{"id":1883,"date":"2014-09-11T09:04:50","date_gmt":"2014-09-11T13:04:50","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/elr\/?p=1883"},"modified":"2023-07-25T15:59:41","modified_gmt":"2023-07-25T19:59:41","slug":"its-raining-cert-petitions-last-terms-biggest-supreme-court-news","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/elr\/2014\/09\/11\/its-raining-cert-petitions-last-terms-biggest-supreme-court-news\/","title":{"rendered":"It\u2019s Raining Cert Petitions!: Last Term\u2019s Biggest Supreme Court News"},"content":{"rendered":"

\"Supreme<\/a>By Richard Lazarus — Sep. 11, 2014 at 9:05 a.m.<\/em><\/p>\n

This article originally appeared in the September\/October 2014 issue<\/a> of <\/em>The Environmental Forum. The Environmental Law Institute has graciously allowed the Harvard Environmental Law Review Blog to republish the piece.<\/em><\/p>\n

The biggest environmental law news from the Supreme Court last term may well not have been the Court\u2019s rulings in two high profile Clean Air Act cases. To be sure, both EPA v. EME Homer City Generation <\/em>and Utility Air Regulatory Group v. EPA <\/em>were true blockbusters. EME Homer<\/em>, which upheld EPA\u2019s ambitious rulemaking to combat interstate air pollution, was plainly a huge victory for the Environmental Protection Agency.<\/p>\n

But, potentially more important, yet largely unnoticed and unreported, were the Court\u2019s repeated denials last spring of a series of petitions filed by business interests seeking the Court\u2019s review of a series of adverse appellate rulings. At one point the deluge of such petitions led one lawyer, who frequently represents environmental groups, to remark gamely, \u201cIt\u2019s raining cert petitions!\u201d<\/p>\n

The reason for the onslaught is clear. The business community has in recent years enjoyed considerable success in persuading the justices to grant review in environmental cases that otherwise seemed to lack the obvious trappings of a cert-worthy case, lacking clear conflicts in the federal courts of appeals. Cases in which the potential for further agency action made unclear the actual, practical significance of the appellate court\u2019s ruling. And even cases in which the solicitor general, after being invited by the High Court to express its views concerning whether review was warranted, recommended against.<\/p>\n

In short, the Court often appeared to be operating on a hair trigger in considering business claims that the lower courts had endorsed overreaching of federal environmental laws. But this spring, the Court repeatedly said no, leaving industry lawyers a bit baffled by the Court\u2019s sudden betrayal.<\/p>\n

Four times business interests embraced what had heretofore been a winning strategy. They hired the best Supreme Court lawyers \u2014 the ones who know the Court best, and even more important, the ones the justices and their law clerks know the best and therefore might be more likely to give weight to their views. Former Solicitor General Paul Clement. Sidley & Austin\u2019s Peter Keisler. And Stanford law professor and formal appellate judge Mike McConnell. The business petitioners recruited legions of amicus curiae to file briefs in support of the Court\u2019s granting review. These briefs would invariably describe the \u201ccrippling,\u201d \u201csevere,\u201d \u201cintolerable,\u201d \u201cdeleterious,\u201d \u201ccrushing,\u201d and \u201cstaggering\u201d consequences to the nation\u2019s economy if the Court left standing these adverse lower court rulings.<\/p>\n

No one was better, however, than the Chamber of Commerce in describing the economic havoc and destruction that would occur absent the Court\u2019s review. In each of the successive cases, the chamber\u2019s predictions grew more dire.<\/p>\n

Although candidly acknowledging that it would \u201cdifficult to overstate the importance\u201d of the lower court\u2019s ruling for business, the chamber did not shy away from doing its best to do just that. It described in one case how the \u201ccrippling uncertainty and costs\u201d would \u201cexacerbat[e]\u201d existing energy shortages\u201d because \u201cpower plants faced with a new onslaught of tort liability may choose to cease operations.\u201d In another, the lower court\u2019s ruling \u201cwill undermine the proper functioning of the nation\u2019s integrated national market in transportation fuels.\u201d<\/p>\n

Not to be outdone by its competing predictions of economic cataclysm, the chamber contended in yet another case that a Second Circuit decision \u201cwould transform every public drinking water supply in this country \u2014 indeed every future supply \u2014 into a ready-made multi-million-dollar lawsuit.\u201d It \u201cwould open the floodgates to claims against virtually every manner of human enterprise\u201d and the \u201cconsequences could extend to all corners of our economy.\u201d<\/p>\n

Finally, the chamber described the \u201cstaggering\u201d economic consequences of the D.C. Circuit\u2019s upholding of EPA\u2019s authority to override a Clean Water Act permit previously issued by the Army Corps of Engineers. That ruling placed at risk \u201cover $220 billion of investment annually,\u201d that in turn the chamber calculated generated $660 billion of downstream economic activity, or almost four percent of the nation\u2019s Gross Domestic Product.<\/p>\n

The Court nonetheless denied review all four times: first in Mingo Logan Coal Co. v. EPA <\/em>in March; then Exxon v. City of New York <\/em>in April, and twice in June, Gen-On Power Midwest v. Bell<\/em>, at the beginning of the month, and finally in Rocky Mountain Farmers Union v. Corey<\/em>, just before adjourning for the summer. No justice dissented.<\/p>\n

There is, of course, a useful lesson here. Zealous advocacy is to be expected. But exaggerated advocacy is counterproductive, especially in the High Court when, by spring time, the justices\u2019 law clerks are more seasoned and can more readily tell the difference between the two.<\/p>\n

And, most happily, the chamber\u2019s prophecies have not (yet) borne out. Whew!<\/p>\n

 <\/p>\n

Richard Lazarus is the Howard J. and Katherine W. Aibel Professor of Law at Harvard University.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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