Supreme Court ‘pre-emption’ cases cast shadow over enviro regs
Posted on October 8th, 2007By Dan Berman
Greenwire: The most important environmental cases the Supreme Court will address this fall are not about the environment.
At issue are at least two “pre-emption” cases in which a federal law conflicts with or contradicts a state law.
Pre-emption cases on all fronts have become more important in recent years as states have begun taking the lead on environmental regulations. California, for example, is leading 11 states in bids to regulate motor vehicles’ greenhouse gas emissions — an effort being opposed in the courts and on Capitol Hill by industry and the Bush administration.
“It tends to play out most frequently in the environmental arena because California and the other states have been proactive in the face of federal inaction,” said Richard Frank, executive director of the California Center for Environmental Law and Policy at the University of California-Berkeley. “What’s interesting to me is the federal government’s position that even in the case of federal inaction that state regulatory efforts are pre-empted.”
Pre-emption, Frank added, is “one of the biggest principles the court will be addressing in future years.”
Said Richard Lazarus, director of the Supreme Court Institute at the Georgetown University Law Center: “Whatever the court says about that is going to be relevant to the same kinds of issues we’re seeing more and more in federal environmental law. The states are often picking up the gap, and they’re being met by federal pre-emption arguments.”
The Supreme Court has two pre-emption cases on its fall docket. Riegel v. Medtronic asks whether federal law pre-empts a state lawsuit seeking damages for medical injuries from a burst catheter. Two lower courts sided with the company.
Another, Rowe v. New Hampshire Motor Transport Association, asks whether the 1994 authorization bill for the Federal Aviation Administration prevents states — Maine, in this case — from regulating the shipment of tobacco and other dangerous substances.
While pre-emption cases have long been a staple of the Supreme Court docket, legal experts will be watching closely now to see the court’s direction under Chief Justice John Roberts, now starting his third term.
If the court takes a strong stand against pre-emption because it is prejudicial against the states, it would set an important standard, said Mark Levy, an attorney at Kilpatrick Stockton and former deputy attorney general in the Clinton administration.
“Pre-emption cases do turn on their specific statures and regulations, at the same time there are general principles and trends that apply across statues and across industries,” Levy said.
The High Court offered a possible preview of how it might address such matters last term. In Watters v. Wachovia Bank, the justices ruled 5 to 3 that a Michigan consumer law is pre-empted by federal banking regulations, with Roberts joining the dissent.
Environmental cases
The Supreme Court’s spring term seemed unusually packed with environmental cases. The justices addressed global warming regulation, endangered species protection, toxic waste dump cleanups and Western public lands management.
But environmental cases are few this term.
The lack of cases dealing with environmental law should not be seen as a sign the Roberts court won’t be involved, experts say.
“The Roberts court seems to be more intellectually interested in environmental cases than was the Rehnquist court,” Frank said. “The Rehnquist court didn’t express a strong interest in the meat and potatoes, the nuts and bolts of environmental law,” such as regulatory and statutory issues.
The trend began during Roberts’ first full year, with the Rapanos v. U.S. case involving the extent of federal regulatory reach under Section 404 of the Clean Water Act, and continued with major cases last term including Massachusetts v. EPA, Environmental Defense v. Duke, U.S. v. Atlantic Research Corp. and NAHB v. Defenders of Wildlife.
“There were at least four decisions by the court in important cases where the court was addressing significant legal and policy issues,” said Jon Cannon, director of the University of Virginia’s environmental and land-use law program.
“A criticism of the court in the past has been that the court has had a poor selection of environmental cases” that were not significant from a policy standpoint, Cannon added.
The court’s docket as a whole is declining to a slowdown in congressional action, short of appropriations riders or emergency laws such as the PATRIOT Act, Lazarus noted.
The most notable case last term was April’s Massachusetts v. EPA decision — concerning U.S. EPA’s power to regulate greenhouse gases under the Clean Air Act. It was notable not only that the justices ruled that EPA had that power, but because Associate Justice Anthony Kennedy wrote the majority opinion in the 5-4 case.
Appointed in 1988 by President Reagan, Kennedy is now seen as the key swing vote on the court, Cannon said. That may be good news, he said, for environmentalists or states who want to challenge the federal government.
“The court seems to be sensing and responding to environmental injuries as injuries with particular characteristics, particularly the concept of interconnectedness and systemic harm,” Cannon said. “Kennedy seems to get that, and therefore his swing vote is significant in terms of creating a potential majority in recognizing that environmental paradigm.”
John Echeverria, executive director of the Georgetown Environmental Law & Policy Institute, agreed. “The court said a great deal about the significance of global warming as an issue,” in Massachusetts v. EPA, he said. “The court addressed it as an environmental case as much as a legal case.”
Takings cases
The Roberts court also figures to wrestle with regulatory takings cases.
The court is expected to decide soon whether to reconsider a 1980s precedent that says citizens cannot bring a takings case to a federal court until there is a final decision by a state agency or a state court.
If accepted, an Illinois case, Rockstead v. City of Crystal Lake, could be used to overturn the 1985 Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City decision. In Rockstead, the 7th U.S. District Court of Appeals affirmed the district court’s dismissal of an inverse condemnation claim based on Crystal Lake’s construction of a pipeline caused flooding of the plantiiff’s land.
“That was a huge body blow to the property rights groups because it meant you couldn’t [immediately] go to federal court,” Echeverria said.
The late Chief Justice William Rehnquist, in a 2005 concurring opinion in the San Remo Hotel v. County of San Francisco takings case, suggested the court review its 1985 standard.
A second takings case, Sieber v. State of Oregon, involves a challenge to logging restrictions in state forestry law and the question of whether a just compensation includes the effect of government regulation on the value timber taken from a tract or the value of the entire tract of real estate.
“A more conservative court could be good for the environment,” Echeverria said. “A strong adherence to the language and an original understanding supports a very liberal position on taking.”