Supreme Court Fills Up Docket With Environmental Cases

its current term. We've already seen oral arguments on a few environmental cases, but get ready to see several more. The Court just agreed to hear two more environmental cases last week. That makes six cases currently outstanding on its docket right now. Bloomberg Law's Ellen Gilmer recently wrote a story rounding up all these cases and summarizing the storylines behind them. I spoke to her about why the Court's

environmental docket is so active this term. But first I started by asking her about a climate change case that the justices will hear one day before President elect Biden takes office, giving the Trump administration one final chance to argue before the Supreme Court. It's just an issue of timing. Yeah,

it's an interesting climate change related case. It's really a procedural case that's at the Supreme Court, and that's when the Supreme Court scheduled arguments, So the Trump administration has a chance to argue alongside the oil and gas industry in that case. It's a lawsuit that Baltimore filed against a number of oil and gas companies a couple of

years ago. This is the City of Baltimore, the City of Baltimore saying that the industry should be on the hook financially for the local impacts of climate change, so flooding and heat waves that Baltimore is experiencing. So, without going into all the procedural details, there's this big procedural mess that's been happening in the litigation. There's a fight over state versus federal court and where the case belongs, and there are some really technical issues related to that

that have come up in several different court cases. And so the Supreme Court decided to get involved in that mess. But I guess you know you mentioned this is an issue of timing. I wonder if the fact that the Trump administration lawyers are allowed to argue in this case will have any impact on the outcome, or if it's just a quirk of you know, who gets to argue the government side, Well, the Supreme Court pretty much always grants the Solicitor General's requests to argue in a case,

so it's not surprising that it got granted here. It's not clear that the government's involvement will be a deciding factor in the case. It's a very wonky issue of jurisdiction and pellet courts and the scope of a pellet review. So it's likely that the justices on the Supreme Court have like some pretty strong ideas about all of that already.

But it is I mean, it's certainly interesting just to see the timing because the incoming Biden administration it hasn't come in on this specific procedural issue that's before the Court, but it has more generally expressed support for climate litigation from cities like Baltimore. Okay, let's get into what's happening after January twentieth and the inauguration. You had a great story recently just sort of going into how the Court's

environmental docket for this year is pretty full. But I get the sense that while they have a lot of environmental cases, they don't have any big blockbusters, like there's no Massachusetts vipas on their docket? Is that the case? Am I reading that right? I think that's a good way to put it. There is definitely no mass VPA. There is definitely not even you know, a County of Maui type case, which was a big Clean Water Act case last term. There's nothing that's at that level. But

there are some really important cases. And after the Supreme Court recently added two more environmental cases to its docket, we decided, like, WHOA, there's a lot going on here. We better break all this down because there are actually so so many interesting ones to watch right now. We already talked about the Baltimore case, which is kind of

a climate adjacent case. And then we've got a couple of water cases where you have states that are fighting with each other over different shared water basins and who gets the right to how much water. One of those cases has already been decided, another one is set for oral argument next month, and we should say we're going to get into that in just a second. That's in

a really interesting case, definitely. And then the Supreme Court also just added a case that has to do with the Renewable Fuel Standard, which is a fun wonky issue and another case that has to do with a superfund, which is interesting because the Supreme Court historically hasn't been super interested in superfund cases. But it just took up a different super fun case last term, and here it

is again taking up a super fun case. This one has to do with Guam and who and whether Gua or the United States should have to pay to clean up this big landfill mess. So I want to focus on the renewable fuel case just because that's something that I'm interested in. The super fun case sounds very interesting, but you know, let's just let's talk about this one.

For those that aren't familiar, the renewable fuel standard is a program that the government has that mandates that, you know, a certain percentage of gasoline be made with renewable fuels and mainly that's ethanol made from corn. And you know, this has created a lot of conflict between the fossil fuel industry and oil refiners versus farmers. Farmers want their their percentage to be higher, oil refiners want the percentage to be lower. So what's this case before the Supreme

Court about? And could this actually like, you know, change the way this program works or is this just you know, a technical case on the margins. It's a narrow issue, but it has really high stakes. It would change, It could change the way EPA gives some refiners waivers, gives them a break from meeting annual quotas. So basically, like you said, the renewable fuel standards, that's these annual quotas for blending and biofuels, and refiners can either meet the

quota or they can purchase credits. But sometimes EPA will issue a waiver to say, like we see that this is going to be really hard on you, We're going to give you a break. And there's a bunch of criteria that feeds into that. About a year ago, there was a really important decision from the Tenth Circuit, which is the circuit court that's based in Denver, that said, the eligibility criteria for these waivers is actually super like

much narrower than what EPA had been applying. So the Tenth Circuit said a refiner could only get a waiver if it had been continually receiving waivers in the past. So that's good news for farmer, for corn farmers, especially bad news for oil refiners. So oil refiners say that, like, if this is the standard and if this idea, if this approach were applied nationwide, only a handful of us would even ever be eligible, and like some of us would go out of business. Small refiners would go out

