Friday, December 7, 2012

Friday Roundup of Environmental & Property Rights Cases before the U.S. Supreme Court

This was a big week at the U.S. Supreme Court for environmental and property rights cases. What's my soundbite? The environmental cases are extremely unlikely to actually resolve anything, which will certainly lead to more litigation. The property rights case was a big win for landowners.

First, as I discussed earlier in the week, the Court issued its opinion in Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012), holding that where the government causes flooding, even if the flooding is merely temporary and non-recurring, it may be liable for a taking. Commentary and recaps:

Second, the Court heard the Forest Roads case (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347). As I blogged about previously, EPA issued a new final rule about logging roads on the eve of oral arguments, so the Court spent most of its time discussing what should be done in light of the new development. After this, I question whether this case will actually resolve anything about the Clean Water Act. Commentary and recaps:

  • The SCOTUSblog preview and recap.
  • Lawrence Hurley reports over at Greenwire.
  • From the New York Times.
  • The National Alliance of Forest Owner's blog, which as always, boils down the legalese into something that's easy to understand, if unfortunate: "Perhaps the most significant impact of the new rule is that it will perpetuate litigation in the Ninth Circuit with the added twist that, since the rule applies nationwide, whatever the Ninth Circuit ultimately decides will apply nationwide as well. The NEDC attorney told the Court in very clear terms that NEDC intends to continue litigation by whatever means to require permits for forest roads, stating:“…we contend that the new rule simply violates the statute, and we have a right to bring a citizen suit for a violation of the Clean Water Act itself…I think that what we’ll do is proceed whatever way we can.”"

Third, the Court heard the other Clean Water Case, Los Angeles County Flood Control District v. NRDC, No.11-460 (cert. granted June 25, 2012). As with Decker, it appears that this case may not end up resulting in much insight because all parties agreed the Ninth Circuit was wrong; they just disagreed on how to fix the error. It also appears that most of the arguments are permit-specific and an opinion from the Court would likely be confined to the facts. Commentary and recaps: