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Prior to the rise of the environmental movement and the great increases in regulation of the environment by the U.S. Congress through its statutory authority as administered by the Environmental Protection Agency (EPA) and other bureaucratic agents, the U.S. Supreme Court was involved in environmental regulation. With its constitutional authority it exercised judicial review in regard to the constitutionality of legal issues in environmental cases. However, most of the cases involved tort law and principles of the common law. Some of the types of cases the Supreme Court reviewed included cases of water rights and a growing number of matters involving conservation. Other cases involved interpretations of federal and state laws. Some involved constitutional issues arising from federal laws, regulations, or actions; some involved the constitutionality of state laws. Other cases arose in response to conservation laws and later environmental laws passed by Congress in increasing numbers after the 1960s.
Prior to the 1960s, federal laws concerning the environment were focused on conservation. A number of Supreme Court cases came up as Americans began to seek to protect the last buffalo or the last stands of virgin timber or other natural resources endangered at the time. An important case involving conservation was Missouri v. Holland, U. S. Game Warden, 252 U. S. 416 (1920). Legally the case involved the inherent powers of the government of the United States in foreign affairs.
Missouri is located on one of the great migratory flyways. Every autumn vast flocks of birds flying south for the winter transit Missouri. Water fowl, especially geese and ducks, flying in their V-shaped wedge formations, annually silhouette the sky with skein after skein stretching as far as the eye can see. By the early 1900s, the State of Missouri, like all American states, had established hunting regulations to allow the hunting of migratory birds. One of the reasons for Missouri’s hunting regulations was a concern for conservation. However, another reason was the interest in the money generated by hunting and hunting licenses.
Conservationists at the time were very concerned about hunting that could exterminate some species. However, in response to conservationist concerns Congress also passed a law in 1913 to regulate the hunting of migratory birds. Two federal district courts declared the law to regulate the hunting of migratory birds based on the commerce clause to be unconstitutional because there is nothing expressed or implied in the Constitution to authorize the regulation. The cases were not appealed.
On July 3, 1918, Congress passed the Migratory Bird Treaty Act as legislation to implement the Migratory Bird Treaty of December 8, 1916, with Great Britain acting on behalf of Canada. Missouri sued to stop Ray P. Holland, a federal game warden, from enforcing the law. Missouri argued that the law and hence the treaty were not authorized by the constitution; that the treaty infringed upon Missouri powers, reserved to it by the Tenth Amendment; and that once the birds entered Missouri air space they became the property of the State of Missouri.
Justice Oliver Wendell Holmes, in a short, cryptic opinion, concluded that the Government of the United States did, in foreign affairs, have the authority “under the Constitution” to make treaties and to implement them under the necessary and proper clause: Article I, Section 8. He also concluded all treaties are the law of the land (Article VI) so the claims of Missouri could not limit the treaty-making power of the federal government. Justice Holmes also dismissed Missouri’s claim to a property interest in migrating birds by noting that they were wild and the property of no one.
Cases appearing before the Supreme Court have arisen in a number of ways. Some cases have involved the ownership of eagle feathers, possession of animals, water pollution, and other issues. However, most Supreme Court cases have decided issues arising from environmental regulatory legislation adopted by Congress since the 1960s. Most important have been the Clean Air Act, the Clean Water Act, the Natural Environmental Policy Act, the Resource Conservation and Recovery Act, and other similar legislation.
Some cases appearing before the Supreme Court have been brought against an independent agency of the United States. These cases may involve polluting practices endangering the public’s health such as the Rocky Mountain Flats Facility operated by the Atomic Energy Commission, or by the Tennessee Valley Authority over an endangered snail darter in the Tellico Dam case, TVA v. Hill (1978).
Cases also arise from the regulatory bodies administering federal environmental protection legislation. Of major significance in the administering of federal environmental and conservation legislation has been the EPA. Other federal agencies have a role in the same area. It is also important to note that all of the 50 states have their own environmental regulatory laws and regulatory agencies. From these rules and regulations cases have arisen to the Supreme Court. Cases have also involved industries or businesses that have sued for relief from what are considered burdensome regulations. Some businesses have engaged in countersuits in an effort to fight back against litigious environmental groups. The Supreme Court decides which cases it will hear as its own gatekeeper. The number of cases reaching the appellate courts of appeal has grown enormously in the last 25 years. This includes environmental cases that now number in the thousands.