of business. So it's very high stakes. The refineries are extremely excited that the Supreme Court decided to take up their case and hear them out, and so that's definitely one one to watch. It's not going to restructure the whole the standards, but it is going to affect the way their apply the way that the waivers for the standards are handed out. And before we move on from this, it's I think it's always notable to point out that this is an issue that former talk show host and

automobile enthusiast Jay Leno is very passionate about. He is against the renewable Fuel Standard because apparently he says that putting fuel that contains ethanol into cars produces their performance and that is something that he doesn't like. So Jay Leno Renewable Field Standard Cruisader may be watching this case. Let's move on to a case that's going to be come up. It's gonna come up for oral argument next month. This is a case I think the t the caption

is Florida v. Georgia, and this is over water. As you mentioned earlier, this has been going on forever. What's you know? Briefly outline this and talk about the steaks here. In short, it's about a shared water basin. It's the Appalachicola Chattahoochee Flint River basin which flows from Georgia to Florida. And in essence, Florida says Georgia is using too much water. That would be Georgia businesses and farmers in particular are

using too much water. There's not enough water going downstream, and Florida's valuable oyster industry in the Panhandle is suffering because of that. Right, they're saying that the estuary that dumps into the Gulf is drying up right, So the

stakes are obvious for Florida and Georgia. How much water do the Georgia farmers get to use, how much water gets to go downstream and is available for where the oysters and the oyster industry, and kind of zooming out and looking at it more broadly, what we've heard from water law experts is that cases like this in general, these kind of water fights between states are likely to increase as climate change stresses water supplies. As both climate

change and kind of population density patterns and stuff. As those different changes stress existing water supplies, you'll see more fights over which state has the right to how much water. So Florida Georgia is just an example of one of those fights happening in the East, and it could really set the tone for how much leverage a downstream state like Florida has in this kind of fight. I actually, I knew it was very high stakes for Florida and Georgia,

but that's even higher than I thought. This could set a precedent for other states. And you know, you're right, we're going to see a lot more of these state versus state lawsuit lawsuits over water in the future. That's that's a big deal. So that's coming up next month. Finally, let's take a step back here. You know, as we mentioned at the top, you know, the Court is accepting a lot more environmental cases. It seems like, or maybe you know, just slightly more than usual. Why do you

think that is? It seems like the current court as it's configured, seems kind of eager to jump into these questions on environmental statues. Is that the case and it's so why I'm not sure if there's really anything to be read from the cases on the court stock at

this term. I do think the Maui case from the last term, which focused on the scope of the Clean Water Act, I think that was definitely an example of the Court looking at an environmental statute that feeds like an endless stream of litigation in saying like, we need to clarify this at least this one particular particular conflict that's rising out of it. So that was an example

of it. These cases this term are all just a little bit wonkier and don't get to the core of the statutes quite as deeply, So I'm not sure it indicates anything like that. It's more just a matter of circumstance that all of these high stakes fights were brewing at the same time and the Court needed to fill up its stocket. That's a good point. I guess. You know, you and I cover the environment, and so we always hear about all these statutes that are really vague and

where the case law is confusing. But I'm sure there are other aspects of the law that you and I don't cover where there's also vague case law and vague statutes. So you know, the court always has a lot on its stocket. So it sounds like what you're saying is just, you know, just potentially a coincidence that we have all these cases, you know, and there's not we can't necessarily

read into anything just yet. I would watch for I would watch the docket in the future for some of those bigger cases because I do think the justices, many of the justices are eager to dig into some of the more contentious provisions of environmental statutes, especially in the

Clean Air Act. So I think we'll see as the Biden administration starts to enact its policies and unwind Trump era policies, we'll see some new fights set up, and we'll see more of those like really high stakes environmental law issues that the justices, like maybe have been eager to get their hands on. That's it for today's episode of Parts per Billion. If you want more environmental news, check us out on Twitter. We use a relatively easy

handle to remember. It's just ad environment. That's our handle ad environment. Just that if you want to talk to me, I'm at David B. Schultz. Today's episode of Parts Pavillion was produced by myself and Josh Block. Parts per Billion was created by Jessica Coombs and Rachel Daegel. The music of today's episode is a message by Jazar and running by Enrico Pierra Nuzzi and Silvano Chiamente. They were used under Creative Commons license. Thank you everyone so much for listening.

This is Adam Allington and I'm here to announce a new season of Uncommon Law, a narrative podcast series from Bloomberg Law. My co host and I will speak with African American attorneys and hear their perspectives on how big law is for in some cases, isn't adapting to become more diverse and inclusive. It's not fair, But what can be better than being on the front lines of helping to make this country better for all of us? If

not us, who, If not now? When? Just search for Uncommon Law wherever you get your podcasts.