The Supreme Court's Water Pollution Jurisprudence: Is the Court All Wet?
By Jeffrey G. Miller
INTRODUCTION
Some of my environmental law colleagues have long lamented that the Supreme Court is anti-environmental. This assertion always struck me as unlikely. Why would nine intelligent, thinking persons be against the environment that nurtures us all? But then Professor Richard Lazarus began counting and demonstrated that a decided majority of the Court's environmental law decisions have anti-environmental results. Statistics alone, however, do not indicate that the Court has an anti-environmental bias. As Lazarus suggests, the statistics could reflect the resolution of conflicts between environmental values and other social or legal values embodied in the Constitution, statutes, or cross-cutting legal doctrines. Such conflicts would inevitably lead to some decisions counter to environmental values. A more qualitative analysis of the Court's opinions might suggest whether resolution of diverging values or an anti-environmental bias explains the majority of the Court's decisions.
At the same time, some of the Court's environmental law decisions misconstrue the environmental statutes. Perhaps the environmental statutes are too long and complex for the Court to grasp. Years ago my tax law professors complained that “the Supreme Court just does not understand the Internal Revenue Code!” When many full-time tax practitioners cannot comprehend the Code in its entirety, it may be too much to expect that the part-time tax practitioners on the Court could do so. Perhaps the sheer volume and complexity of environmental law, which rivals tax law, makes it equally difficult for the Court to comprehend. As a result, I have similarly complained to my students that “the Court just does not understand the Clean Water Act” (CWA). Perhaps the concern of my colleagues with the apparent anti-environmental tilt of the Court's decisions and my own concern with the Court's apparent misunderstanding of environmental statutes are related. The Court may not understand environmental law and thus be prone to analytical error, which in turn could lead to anti-environmental decisions. On the other hand, the Court could mistakenly or purposefully misconstrue an environmental statute to reach results-oriented, anti-environmental decisions. Again, a more qualitative analysis of the Court's opinions may suggest why the Court's environmental decisions sometimes contain analytical errors and the relationship, if any, between the errors and anti-environmental results.
A qualitative analysis of the over 240 cases Lazarus counted is beyond the scope of a single law review article. A qualitative examination of the Court's decisions under the CWA, however, is perfectly suited for this task. The Court has rendered twenty-three decisions under the CWA, more than any other statute implemented by the Environmental Protection Agency (EPA), enough to form a critical mass susceptible to analysis within a single article.
Most of the Court's early CWA opinions decided before 1980 involved relatively simple issues of statutory interpretation. Additionally, these decisions were relatively unaffected by legal values and doctrines beyond the CWA and were unanimously decided or decided by a strong majority. The results of these early decisions were overwhelmingly pro-environmental. In contrast, many of the opinions decided after 1980 involved more complex issues of statutory interpretation and were often affected by legal values and doctrines extrinsic to the CWA. These decisions were rarely unanimous. The results of these later decisions were overwhelmingly anti-environmental. It is tempting to speculate that the change from predominantly pro-environmental decisions to predominantly anti-environmental decisions occurred because of a change in the makeup of the Court, e.g., reflecting a difference between the Burger Court and the Rehnquist Court. However, the change from decisions with pro-environmental results to anti-environmental results occurred in 1980, a year when there were no changes in Justices.
Qualitative analysis of the decisions reveals a surprising level of mistakes in the Court's interpretation of the CWA. In fact, two-thirds of the decisions contain analytical errors, mischaracterizing or acting in apparent ignorance of some statutory provisions pertinent to the issues before the Court. While these mistakes were not always critical to the Court's decisions, the rate of error is greater in the post-1980 decisions than in the pre-1980 decisions and the severity of the errors is far greater in the post-1980 decisions. The rate of mistake is also greater in decisions with anti-environmental results than it is in decisions with pro-environmental results. Furthermore, the severity of the errors is much greater in the decisions with anti-environmental results.
The apparent explanation for the change from decisions with pro-environmental results to anti-environmental results and the increase in the rate and severity of analytical errors in the Court's decisions before and after 1980 is a change in the nature of the CWA cases coming before the Court. Before 1980, all of the cases sought judicial review of EPA actions or appealed federal enforcement of the CWA. After 1980, ten of the fifteen decisions were either citizen suits, private common law nuisance actions against polluters, or appeals of state action. Because EPA action was not at issue in these decisions, the United States was not a party in most of the actions, although it often filed an amicus brief. When the United States was a party, its position did not necessarily represent the EPA's interpretation of the CWA, especially when the federal defendant was sued for violating the CWA.
This suggests that the anti-environmental tilt and the analytical mistakes resulted from a combination of the Court's ambivalence toward citizen enforcement and the absence of the EPA's participation in framing the government's position explaining the CWA, especially in cases in which the Department of Justice represented the government as a polluter rather than as a guardian of the environment and of the CWA. An examination of the briefs filed by the United States in these cases confirms this notion. A similar examination of the Court's opinions under other environmental statutes would indicate whether this is generally the case and might determine which aspect of the combination is dominant.
Part I of this article sets the stage with a brief survey of federal water pollution control, focusing on the CWA. Part II examines statistical conclusions and inferences from a cursory review of the Court's CWA opinions. Part III examines some of the opinions in a more qualitative manner to determine whether the statistical conclusions withstand analysis and whether the Court understands the CWA. The latter determination requires examining the nature and severity of the Court's misinterpretations of the statute. Part IV examines the Court's decisions with anti-environmental results to determine whether they reflect an anti-environmental bias or the other factors suggested. Table A lists the Court's opinions under the statutes administered by the EPA, documenting that the Court's CWA decisions outnumber those under any other EPA administered statute. Table B contains basic information about the Court's CWA opinions, from which the conclusions in Part II are drawn.
