Supreme Court Justice (nominated by Pres. George W. Bush 2005)
EPA enforcement gives no recourse to homeowners
In the words of one former Army Corps of Engineers official, "for regulatory purposes, a wetland is whatever we decide it is." Courts have taken the deferential attitude that they cannot question themselves to take up whether or not the EPA has followed
their own moving-target rules.
Justice Samuel Alito was most skeptical while questioning the Justice Department's deputy solicitor general and legal counsel for the EPA, exclaiming, "Don't you think most ordinary homeowners would say
this kind of thing can't happen in the US? You buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says:
You have filled in wetlands, so you can't build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to."
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."
Citizens can only sue under CWA if they suffered injury
SEN. FEINSTEIN: The Clean Water Act included a provision permitting citizens to bring lawsuits. In NJ-PIRG v. Magnesium Elektron, a citizens environmental group sued a chemical manufacturer for polluting a river. The trial court found that the defendant
committed 150 Clean Water Act violations. On appeal you overturned the trial courtís decision, based upon your conclusion that the environmental group did not have standing to sue.
ALITO: You have to have a plaintiff who has suffered injury in fact.
And the plaintiffs in that case had not even alleged personal injury. They alleged that they enjoyed the Delaware River in a variety of ways. They walked along the canal path, they ate fish from the river, they drank water from the river. But there was
no evidence that the discharges into a creek some distance upstream from the river had had any effect whatsoever on the river and, therefore, there was nothing to support a claim that they were personally injured by the discharges of this plant.
Ruling on standing is not ruling against the environment
SEN. SESSIONS: You were asked about one environmental case by Sen. Feinstein where you ruled based on standing. Thatís a well-recognized principle. Donít you agree?
ALITO: Itís a constitutional principle.
SESSIONS: It does not have to do with
whether you were for or against the environmental issue in question but simply whether the person bringing the suit was a legitimate person to bring that suit.
ALITO: Thatís right. And it doesnít have anything to do with Congressí power to regulate
the environment under the commerce clause. Thatís a separate question. One has to do with the scope of congressional power; the other has to do with who can bring the suit.
SESSIONS: And with regard to environmental cases, you have authored six
environmental opinions; and you sided with the environmental regulatory body in five of those six opinions. Indeed, Professor Cass Sunstein said this about you, ďThis is a judge who, if the text is pro-environment, heís very likely to follow it.Ē
Required proof that pollution from companies damaged water
Alito joined another judge in 1997 in a ruling that attempted to make it more difficult to hold polluters accountable when they fouled water supplies. Rather than applying the standards that punished companies based on how much they polluted a body of
water, Alito embraced an approach that required proof that the pollution damaged the water. The ruling, in Public Interest Research Group v. Magnesium Elektron, invalidated an existing $2 million fine. Later, the Supreme Court rejected Alitoís analysis.
Source: The Dallas Morning News
, Oct 31, 2005
Clean Water Act does not apply to wetlands.
Justice Alito joined the Court's decision 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 Alito joined 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
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