Posted by Jonathan Adler:
Has the Roberts Court Been "Pro-Business" in Its Environmental Decisions?
http://volokh.com/archives/archive_2009_01_18-2009_01_24.shtml#1232838104
My own remarks at the Santa Clara Law Review Symposium on [1]�Big
Business and the Roberts Court� focused on two questions. First, what
does it mean to say that the Roberts Court is �pro-business? Second,
is there evidence of a �pro-business� orientation in the environmental
cases decided by the Roberts Court thus far. I noted the usual
caveats, of course, particularly the difficulty in reaching any
definitive conclusions about the Roberts Court after only three years,
and concluded that the environmental decisions of the Roberts Court
show no evidence of a purported �pro-business� orientation. A summary
of my remarks is below the jump.
Click to show remainder of post.
Since the publication of Jeffrey Rosen�s NYT magazine article,
[2]�Supreme Court, Inc.� � if not even before � claims that the
Roberts Court is a �pro-business� court have become quite common. It
certainly appears that the Roberts Court is more interested in
business-related cases than its predecessors in business-related
cases. Such cases, however defined, appear to occupy a greater
proportion of the cases accepted for review, a trend no doubt
augmented by diminished size of the Court�s docket. As the Court takes
fewer cases overall, the same number of business-related cases will
occupy a greater share of the Court�s work.
Most of those who charge the Robert Courts is �pro-business� no doubt
mean something more, particularly that the Roberts Court has shown
itself to be substantively �pro-business� in its decisions. But does
this mean that the Roberts Court favors business litigants? Or that
the Roberts Court�s decisions embody legal rules that are generally
favorable to business interests. These are not the same thing. In the
area of antitrust law, for instance, all but one of the cases decided
by the Roberts Court involved one business suing another. So it is
hardly surprising that a business litigant emerged victorious in each
of these cases. Of greater relevance is that a business defendants won
in each of these cases, but this does not resolve the matter, for the
identity of the litigants in a given case are not necessarily a good
proxy for the decision�s broader effects on various interest groups.
Some business groups were among those supporting the petitioners in
[3]Massachusetts v. EPA, but this hardly shows that the Court�s
decision in that case was �pro-business.�
In evaluating claims that the Roberts Court is �pro-business� it is
also important to ask the question �compared to what?� Depending upon
one�s baseline, the claim that a court is �pro-business� can mean
quite different things. Among other things, it is important to
consider whether the Court is moving the law in a more
business-friendly direction, or simply refusing invitations to expand
less business-friendly legal doctrines. There is a difference between
eliminating a long-standing cause of action against business
defendants and refusing to open the door to a new generation of suits
against corporations. Both are, in a sense, �pro-business,� but they
are quite distinct.
It is likewise important to consider whether in rendering
�pro-business� decisions the Court is itself shifting the law in a
pro-business direction or merely ratifying a pro-business legislative
deal or administrative ruling. While the former may be evidence of an
actual �pro-business� bias, the latter may illustrate nothing more
than deference to the political branches, and may only yield
�pro-business� outcomes so long as the political branches are
sympathetic to business interests. Thus a highly deferential court may
seem quite �pro-business� when upholding the decisions of
Republican-controlled agencies, but much less so once a Democratic
administration is in control. Data showing that the Court often sides
with the Solicitor General�s office in business cases could well be
evidence that the Court is more deferential to the SG than it is
objectively �pro-business.�
Another distinction to keep in mind is whether the Court is adopting
business-friendly default rules, or entrenching pro-business rules.
So, for instance, there is a meaningful difference between decisions
in which the Court adopts a statutory interpretation favored by
business interests, and which Congress retains the ability to overturn
(as with the Ledbetter case) and decisions in which the Court
announces a substantive rule of constitutional law that benefits
business (as in some of the punitive damages cases). In the former
instance the Court may be doing nothing more than deferring to the
legislature on whether to shift the law in a less business-friendly
direction. In the latter, the Court is entrenching a substantive rule
that will benefit business forever. Insofar as the vast majority of
cases in which the Roberts Court has adopted �pro-business� outcomes
are of the former variety, this should inform our assessment of the
extent to which it is a meaningfully �pro-business� court,
particularly as recent political shifts may portend a less
business-friendly legislative and executive branch.
