Environmentalists Get Partial Wins at Supreme Court

decades of smelting operations. At the oral arguments, Chief Justice John Roberts pointed out the e p a's role and yet someone else in your position would come in and say, well, you're not doing anything here, and so we're going to go ahead and do this, when the EPA's answer might simply be that, well, we haven't gotten to it yet, but we want to be the ones to decide what to do rather than the particular landowners there, because we

have a broader perspective affecting the whole site. But Justice Neil Gorst's questioned whether the property rights of the residents were being infringed. Is there a takings claim you think that arises from the government's position that any remediation efforts for a period I I guess forty five years is prohibited by landowners. On Monday, the Supreme Court rule that the landowners must first get approval from the e p A. Joining me is Pat Parento, a professor at the Vermont

Law School. So who gets to win? The landowners, Atlantic Richfield, the e p A swards a split decision. Each gets something out of it. The landowners have the right, says the Supreme Court, to proceed in state court to seek additional remedies or restoration for the contamination from the Atlantic Richfield site. Atlantic rich Field gets to argue that the state remedy or the additional landowner remedy cannot interfere with the e p A remedy, which, of course at lank

Richfield has agreed to implement. And e p A gets to keep control over the overall clean up and make sure that what landowners might do in addition to what e p A has ordered to be done doesn't interfere with that. So everybody gets something. Chief Justice Roberts authored

the majority opinion. What was his thinking? The Chief Justice was sympathetic to the landowners, and he thought that Congress had clearly carved out a remedy for landowners who felt like the e p A remedy didn't go far enough to protect them, and he said state courts and state based remedy were permissible and that Congress did not seek to cut those off. Justice Alito wasn't as convinced to that, and I think he probably would have tossed the landowners

out altogether. Justice Gorst was even more sympathetic to the landowners and felt like they should be able to proceed without EPA's permission or approval. So you saw really an interesting split among the conservative wing of the Court in this particular case. The liberals were sat there quietly. They certainly went along with Roberts and not with Gorst. An interesting little bit of a split between robertson Gorc on

this course. It said that the outcome in the case strips away ancient common law rights from innocent landowners and forces them to suffer toxic waste in their backyards, playgrounds, and farms. And there seemed to be a little bickering, shall we say, between Gorci and Robert's using the metaphor of a sandbox, Yes, a fight in the sandbox. Indeed, it was a test to exchange is finding his voice, I think on the court and being willing to stand

up to the chief in this instance. He almost sounds like an environmentalist in this case, right, worried about toxic sandboxes and so forth. You know, Gorsage does reveal himself to be a strong believer in sort of the custom

of law, common law, our heritage of all. We've seen that before in some of his opinions, and it's part of being, i think a conservative judge who believes in property rights, and a lot of his concern about giving the e p A too much control over whether what the landowner wants is permissible or not is a reflection of his anti regulatory outlook on life. So not not terribly surprising, but very strongly word concurring and dissenting opinion.

For sure, the landowners can sue in state court under state law, but they need e p A approval and how big it catches that, as a leader pointed out in his concurring opinion, at this point, the landowners really can't proceed any further without ep A sign off, and e p A rejected the proposed additional remedy that the landowners wanted before, so there's no reason to believe that e p A is going to approve at least what the landowners had previously proposed. Now they may come up

with a new proposal. But as they go back, you know, the Supreme Court has sent this back to the Montana Supreme Court for further proceedings. And it looks to me like either the land owners are going to have to go to e p A right now before they go any further in state court, or the state court is going to have to dismiss the landowner's case unless and until they get e PA's approval. That appears to be

where we are at this point. So then so much depends on who's running the e p A and what the attitude of the e p A of the moment is. So that seems like a defeat for the landowners, then I think it's a partial defeat for sure. I Mean, what they were counting on is a green light to just go forward with their case and prove their case in state court and get an award from state court.

And it doesn't look like they're going to be able to do that, And it also doesn't look like they're going to be able to persuade e p A of the kind of work that they want to do on their own property, which may, according to e p A, interfere with the approach that e p A has taken to the clean up of the site. And of course that's part of this big settlement agreement UM with our

Atlantic rich Field. And I think it's gonna be hard to convince e p A that additional remedies are needed, but at least the Supreme Court has given the landowners the opportunity to try that. Does this decision give enough certainty to companies that if they agree to a clean up lan with the e p A, that it's definite that they don't have to worry about paying more in the future. No, it doesn't, and I think that's one thing that bothered Aldo. It still leaves a crack in

the door. You know, after how many years, some twenty some years, this site has been on the National Priority List and being quote cleaned up and the works still not done. There's still many years left of work to do.

