Bloomberg Law


The U.S. Supreme Court launches its new term with a light environmental docket and a heavy air of uncertainty, with a nomination battle raging and a global pandemic continuing to disrupt the institution’s normal order.

The court sits for its first environmental case on the opening day of oral arguments Oct. 5, wading into a water war between Texas and New Mexico. A month later, it’s set to hear a dispute over endangered species records.

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The Pecos River flows outside Carlsbad, N.M. The river is at the center of a dispute between New Mexico and Texas that the Supreme Court will hear.
Photographer: Steven St John/Bloomberg via Getty Images

Other cases could have ripple effects for future environmental litigation, and the justices could fill out their calendar with important disputes involving pipelines, coal exports, and climate change.

But the start of the new term will look very different from previous years: The justices will hear October arguments by phone to protect against the spread of Covid-19, and will be down one member of the bench, as President Donald Trump pushes to fill the seat of the late Justice Ruth Bader Ginsburg with conservative appellate Judge Amy Coney Barrett.

“Things are really quite crazy,” University of Maryland law professor Robert Percival said. And while changes to the court’s membership aren’t expected to have a big impact on this year’s light environmental docket, a more conservative bench could reshape future cases, he said.

The further rightward shift anticipated at the Supreme Court gives greater odds of success to the Trump administration’s regulatory rollbacks if they land before the justices, and it puts a bull’s eye on any ambitious environmental policies a future Democratic administration may try to enact.

“With a six-justice conservative majority in future terms, all bets are off,” Percival said.

Barrett’s ascension to the Supreme Court could help conservatives check off their legal wish list on abortion, healthcare, and the administrative state. Environmental advocates worry she’ll work to raise the bar for them to get into court at all.

Water Wars

The first environmental case on the Supreme Court’s calendar this term is Texas v. New Mexico, a long-running fight over how the two states share water from the Pecos River.

The case isn’t expected to split on ideological lines, so an open seat on the court is unlikely to affect the outcome, Percival said. The dispute stems from complicated facts: a decades-old compact, flooding from a 2014 storm, water storage, and evaporation loss. In short, the justices must decide whether New Mexico should get credit for delivering water that never made it to Texas.

The scenario is unique, but it touches on broader issues that are likely to make more frequent appearances at the Supreme Court as climate change stresses water supplies, and old interstate water agreements prove ill-equipped to deal with the consequences.

“Part of what we’re seeing in most of the cases is, well, what do you do with these decades-old compacts as conditions are changing—both the hydrological conditions and the social conditions,” University of Utah law professor Robin Kundis Craig said.

Endangered Species Records

In U.S. Fish and Wildlife Service v. Sierra Club, set for argument Nov. 2, the justices will consider whether federal officials must turn over key Endangered Species Act documents.

The government and the environmental group disagree over whether the Freedom of Information Act requires agencies to release records from a review process that focused on how federal regulations for power plants would affect endangered species.

Government lawyers say initial findings from that review process were “drafts” that are exempt under FOIA. The Sierra Club disagrees and says that interpretation would allow agencies to hide important scientific findings from the public.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Jurisdiction, International Law

Non-environment cases on the Supreme Court’s calendar could end up affecting future environmental litigation, too.

In Ford Motor Co. v. Montana Eighth Judicial District Court, for example, the justices are reviewing the limits of what’s called specific personal jurisdiction, a court’s ability to decide cases involving out-of-state defendants with certain in-state ties.

The Ford case involves product liability in the automobile industry, but could affect climate cases waged by state and local governments across the country, as defendant oil companies say courts lack jurisdiction to hear the disputes. State court proceedings in a climate lawsuit from Rhode Island are on hold until the Supreme Court decides the Ford case, and industry lawyers have pushed for a similar freeze in climate litigation from King County, Wash.

Nestlé USA v. Doe, meanwhile, addresses the scope of the Alien Tort Statute of 1789, which allows noncitizens to use U.S. courts to sue over violations of international law. The Supreme Court is reviewing whether U.S. companies can be sued for “aiding and abetting” violations abroad.

A broad reading of the law would mean “the door will open for substantial liability for domestic corporations for overseas activities by subsidiaries,” George Mason University law professor Donald Kochan said, a development that could ultimately entangle energy companies in international law claims about their role in climate change.

Climate, Energy Petitions

The Supreme Court is also considering whether to take up a slew of pending petitions that directly address environmental issues, though the justices tend to add fewer cases when they’re down a member.

“Traditionally when the court is short-handed, the justices are more reluctant to grant certiorari,” Case Western Reserve University law professor Jonathan H. Adler said.

In BP Plc v. Mayor & City Council of Baltimore, oil companies are asking the justices to resolve a technical question that affects whether the companies can defend against high-stakes climate liability cases in their preferred venue of federal courts—or in state courts, which are seen as more receptive to arguments against the industry.

On the energy front, the justices are considering whether to hear Montana and Wyoming’s complaints about Washington state blocking a key coal export terminal on the West Coast, a long-running challenge to New York’s prohibition on fracking, and a case involving the PennEast pipeline, property rights, and state lands.

The high court is also weighing whether to take up an ongoing fight from several environmental groups over the Trump administration’s funding for the U.S.-Mexico border wall, as well as a challenge to Obama-era protections for a vast national monument in the Atlantic Ocean.

Changes in Government Position

Another pair of pending petitions ask the Supreme Court to review a long-running dispute over roads that cross public lands in and around Grand Staircase-Escalante National Monument in Utah. The legal question is much broader, affecting the rights of environmentalists or businesses to intervene in cases on the government’s side.

The issue is critical during changes in administration, as groups often aim to secure positions in high-profile litigation in case the federal government changes its mind on the legal issues at play.

“That question has been brought to the fore by the current administration’s changes in position, and will remain there if there is a change of administration that sends the agencies in the other direction again,” Mayer Brown attorney Timothy S. Bishop said.

Some of the Trump administration’s deregulatory moves could also hit the Supreme Court’s docket in the coming year, though their path remains largely contingent on the outcome of the presidential election.

A Democratic administration, if elected, would likely back away from rollbacks and launch an ambitious set of new environmental protections—an agenda likely to face deep skepticism from a more conservative court, George Mason University administrative law scholar Adam J. White said.

“That’s where a new Democratic administration will be the most energetic,” he said, “at a time where the conservative view of administrative law is changing so quickly away from deference.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at [email protected]


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