With these distinctions in mind, it is worth considering whether there
is evidence of a pro-business orientation in the Roberts Court�s
environmental decisions to date. Environmental cases may be worth
particular attention as, unlike some business-related areas, we may be
less likely to see cases in which the justices various ideological
commitments are in conflict. That is, if we generally expect
conservative justices to be more �pro-business,� we may also expect
them to be less sympathetic to environmental regulation, thus making
any tilt in the Court�s orientation easier to observe. Of course the
usual caveats still apply. The Roberts Court has not considered all
that many environmental cases thus far that impact business interests
� between 11 and 14 depending on which cases one chooses to count
(because some cases, such as [4]Winter v. NRDC don't directly impact
business interests), with four more still pending this term.
Furthermore, viewing environmental cases as posing business interests
on one side and environmental interests on the other is overly
simplistic, as many environmental regulatory programs were supported
by business and business interests often stand to gain from
�pro-environmental� rulings. Nonetheless, it is fair to say that in
most environmental cases, the side we consider to be �pro-business�
will be opposite from that advocated by most environmentalist groups.
Finally, and perhaps most importantly, whether a given case embodies a
�pro-business� outcome is an entirely different question from whether
the decision was substantively correct. In my opinion, many of the
cases in which business interests lost were correctly decided, but the
merits of individual cases was not the focus of the symposium or my
remarks.
So, looking at the environmental cases, what do we see? Taken
together, the Roberts Court�s decisions in environmental cases show no
evidence of a pro-business bias or orientation. The Roberts Court
sided with business interests in only five of the eleven cases
directly pitting business against environmental concerns (and only six
of the fourteen cases if we include those cases in which business
interests are only affected indirectly). If we step back from the
numbers, and consider the substantive effects of the cases, there is
even less evidence of a business-friendly approach. Most of the
business wins occurred in relatively narrow cases that had little
effect on pre-existing law, while several of the losses are quite
dramatic and will have profound effects on economic interests.
Consider the three most significant business �wins� in environmental
cases. In [5]Exxon Shipping v. Baker the Court unanimously rejected
Exxon�s claim that punitive damage awards were preempted by federal
law and confined its holding limiting punitive damage awards to cases
arising under the federal common law of maritime. The Court�s decision
in [6]NAHB v. Defenders of Wildlife imposed a significant limitation
on the application of the Endangered Species Act to pre-existing
statutory obligations, but in doing so it affirmed historical agency
practice and long-standing lower court decisions on the question. In
[7]Rapanos the Court adopted a potentially significant limitation on
federal jurisdiction over wetlands lacking a �significant nexus� to
navigable waters, but also reaffirmed that U.S. Army Corps of
Engineers and Environmental Protection Agency retain substantial
authority to define �substantial nexus� so as to reclaim much of the
jurisdictional ground that was lost. Insofar as these decisions are
�pro-business� they are all quite modest. Solid base hits, to be sure,
but not home runs.
Contrast the cases in which business emerged victorious with those in
which business lost. The most important environmental case decided by
the Roberts Court � indeed, one of the most important cases of any
sort decided in the past three years � was [8]Massachusetts v. EPA, in
which the Court both loosened the standing requirements for litigants
seeking greater federal regulation, expanded the scope of the Clean
Air Act to cover the most ubiquitous by-products of industrial
civilization and virtually required federal regulation of greenhouse
gases. As a substantive matter, this case alone is more adverse to
business interests than all of the business �wins� put together.
Several singles don�t matter all that much if one�s opponent responds
with a grand slam.
