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How Green Is the U.S. Supreme Court? First in Legal News and Information

How Green Is the High Court

Five cases put environmental laws to the test

Is the U.S. Supreme Court hostile to environmental regulation? Does it shy away from the tougher environmental questions of today? Or are its decisions a “mixed bag,” giving comfort and angst to environmentalists and industry depending on the issue?

The justices this term have taken five environmental cases for decision thus far — a significant number for a relatively small docket. With the exception ofthe already argued case involving Navy sonar and its impact on whales and other marine mammals, this environmental quintet is unlikely to arouse public passions.

But all five cases raise bread-and-butter environmental issues, some with potentially huge implications for the ability of environmentalists and the government to enforce the nation’s major environmental laws and for the wherewithal of business and industry to survive and prosper under those laws.


And, finally, Burlington Northern v. U.S., No. 07-1601, consolidated with Shell Oil v. U.S., No. 07-1607, also has potentially wide ramifications, all contend. The Court faces questions about the standards for apportioning liability among parties for Superfund site cleanups and for imposing so-called “arranger” liability under the same law. The companies here are challenging the 9th Circuit’s refusal to apportion liability and its imposition of joint and several liability as well as arranger liability.

“We have numerous Superfund sites where there’s litigation as to who is responsible for what,” said Kamenar. “Congress intended courts to use common law and the Restatement of Torts for apportioning liability among potentially responsible parties. It’s only if that cannot be done on a reasonable basis, then and only then, does joint and several liability kick in. The case is very important in terms of the standard courts should use in apportioning liability, particularly where there are no records of who did what.”

The issue of arranger liability is also “crucial” to industries such as chemical and pesticides, he added. “Any time a company sells a product to a buyer, if the buyer spills some of chemicals or whatever on the property, which becomes a Superfund site, can the seller be held liable?” he said. “Here the court said Shell was jointly and severally liable.”

In the end, Echeverria predicted, “If one were a gambler, one would bet a majority of the cases the Supreme Court has agreed to hear will come out against the environment.”

The above are extracts from the article. 


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