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John Roberts on Environment

Supreme Court Justice (nominated by Pres. George W. Bush 2005)


No compensation for delayed development for enviro zoning

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002): In this landmark property rights case Judge John Roberts argued on behalf of the Tahoe Regional Planning Agency that a temporary prohibition of development on land around Lake Tahoe should not entitle landowners to compensation. The Court agreed in a 6-3 decision that protected the ability of zoning commissions to institute temporary moratoriums on development to protect environmental interests.
Source: Rollbackcampaign.org, "Notable Supreme Court Cases" , Nov 1, 2011

EPA, not Congress, determines when cost-benefit applies

Riverkeeper v. EPA, 2007, challenged an EPA rule regulating cooling-water intake structures at power plants. To minimize the adverse impact on aquatic life, the Clean Water Act requires the intake structures to use the "best technology available," withou specifying that technology. Sotomayor held that the EPA was not permitted to engage in a cost-benefit analysis to determine the best technology; instead, it could consider cost only to determine whether the proposed technology was "cost-effective."

In April 2009, by a vote of 6-3, the Court reversed. In an opinion by Justice Scalia, the majority deemed that the CWA's silence with regard to determining the best technology available "is meant to convey nothing more than a refusal to tie the agency's hands as to whether cost-benefit analysis should be used, and if so to what degree." Justice Stevens wrote a dissenting opinion, that "Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others."

Source: ScotusBlog.com, "Civil Litigation" , Jul 25, 2009

Allow development despite local endangered species

Roberts dissented from the majority on the court ruling in the case RANCHO VIEJO v. NORTON

The court ruled that the Endangered Species Act should be enforced in the case of a shopping mall developer ordered to make provisions for a rare California toad. Roberts dissented in the opinion, saying the ruling overstepped Congress’ powers to regulate commerce as spelled out in the Constitution.

Source: Miami Herald, “Robert’s Rulings” , Jul 21, 2005

No lawsuits to prevent mining on federal land

When Roberts was the government’s lead counsel before the Supreme Court in Lujan v. National Wildlife Federation, he successfully argued that members of the environmental group did not have a right to file claims against 4,500 acres of public land being opened to mining. The court agreed, making it harder for plaintiffs to challenge government actions that hurt the environment.
Source: Slate.com , Jul 19, 2005

Species within one state not protected by federal law

Roberts voted for rehearing in a case about whether a developer had to take down a fence so that the arroyo toad could move freely through its habitat. Roberts argued that the panel was wrong to rule against the developer because the regulations on behalf of the toad, promulgated under the Endangered Species Act, overstepped the federal government’s power to regulate interstate commerce. At the end of his opinion, Roberts suggested that rehearing would allow the court to “consider alternative grounds” for protecting the toad that are “more consistent with Supreme Court precedent.” (Rancho Viejo v. Nortion, 2003)
Source: Emily Bazelon and David Newman, Slate.com , Jul 1, 2005

Clean Water Act applies only to navigable wetlands.

Justice Roberts joined the concurrence on RAPANOS v. UNITED STATES on Jun 19, 2006:

One petitioner was the subject of a civil enforcement action by the Army Corps of Engineers for filling, without a permit, three wetland sites that the Corps considered to be "navigable waters" under the Clean Water Act (CWA). These wetlands had "surface connections" to traditionally navigable waters. Another petitioner appealed the Corps' denial of a permit to fill wetlands that were separated by a dike from a drainage ditch that emptied into a tributary of traditionally navigable waters.

HELD: Delivered by Scalia; joined by Thomas & Alito

The CWA defines "navigable waters" as actual water, as found on the earth's surface in a permanent standing or flowing state. It does not include wetlands, except those wetlands that abut and extend without interruption away from "navigable" water. Here the technical expertise of the Corps in determining an appropriate boundary is called for. While entitled to deference, the Corps' regulations and policies cannot stand when they are entirely without statutory support, and the Corps now asserts jurisdiction over roadside ditches and desert arroyos that are dry other than a few days a year.

CONCURRED: Kennedy concurs

The Court's precedent requires that a water or wetland have a "significant nexus" to traditionally navigable water. The Court should have followed that precedent.

CONCURRED: Roberts concurs

It is unfortunate that a majority could not agree on an opinion, because the Corps and lower courts will be left without guidance.

DISSENT: Stevens dissents; joined by Souter, Ginsburg, & Breyer

The Court's precedent was that, considering the environmental goals of the CWA, the Corps' interpretation of its jurisdiction was reasonable to include tributaries and wetlands that the Corps considered to be "adjacent" in the sense of within a reasonable proximity and connected in some manner, not directly abutting, "navigable waters."
Source: Supreme Court case 06-RAPANOS argued on Feb 21, 2006

States can't request EPA to regulate CO2 greenhouse gases.

Justice Roberts wrote the dissent on MASSACHUSETTS v. EPA on Apr 2, 2007:

Numerous entities, including the Commonwealth of Massachusetts, asked the EPA to judge that carbon dioxide (CO2) was a pollutant causing global warming and, acting under the Clean Air Act (CAA), to make rules restricting its release by newly manufactured automobiles. The EPA declined to do so.

HELD: Delivered by Stevens; joined by Kennedy, Souter, Ginsburg & Breyer

The plaintiffs have standing for a federal case. Massachusetts, in particular could make a showing of injury (rising coastal water levels), causation (an incremental lowering of CO2 would be helpful), and remedy (the EPA could effect an incremental lowering). The EPA believed that Congress did not intend the EPA to regulate substances that cause climate change. The EPA, however, should find CO2 (among other gases) falls within the definition of a pollutant because it is a "substance" that is "emitted into the ambient air."

DISSENT #1: Roberts dissents; joined by Scalia, Thomas & Alito

The plaintiffs do not have standing because they can show no concrete injury, the evidence of causation by greenhouse gases of rising coastal water in Massachusetts was minimal (and undercut by its own expert's affidavit), and there was no showing that a rule issued by the EPA could provide measurable relief to the plaintiffs. The plaintiffs' claim cannot truly be resolved by decision of a federal court.

DISSENT #2: Scalia dissents; joined by Roberts, Thomas, & Alito

It was a reasonable interpretation by the EPA of the CAA that Congress intended the EPA to regulate air pollution in the "ambient air," that is, air at or near the surface of the earth, not the upper reaches of the atmosphere where greenhouse gases are said to have their detrimental effects. Further, nothing in the CAA, not even a petition for regulations, requires the EPA to make a "judgment" that a pollutant should be regulated, and the Court is not free to order the EPA to do so.
Source: Supreme Court case 07-MA-EPA argued on Nov 29, 2006

Other Justices on Environment: John Roberts on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

Former Justices:
David Souter
Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Mar 08, 2014