Constitutional Law

Supreme Court Playing Host to Environmental Law Developments

The Solicitor General’s office has reversed course from the Bush administration’s environmental policy in front of the Supreme Court. Under the Bush administration, the government appealed its loss in Environmental Protection Agency v. New Jersey, which “nullified the agency's decision not to regulate mercury emissions from power plants under the Clean Air Act.” Monday, acting Solicitor General Edwin Kneedler filed a motion to dismiss the appeal, stating the “EPA has now decided ‘to develop appropriate standards to regulate power-plant emissions’ as directed by the circuit opinion.”

Former SG Paul Clement, cautioned against reversing positions so abruptly in cases pending before the Supreme Court. Clement stated that "Elections certainly have consequences, but there is a right way, in my view, and a wrong way to alter the position in these cases."

In another piece of environmental news, the Supreme Court will hear oral argument in two consolidated Superfund cases February 24. The justices will assess whether liabilities for clean-up costs are unfair. The Court granted review in Burlington Northern-Santa Fe Railway Co. v. U.S. and California, to review a Ninth Circuit finding that companies that “arranged” for the disposal of waste can be held liable for the clean-up. The Court consolidated that with Shell Oil v. U.S. and California, another Ninth Circuit decision which held that defendants can be found jointly and severally liable for clean-up costs, even if other defendants have since gone out of business.

Petitioners hold that their large liability is unfair, given the attenuated relationship they have with the clean-up sites, while the government holds that their position is consistent with congressional purpose behind Superfund.

H/T: How Appealing

Full post as published by ACS Blog on February 13, 2009 (boomark / email).