Some of my environmental law colleagues have long lamented that the Supreme Court is anti-environmental. This assertion always struck me as unlikely. Why would nine intelligent, thinking persons be against the environment that nurtures us all? But then Professor Richard Lazarus began counting and demonstrated that a decided majority of the Court's environmental law decisions have anti-environmental results. Statistics alone, however, do not indicate that the Court has an anti-environmental bias. As Lazarus suggests, the statistics could reflect the resolution of conflicts between environmental values and other social or legal values embodied in the Constitution, statutes, or cross-cutting legal doctrines. Such conflicts would inevitably lead to some decisions counter to environmental values. A more qualitative analysis of the Court's opinions might suggest whether resolution of diverging values or an anti-environmental bias explains the majority of the Court's decisions.
At the same time, some of the Court's environmental law decisions misconstrue the environmental statutes. Perhaps the environmental statutes are too long and complex for the Court to grasp. Years ago my tax law professors complained that “the Supreme Court just does not understand the Internal Revenue Code!” When many full-time tax practitioners cannot comprehend the Code in its entirety, it may be too much to expect that the part-time tax practitioners on the Court could do so. Perhaps the sheer volume and complexity of environmental law, which rivals tax law, makes it equally difficult for the Court to comprehend. As a result, I have similarly complained to my students that “the Court just does not understand the Clean Water Act” (CWA). Perhaps the concern of my colleagues with the apparent anti-environmental tilt of the Court's decisions and my own concern with the Court's apparent misunderstanding of environmental statutes are related. The Court may not understand environmental law and thus be prone to analytical error, which in turn could lead to anti-environmental decisions. On the other hand, the Court could mistakenly or purposefully misconstrue an environmental statute to reach results-oriented, anti-environmental decisions. Again, a more qualitative analysis of the Court's opinions may suggest why the Court's environmental decisions sometimes contain analytical errors and the relationship, if any, between the errors and anti-environmental results.
A qualitative analysis of the over 240 cases Lazarus counted is beyond the scope of a single law review article. A qualitative examination of the Court's decisions under the CWA, however, is perfectly suited for this task. The Court has rendered twenty-three decisions under the CWA, more than any other statute implemented by the Environmental Protection Agency (EPA), enough to form a critical mass susceptible to analysis within a single article.
Most of the Court's early CWA opinions decided before 1980 involved relatively simple issues of statutory interpretation. Additionally, these decisions were relatively unaffected by legal values and doctrines beyond the CWA and were unanimously decided or decided by a strong majority. The results of these early decisions were overwhelmingly pro-environmental. In contrast, many of the opinions decided after 1980 involved more complex issues of statutory interpretation and were often affected by legal values and doctrines extrinsic to the CWA. These decisions were rarely unanimous. The results of these later decisions were overwhelmingly anti-environmental. It is tempting to speculate that the change from predominantly pro-environmental decisions to predominantly anti-environmental decisions occurred because of a change in the makeup of the Court, e.g., reflecting a difference between the Burger Court and the Rehnquist Court. However, the change from decisions with pro-environmental results to anti-environmental results occurred in 1980, a year when there were no changes in Justices.
Qualitative analysis of the decisions reveals a surprising level of mistakes in the Court's interpretation of the CWA. In fact, two-thirds of the decisions contain analytical errors, mischaracterizing or acting in apparent ignorance of some statutory provisions pertinent to the issues before the Court. While these mistakes were not always critical to the Court's decisions, the rate of error is greater in the post-1980 decisions than in the pre-1980 decisions and the severity of the errors is far greater in the post-1980 decisions. The rate of mistake is also greater in decisions with anti-environmental results than it is in decisions with pro-environmental results. Furthermore, the severity of the errors is much greater in the decisions with anti-environmental results.
The apparent explanation for the change from decisions with pro-environmental results to anti-environmental results and the increase in the rate and severity of analytical errors in the Court's decisions before and after 1980 is a change in the nature of the CWA cases coming before the Court. Before 1980, all of the cases sought judicial review of EPA actions or appealed federal enforcement of the CWA. After 1980, ten of the fifteen decisions were either citizen suits, private common law nuisance actions against polluters, or appeals of state action. Because EPA action was not at issue in these decisions, the United States was not a party in most of the actions, although it often filed an amicus brief. When the United States was a party, its position did not necessarily represent the EPA's interpretation of the CWA, especially when the federal defendant was sued for violating the CWA.
This suggests that the anti-environmental tilt and the analytical mistakes resulted from a combination of the Court's ambivalence toward citizen enforcement and the absence of the EPA's participation in framing the government's position explaining the CWA, especially in cases in which the Department of Justice represented the government as a polluter rather than as a guardian of the environment and of the CWA. An examination of the briefs filed by the United States in these cases confirms this notion. A similar examination of the Court's opinions under other environmental statutes would indicate whether this is generally the case and might determine which aspect of the combination is dominant.
Part I of this article sets the stage with a brief survey of federal water pollution control, focusing on the CWA. Part II examines statistical conclusions and inferences from a cursory review of the Court's CWA opinions. Part III examines some of the opinions in a more qualitative manner to determine whether the statistical conclusions withstand analysis and whether the Court understands the CWA. The latter determination requires examining the nature and severity of the Court's misinterpretations of the statute. Part IV examines the Court's decisions with anti-environmental results to determine whether they reflect an anti-environmental bias or the other factors suggested. Table A lists the Court's opinions under the statutes administered by the EPA, documenting that the Court's CWA decisions outnumber those under any other EPA administered statute. Table B contains basic information about the Court's CWA opinions, from which the conclusions in Part II are drawn.