So there's now still the uncertainty about whether a landowner could actually make a compelling argument, as you say, either to this e p A or to a future e p A, that the remedy doesn't go far enough for them and that their groundwater, they're drinking water, or their use of water on their land is not saying I mean, we are talking about arsenic after all, this is a serious threat. So yeah, I think this case does create

uncertainty for settlements, particularly for these very expensive cleanups. Does the decision give enough guidance? Is it clear enough for federal courts state courts that have to interpret it in the future. I don't think so. The case has left open the question what would happen if the landowners propose a new plan for clean up on their property that EPA disapproves. Can the landowners challenge the fact that e p A has refused to let them pursue that remedy

or not? We don't know the answer to that. Thanks Pat. That's Pat Parento of the Vermont Law School. The Supreme Court gave environmentalists a partial wind on the scope of the Clean Water Act. Joining me is Greg star Bloomberg, new Supreme Court reporter. So, Greg, this was about a water treatment facility in Hawaii. Tell us the background. The

background is this this facilities in Maui. It's about a half mile from the ocean, and it dumps wastewater into wells underground, and the water then travels through the groundwater and eventually gets into the ocean, and environmental to say they have studies that show it is doing serious damage

to coral reefs there. And so the question is whether the Federal Clean Water Act requires that the facility have get a federal permit to do that sort of thing, and if they do have to, they'll be subject to some significant restrictions. Did this turn on basically the interpretation of one word. It did, and the word is from

uh federal law. The Clean Water Act says UH that UH if UH pollution goes from what's known as a point source, which is a you know, kind of a main source of of discharge to a waterway, then it's subject to the permanenting requirements under the Clean Water Act. And so the question as well, you know, here the treated wastewater didn't go directly into the ocean. It went through that half mile of groundwater first. And the question was basically is that coming from the treatment facility? And

so what did the justices decide? They decided, well, maybe, um, you know, the the argument was one a few months ago where the court didn't the justices at least the ones in in the middle of the court didn't seem like either side's argument. The both sides kind of went too far. On one hand, you had the Trump administration and Maui County saying, look, it's got to be direct. If the if it doesn't go directly from the pipe into the river or the ocean or whatever, uh, then

it doesn't qualify. And meanwhile, the federal appeals court in California, the Ninth Circuit, had said, well, as long as it's fairly traceable to that source, that's enough. And what the Supreme Court said was, you know, we're gonna we're gonna say it doesn't have to be direct, but it needs to be functionally equivalent of direct. So if it's pretty close, if the facility you know, dumps it out and it doesn't have to go very far to get into the

ocean or the river or whatever, uh, that qualifies. And so they then kicked the case back to the the federal appeals court to figure out whether the Maui facility met that standard of being functionally equivalent to a direct discharge. So that's a partial win for environmentalists in this case, But is it a full blown wind for environmentalists in the future when there are other cases like this. Uh. Yeah,

they seem very happy with this. The lawyer David Hankin, who argued the case, predicted that that they're gonna win when they go back to the appeals court, and that this is you know, really a big victory, uh, in that it keeps the Clean Water Acts still operating to regulate some of these polluting facilities. The the Trump administration's rule and actually Malay County win even further would have sharply curtailed what they covered, what e p A could regulate,

what environmental groups could sue over. Given that this is a pretty conservative court environmentalists, we had reason to fear they might have had a result like that, but it didn't turn out that way. Instead, the court left still a fairly robust Clean Water Act and the decision was six to three. What was the line up, So it was the Court's liberals in the majority, with Stephen Bryer writing the opinion, and they were joined by John Roberts,

the Chief Justice, and Brett Kavanaugh. Uh So, you know, this is the case where we kind of have a court that we might have predicted when Kavanaugh joined the Court where at least occasionally, Um, the Liberals would would win victories, bringing over the relative moderate Justices Kavanaugh and Roberts the Morgans servative ones groc Thomas Alito dissented. UH said that the Clean Water Act is is not as expansive as the majority said. I wonder if the liberals

cheer every time Justice Roberts sides with them secretly. I'm sure they're they're they're at least relieved. And you know, I think, you know, Justice like Briar, who wrote this opinion, Um, you know, clearly thinks and knows he can work with the Chief Justice in at least some cases. There are some cases where they're just not going to see the

eyed eye. But here you could sort of see them going back and forth during the argument back in the fall, where um, you know, the Chief Justice clearly wasn't satisfied with what either side of the in the case was arguing.

But but he was also wondering whether Justice Briars standard that he threw out, which during the argument, UH was going to be specific enough, and apparently Justice Briar persuaded him that indeed there were clear enough standards that we could go with this functionally equivalent standard tell you that what happens behind the scenes is often far more interesting than what we get to see from the oral arguments

and from the decisions. The Supreme Court overturned a decades old precedent, deciding that states must require unanimous juries to convict defendants of serious crimes, but the six to three decision highlighted deep divides among the justices over adhering to their past opinions. Joining me is Bloomberg. Supreme Court reporter Greg store So, Greg tell us a little about the case.