Yet Mass v. EPA was not the only loss for the business community. The
Court rebuffed challenges to the application of environmental laws to
various business activities, as in [9]Duke Energy and [10]S.D. Warren,
and in others the Court either expanded the government�s ability to
impose on business interests or limited the ability of businesses to
challenge government regulations, as in [11]BP America Production,
[12]John R. Sand & Gravel, and [13]United Haulers. Other environmental
cases in which business interests were not directly at issue, such as
[14]Wilkie v. Robbins could also be seen as embodying a substantive
rule that is adverse to business interests. In Wilkie, for instance,
the rejection of a Bivens cause of action for the BLM�s harassment of
a ranch owner could well strengthen the hand of government agencies
vis-� -vis resource-dependent industries that operate on federal
lands.
There is no evidence of a �pro-business� orientation in the
environmental cases decided by the Roberts Court to date, but there
may be evidence of something else. One thing that is quite striking
about the environmental cases is the rate at which the government was
on the winning side. The federal or state government was victorious in
nearly every case in which business interests lost. The one exception
is Mass v. EPA in which the federal government�s position lost, but
the cause of greater government regulation nonetheless advanced. Where
business interests won, government interests were typically absent, or
on the business side. So, for instance, in the NAHB case, the Court
adopted the Bush Administration�s interpretation of the Endangered
Species Act, and in Exxon Shipping the Solicitor General�s office did
not file a brief. Rapanos is certainly an exception to this trend.
Yet, as already noted, the decision reaffirmed broad regulatory
authority to define the scope of federal jurisdiction. The feds lost
in a Superfund case, [15]Atlantic Research, but it is difficult to
argue that the federal government�s broader interests were set back by
the Court�s decision. The same could be said for the Court�s decision
rejecting jurisdiction over a whistleblower suit under the False
Claims Act in [16]Rockwell.
In sum, there is no evidence that the Roberts Court has adopted a
substantive pro-business orientation in its environmental cases � at
least not in those decided thus far. This is a tentative conclusion,
however. There are four environmental cases still pending this term,
concerning the use of cost-benefit analysis, Superfund liability, the
scope of the Clean Water Act, and citizen suits concerning the
management of federal lands, and business interests could well sweep
the table (though I consider this unlikely). Further, the lack of a
pro-business orientation in the environmental context does not mean
the Court is not more business-friendly in other areas, perhaps such
as preemption or securities litigation. Yet while there are no signs
of a business-friendly approach to environmental cases, there are
signs the Court tends to side with the government. If such a
conclusion is warranted, then whether the Court hands down
business-friendly decisions may depend on whether the political
branches are or continue to be receptive to business interests.
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References
Visible links
1. http://law.scu.edu/lawreview/symposium.cfm
2.
http://www.nytimes.com/2008/03/16/magazine/16supreme-t.html?ei=5124&en=d190df9f4b5bdc61&ex=1363492800&partner=permalink&exprod=permalink&pagewanted=all
3. http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf
4. http://www.supremecourtus.gov/opinions/08pdf/07-1239.pdf
5. http://www.supremecourtus.gov/opinions/07pdf/07-219.pdf
6. http://www.supremecourtus.gov/opinions/06pdf/06-340.pdf
7. http://www.supremecourtus.gov/opinions/05pdf/04-1034.pdf
8. http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf
9. http://www.supremecourtus.gov/opinions/06pdf/05-848.pdf
10. http://www.supremecourtus.gov/opinions/05pdf/04-1527.pdf
11. http://www.supremecourtus.gov/opinions/06pdf/05-669.pdf
12. http://www.supremecourtus.gov/opinions/07pdf/06-1164.pdf
13. http://www.supremecourtus.gov/opinions/06pdf/05-1345.pdf
14. http://www.supremecourtus.gov/opinions/06pdf/06-219.pdf
15. http://www.supremecourtus.gov/opinions/06pdf/06-562.pdf
16. http://www.supremecourtus.gov/opinions/06pdf/05-1272.pdf
17. file://localhost/var/www/powerblogs/volokh/posts/1232838104.html
Hidden links:
18. file://localhost/var/www/powerblogs/volokh/posts/1232838104.html
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