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Posted April 17, 2007

Supreme Court Docket Heavy on Environmental, Business Cases, Solicitor General Says

Paul Clement
Paul Clement

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Emily Williams

A look from mid-term revealed that the Supreme Court docket was full of key environmental and business cases, U.S. Solicitor General Paul Clement observed at a Federalist Society talk in Caplin Pavilion April 11. But it is still too early to decide what the major themes of the court year will be, because arguments for the last session of the court begin April 16, he added. This term is the first in which all the justices of the Roberts Court are serving.

Clement is the nation’s 43rd solicitor general. The Office of the Solicitor General conducts all litigation on behalf of the United States in the Supreme Court and supervises the handling of litigation in the federal appellate courts.

“This will be a term that will be remembered as having some very important environmental cases,” Clement said. “I think that the business docket of the court will also be a significant contributor to the importance of the decisions this term.” The jury is still out on whether this is coincidence or whether Chief Justice John Roberts’s background in corporate law is influencing the docket.

The Supreme Court has only issued 22 opinions so far this year. Last year at this time the court had already issued 35 opinions, he explained. “I think it’s fair to say the court is a little bit behind the pace where they would normally be at this time in a court term.”

Because of a cancellation in December and days in February and March where the court only heard one argument a day, the court is now trying to make up for lost time. There are 16 cases scheduled for April, which means the Court must listen to additional arguments in the afternoon, an unprecedented practice in recent memory, Clement said.

“What this all means is that this term, even more than most, is going to be one where a lot of the important decisions come by at the end of the term.”

The most significant case of the term so far has been Massachusetts v. Environmental Protection Agency, a case involving substantive environmental law. “It may be even more important as a matter of Article III standing law,” he said. The case brought up three important questions: whether anyone had standing to challenge the EPA’s decision not to regulate greenhouse gases, whether the EPA has the authority to regulate greenhouse gases, and if the EPA did have the authority to regulate greenhouse gases, do they have the discretion not to exercise their authority in this context? Ultimately, the court found that Massachusetts had standing to challenge the EPA’s failure to regulate greenhouse gas emissions.

“The court effectively suggested that there would be special principles of standing that would make it easier for a state to establish standing than it would be for a private litigant. This is an interesting development largely because it’s unprecedented.  I think the majority opinion acknowledges the fact that it really didn’t have much in the way of precedent to cite for this notion that states have a better claim to Article III standing than private litigants, and of course the chief justice in dissent was quite adamant that this was a novel development—one that did not have an adequate basis in Article III standing principles.”

Whatever the implications for the future, the closely divided 5-4 ruling has created a different set of standing principles for state governments, he explained. On the merits, the court found that the EPA had the statutory authority to regulate greenhouse gases and the reasons the EPA gave for failing to do so were inadequate. “The Court did stop short of specifically saying that the EPA must regulate in this area,” he said.

In another important decision, Environmental Defense v. Duke Energy Corp, justices ruled against the energy company, which had made numerous modifications to its coal-fired plants without a permit, allowing them to run the plants for more hours a day, which increased total emissions but not hourly emissions. The primary question the case raised was whether or not the same word—“modification”—in two closely related statutory provisions could be interpreted differently in respective contexts. Prior to the Supreme Court’s decision, the Fourth Circuit decided that the word must be interpreted the same way in both contexts. The Supreme Court, in a nearly unanimous decision, reversed the Fourth Circuit’s ruling. “[The Court] said that there was enough flexibility. An agency can construe a term to have different meanings as long as both constructions were reasonable in light of the statutory structure,” he said.

Two other environmental cases will be argued in the coming weeks. The National Association of Home Builders v. Defenders of Wildlife case will seek to reconcile statutes in the Clean Water Act and the Endangered Species Act. United States v. Atlantic Research will deal with how the costs of recovering Superfund sites will be distributed among responsible parties.
 
Philip Morris USA v. Williams, a case that dealt with punitive damages awarded in a wrongful death lawsuit, has received the most attention this term, Clement said. The Supreme Court’s 5-4 decision invalidated an $80 million punitive damages award that was issued by the state courts in Oregon to the family of a lung cancer victim.

“You had a tobacco context where there was a very strong argument that the conduct [of Philip Morris] was quite reprehensible but on the other the ratio of punitive damages to compensatory damages was quite significant,” he said. “What the court held is that it is constitutional for the jury to take into account the injuries to third parties in determining how reprehensible the conduct is, but the jury cannot take injuries to third parties into account strictly in punishing the defendant.” The distinction is fine one and “if you had a little trouble following that, you’re probably not alone.”  More importantly, Clement cited, was the fact that Justices Samuel Alito and Roberts voted in the majority in this case. “They don’t always split where you think they will,” Clement said.

The Court heard an “extraordinarily large” number of antitrust cases this term, he added. Bell Atlantic v. Twombly, which has not yet been decided, has the potential to be one of the most significant antitrust cases this term. The outcome of the case will determine what one must plead in an antitrust case to get past the motion-to-dismiss stage.

“The fact that the court took four antitrust cases, a lot more than they have for a while, is very interesting,” he said. Of the three cases that were taken last year, there were 27 votes for the defendants and two for the plaintiffs. The 9-0 vote for the defendant in the sole decided case this term and the fact that the others were granted on the defendant’s petition for certiorari suggests that the court may be interested in reversing lower courts’ decisions, Clement explained.

Patent cases, typically heard by the Federal Circuit, also have come into favor at the Supreme Court. “I think over the last couple of years they’ve gotten more interested in this area and I think they’ve also been somewhat skeptical of the approach that the Federal Circuit has taken on some of these issues,” he said.

Key decisions are still forthcoming in Wisconsin Right to Life, Inc. v. Federal Election Commission, a First Amendment case involving campaign finance laws, and a pair of voluntary school desegregation cases heard together, Community Schools v. Seattle School District #1 and Meredith v. Jefferson County Board.

“Although it’s difficult to make any firm predictions in the middle of the term, I feel reasonably confident in predicting the court’s term as a whole will be considered quite an interesting and important one, and also that we will start to develop at least some meaningful data points when it comes to thinking about what the Roberts Court is going to look like.”
• Reported by Emily Williams