There were two states, Louisiana and Oregon, that for some crimes still said that an eleven and one or even attended to jury verdict is enough to convict somebody, and the Supreme Court, over ruling in nineteen seventy two ruling that had allowed states to do that, they said to that is a violation of the Constitution six Amendment. Greg was an unusual line up six to three, with Chief Justice John Roberts and Justices Samuel Alito and Elena Kagan

in the descent. Was their descent related to the issues presented or to whether precedent should be followed here? It was really about the latter. Justice Alito wrote for the group, and most of what he focused on was not whether the nineteen seventy two decision was correct, but whether this would be too much of a burden on Louisiana and Oregon to have to change their systems and to have

some convictions called into question. Justice Alito said that there was a real reliance interests, that there are thousands of cases that could potentially be upended or at least affected by this ruling, and that notion of adherence to precedent's starry descizes is something that is one of the most important issues for the Court going forward. Very interesting to

me that that was how they divided in this case. Well, Justice Kagan has been sort of talking up the importance of precedence for a while, But seeing the Chiefs and Alito agreeing with her about precedent, does that vode well for some of the cases the Court is going to decide involving, for example, abortion rights at least a marker. It's very very interesting. Justice Kagan is really the Court's champion of starry decisive right now. She consistently says, let's

not overturn precedence, Let's not overturn precedents. Justice Alito is somebody who has been willing to overturn precedents. You may recall he wrote the ruling a couple of years ago in a case called Janie that said that if you're a government employee, you have a constitutional right not to pay fees to your union to cover the cost of

representation and not overturned an earlier Supreme Court decision. And then Chief Justice Roberts is somebody who you can sort of see Justice Kagan often trying to persuade to bring over onto her side. He is somebody who also doesn't want to overturn more precedents than the Court really needs to. So it's a bit of a monthly collection there, but

definitely something worth watch going forward. Now. Justice Neil Gorsuch wrote the opinion for the Court, and he said that starry decisive isn't supposed to be the art of methodically ignoring what everyone knows to be true. Yeah, he made interesting Yeah, he made the point that nobody was really

defending this nineteen seventy two ruling. It was a bit of an odd One is a case called Apodaca, where the ruling was four one four and the one was Justice Louis Powell, who adopted an approach that really nobody else agreed with, and over the two decades, the Court pretty clearly as a whole didn't agree with his approach, and yet that president still stood letting states allowed non

unanimous jury verdict. So Justice of course it was making the point that, look, nobody agrees that this should still be the law here. You know, we shouldn't do some mechanical application of of starry decisives and stick with it. We should do what's right and overturn it. So now only two states, Louisiana and Oregon, have this kind of rules. So what does this mean on the ground. Yeah, and

they don't even to have it for everything. Leanna, for example, requires unanimity for crimes committed in twenty nineteen or later, so this only applied to previous crimes. One issue of the Supreme Court left open is whether it will apply retroactively to convictions that have already gone up on appeal

and been finalized. Justice Course has suggested pretty strongly that it would not apply retroactively, and Justice Kavana, on a concurring opinion, flat out said it would not apply retroactively, but the dissent by Justice on Leado said, boy, I'm not so sure about that. Based on our precedency, it might apply retroactively. And that's what I'm really worried about, is this prospect that thousands of convictions will be overturned. How about the prospect that in the controversial cases that

are coming up, we're going to see a lot of opinions. Yeah, this really doesn't bode well for for the court. Speaking with consensus type opinions, they were all over the map. We haven't even talked about some of the other opinions, Justice Thomas, Justice, so do my your You know, a lot of people wanted to say something. This Court hasn't yet sort of hit its rhythm in terms of having justices agreeing with one another on large numbers of points.

Where still at the point with this court where we have a lot of different justices going off in different directions, and we saw that into this opinion. So which justice did not write a concurring opinion? Oh, let's see George's Justice Ginsburgh didn't write, Justice Brier didn't write. They just went along with what Justice Corsage said. One of the interesting dynamics of this is that with the exception of Justice Keig and the more liberal justices were with justice

corsets in the majority. Part perhaps because this is an issue that a lot of people think, including justice courses to Kavanaugh ends up hurting racial minorities. It hurts lack defendants injurors because it means that if there's only one or two black jurors on a jury and they take a different view from the majority, that they may not be able to stop a guilty verdict from going forward. Thanks Greg, that's Bloomberg New Supreme Court reporter Gregg's store.

Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg