Is the Roberts Supreme Court hostile to the environment? Court watchers say that since Chief Justice John Roberts joined the court in 2005, the Court has taken a sharp anti-environmental turn. And the term just ending was a particular disaster for environmental cases. The “greens” were shut out, 0 for 5. That is, all five of the “green” cases argued before the Court this term were decided against the environmentalists’ positions.

The defeats were especially painful in that all five decisions reversed lower court decisions in favor of the “greens.” But the part that should most concern us is the way the Roberts Court deliberately reached out for some of these cases, apparently eager to reverse them. Writing for the National Law Journal, Marcia Coyle reported that “The justices granted review at the behest of business, even when the solicitor general of the United States recommended denying review.”

In Scientific American, Jennifer Koons quoted John Echeverria, director of the Georgetown University Law Center’s Environmental Law and Policy Institute. “This term’s environmental decisions, taken as a whole, convey a message of extreme hostility to the goals and methods of environmental law,” Echeverria said. “Based both on the specific cases the court selected for review, and the court’s actual decisions in the cases, the overall effect of the rulings has been to weaken environmental protections across the board.”

The Sotomayor Nomination

Will the expected replacement of Justice Souter with Justice Sotomayor make a difference? Environmentalists are cautiously optimistic that Sotomayor will be a friend of the Earth. A number of environmental and Native American groups—including the Sierra Club, Earthjustice, Greenpeace USA, the League of Conservation Voters, and the Center for Biological Diversity—support her confirmation, even though she has written few decisions on environmental cases.

One of the five cases overturned this past term was Entergy Corp. v. Riverkeeper, which reversed a decision of the Second Circuit Courwt, a panel that includes Supreme Court nominee Judge Sonia Sotomayor. Very briefly, Judge Sotomayor decided the Clean Water Act mandated the use of the most effective methods for protecting life in rivers and lakes near power plants. The Supreme Court decided the Clean Water Act allows the Environmental Protection Agency to use cost-benefit analysis.

But Sotomayor, if confirmed, will replace retiring Justice David Souter, long one of the more pro-environment justices on the Court. Even if the greens’ hopes for Sotomayor are realized, the overall balance of the Court on environmental issues likely will not change.

This was not the case when Justice Samuel Alito replaced retiring Justice Sandra Day O’Connor in 2006. Justice O’Connor more often that not decided in favor of environmental interests. Justice Alito’s record is far less “green” and more pro-business.

Another shift has been in the voting of Justice Anthony Kennedy, who joined the Court in 1988. Justice Kennedy has been more favorable to environmental interests in past years, but this term he joined with the un-green majority on all five environmental cases heard by the Court. Five justices — Roberts, Alito, Kennedy, Clarence Thomas and Antonin Scalia — were a solid non-green voting block this term. In four of the five cases the majority was joined by Justice Stephen G. Breyer, considered a moderate on environmental law.

Who’s Responsible?

In one case, even the usually pro-green Souter joined with the majority. This was Burlington Northern Railway/Shell Oil Co. v. U.S., a case concerned with who would pay for an environmental cleanup of toxic substances.

In the 1970s and 1980s, a company called Brown & Bryant purchased chemicals from Shell Oil Co. and stored these chemicals on parcels of land owned by itself and also by Burlington Northern & Santa Fe Railway Company and the Union Pacific Transportation Company. The chemicals leaked onto the property, and eventually the EPA spent more than $8 million to clean it up. The EPA also ordered the two railroad companies to perform several tasks involving the properties, at a cost of $3 million to those companies

The railroads sued the now-defunct Brown & Bryant to recover costs, and that suit was consolidated with suits brought by the state of California and the EPA against Shell and the railroads. The two issues these cases presented to the Court were, first, whether Shell bore any liability for the cleanup of the chemicals; and second, whether the courts could impose joint and several liability in this cost-recovery case. Very briefly, in tort cases, “joint and several liability” means that where there are several defendants, a claimant may recover all damages from any of the defendants regardless of their individual share of the liability.

In their interpretation of the Comprehensive Environmental Response, Compensation, and Liability Act (”CERCLA”), the Supreme Court reversed the lower courts and said Shell could not be held responsible as an “arranger” of the environmental hazard, even though Shell continued to sell chemicals to Brown & Bryant knowing the chemicals were not being properly stored. Under the language of CERCLA, the justices said, Shell would have been responsible for the cleanup only if its intention was to dispose of the hazardous chemicals by selling them to Brown & Bryant.

In other words, Shell’s sale of chemicals to Brown & Bryant was not for the purpose of arranging for the chemicals to be disposed. So, the Court said, Shell was not responsible for what was done with the chemicals under the language of CERCLA.

The Supreme Court also reversed the Ninth Circuit’s decision that the railroads were jointly and severally liable for the full cost of the governments’ cleanup. The issue of joint and several liability often applies to a variety of litigation, such as personal injury suits from people suffering from mesothelioma from asbestos exposure. This was an 8-1 decision, with only Justice Ginsburg dissenting.

In the three other cases the “greens” lost, the Court ruled that environmental groups lacked standing to challenge certain U.S. Forest Service regulations; lifted an injunction limiting the Navy’s use of sonar near marine mammals; and sided with a gold mine operator who argued that the Army Corps of Engineers could issue dumping and dredging permits without satisfying the EPA’s more stringent pollution permit limits.

In the New York Times, Alan Liptak quotes Patrick A. Parenteau, who teaches environmental law at Vermont Law School. “The lesson from this,” Professor Parenteau said, “is to do everything you can to keep environmental cases out of this court.”