The operations of the EPA have been a regular issue on the Supreme Court’s docket. The numerous cases involving the EPA demonstrate the monetary value of winners and losers in the court’s decisions. At stake may be vast sums of money or, from the point of view of environmentalists, the preservation of irreplaceable nature that, if exploited, will disappear forever. Cases involving the EPA appearing before the Supreme Court have presented many issues. In a case in March 2001 the Court rejected the legal arguments of industry groups seeking a ruling that would force the EPA to use cost-benefit analysis in setting clean air standards.
In Whitman v. American Trucking Association, Inc. (2001), the Supreme Court held that the EPA must set ambient air quality standards without regard to the cost of implementing those standards. The Court examined the legislative history of the Clean Air Act and concluded that Congress set the standards in outline and did not view the cost of abiding by the standards as a factor that was to be considered. The cost for clean air would be whatever the payments had to be.
Another very regular defendant appearing before the Supreme Court is the Army Corps of Engineers. It has been involved in clearing rivers and streams of obstacles to navigation since the beginning of the Republic. It also operates levees and other flood control systems. Its decisions as to what is a wetland, and therefore what can and cannot be filled in even when a wet area is on private land, is a matter of great consequence to the public and an issue that has appeared in Supreme Court cases involving not only the Corps but also the EPA.
The Constitution gives the Congress the authority to regulate the navigable waters of the United States. Deciding which waters of the United States are supervised by the Corps of Engineers has been contested in various ways. In a 2001 case, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, a divided Court struck down the Army Corps’ migratory bird rule because it was lacking a substantial definition of the “navigable waters” governed by the Clean Water Act. Historically the courts in the United States have taken a broad view of the meaning of “waters of the United States.”
In 2006 the Supreme Court in Rapanos v. United States and in a companion case, Carabell v. U.S. Army Corps of Engineers, decided that the term “waters of the United States” and “navigable waters” in the Clear Water Act do not apply to streams that have only intermittent flows. The decision overturned a decision by the 6th Court Circuit of Appeals. In effect the Court said that the Clean Water Act does not protect isolated intra-state wetlands that are more often dry.
Other kinds of environmental decisions made by the Supreme Court involve such matters as the legal responsibility of federal agencies or the division of powers between the states and the federal government in the enforcement of environmental laws. In the case of the S. D. Warren Company v. The Maine Board of Environmental Protection the Supreme Court decided that a federally licensed hydroelectric facility must have a water quality certification issued by the State of Maine. The opinion of the Court made federally licensed facilities subject to state jurisdiction when the issue was the discharge of effluents into the watershed. The Court’s decision centered on the meaning of the term, “discharge” used in the Clean Water Act.
At the end of 2006, the Supreme Court was hearing a case, Massachusetts v. Environmental Protection Agency (EPA), involving whether or not citizens and environmental groups could sue to stop what they consider to be the contributors to global warming. The Supreme Court’s decision will probably involve standing to sue and also whether or not the issue of global warming is judicable. Also involved in the case are 12 states that are suing the EPA.
Their suit claims that the EPA has failed to limit harmful gas emissions that are believed to be causing global warming. The court will have to decide if there is indeed global warming. The suit claims that the government, in this case the George W. Bush Administration, has not been serious about global warming. The state governments involved are claiming to take global warming seriously and are seeking judicial relief that will force the EPA to follow their interpretation of the Clean Air Act.
Some parties to an environmental case join through the filing of amicus curia briefs. These “friend of the court” briefs present claims that are supposed to help the court in making a decision. In the global warming case the Aspen Ski Company of Aspen, Colorado, joined through an amicus curia brief that supports the side of the conservation groups and the 12 states over carbon dioxide emissions being responsible for global warming.
- Charles Lofgren, “Missouri v. Holland in Historical Perspective,” Supreme Court Review (1975);
- Robert Meltz, Constitutional Bounds on Congress’ Ability to Protect the Environment (Nova Science Publishers, 2003);
- S. Congress, SWANCC Supreme Court Decision: Impact on Wetlands Regulations: Hearing before the Subcommittee on Fisheries, Wildlife, and Water of the Committee on Environment and Public Works, United States Senate, One Hundred Eighth Congress, First Session (U.S. Government Printing Office, 2004);
- S. Supreme Court Limits Federal Regulation of Wetlands: Implications of the SWANCC Decision (California Research Bureau, 2002).