Posted by Marty Lederman at 05:50 PM
Yes, the docket is sparser than ever, but this Term and last have already been major Terms for environmental cases, and we might not have seen the end of it yet. My colleague Richard Lazarus writes to note that in the past several weeks the Solicitor General has petitioned in four environmental cases, and acquiesced to certiroari in a fifth case. If the Court were to grant in all or most of these cases, a very significant percentage of its docket this Term would involve environmental law.
These are the cases, with links to the petitions:
1. No. 06-466, PG&E Co. v. San Luis Obispo Mothers for Peace [acquiescence]
[Briefs in opposition filed Dec. 15, 2006]
QUESTIONS PRESENTED:
1. Whether the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., requires the Nuclear Re gulatory Commission to consider, as part of its review of a proposed federal action, the environmental impact of a potential terrorist attack.
2. Whether the Commission must consider such an impact even if the risk is not sufficiently quantifiable to be meaningful or to assist agency decision making under NEPA.
2. No. 06-549, EPA v. Defenders of Wildlife
[Reply Brief here, filed Dec. 11, 2006.]
QUESTION PRESENTED:
Whether Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. 1536(a)(2), which requires each federal agency to insure that its actions do not jeopardize the continued existence of a listed species or modify its critical habitat, overrides statutory mandates or constraints placed on an agency’s discretion by other Acts of Congress.
3. No. 06-562, U.S. v. Atlantic Research Corp.
[Response requested; due Jan. 8, 2007]
QUESTION PRESENTED:
Whether a party that is potentially responsible for the cost of cleaning up property contaminated by hazardous substances under the Comprehensive Environ mental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., but that does not satisfy the requirements for bringing an action for con tribution under Section 113(f) of CERCLA, 42 U.S.C. 9613(f), may bring an action against another potentially responsible party under Section 107(a), 42 U.S.C. 9607(a).
4. No. 06-736, EPA v. New York
[Briefs in opposition filed Dec. 18, 2006]
QUESTION PRESENTED:
Whether the court of appeals erred in invalidating an EPA rule [respecting the "new source review" program] on the ground that the phrase "any physical change" in the definition of "modification" in Section 111(a)(4) of the Clean Air Act, 42 U.S.C. 7411(a)(4), unambiguously requires EPA to adopt the broadest meaning of the phrase.
5. No. 06-797, U.S. Forest Service v. Earth Island Institute
[One brief in opposition filed Dec. 20, 2006; others due Feb. 9, 2007]
QUESTION PRESENTED:
In this action under the Administrative Procedure Act, respondents challenge two projects adopted by the Forest Service to restore portions of the Eldorado National Forest that were severely damaged by fire. The court of appeals ordered entry of a preliminary injunction barring the Forest Service from proceeding with those projects.
The question presented is whether the court of appeals erred in ordering a preliminary injunction, including by:
a. Relying on declarations filed by respondents in the district court, rather than confining its review to the administrative record, in determining that respondents had shown a likelihood of success on the merits;
b. Holding that respondents could satisfy the "irreparable injury" prong of the test for obtaining a preliminary injunction by showing only a "possibility" of such injury; and
c. Discounting competing interests in the use of Forest lands under multiple use principles, and the Forest Service's balance of those competing uses, in weighing the balance of harms and the public interest.