • Email article

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.

09/17/2009

News

  • Transcript Magazine
    • Transcript Archive
      • Transcript Spring 2021 Online Edition
      • Transcript Fall 2020 Online Edition
      • Transcript Spring 2020 Online Edition
      • Transcript Fall 2019 Online Edition
      • Transcript Spring 2019 Online Edition
      • Transcript Fall 2018 Online Edition
      • Transcript Spring 2018 Online Edition
      • Transcript 2017 Online Edition
      • Transcript 2016 Online Edition
  • Podcasts
  • On Display
  • Media Highlights
  • News Archive
    • 2025 Archive
    • 2024 Archive
    • 2023 Archive
    • 2022 Archive
    • 2021 Archive
    • 2020 Archive
    • 2019 Archive
    • 2018 Archive
    • 2017 Archive
    • 2016 Archive
    • 2015 Archive
    • 2014 Archive
    • 2013 Archive
    • 2012 Archive
    • 2011 Archive
    • 2010 Archive
    • 2009 Archive
    • 2008 Archive
    • 2007 Archive
    • 2006 Archive
    • 2005 Archive
    • News Briefs
    • Alumni Newsletter
  • Trailblazing Women
  • Social Media
  • Communications Office
    • Media Release Form
    • UC Berkeley Law Logo (Identity)
      • Ordering Printed Supplies
  • Law School Images »
  • Twitter
  • Youtube
  • Instagram
  • Flickr
  • Facebook
  • LinkedIn
  • TikTok
  • About
  • Getting Here
  • Contact Us
  • Job Openings
  • ABA Required Disclosures
  • Feedback
  • For Employers
  • Accessibility
  • Relay 711
  • Nondiscrimination
  • Privacy Policy
  • UC Berkeley

© 2025 UC Regents, UC Berkeley School of Law, All Rights Reserved.