Thursday, March 8, 2012

Jeremy Lin and Environmental Cases at the Supreme Court

Jeremy Lin’s stunning rise from an undrafted Ivy Leaguer to an international basketball sensation is the stuff of legends. Having received no scholarship offers out of high school, Lin enrolled at Harvard and enjoyed a relatively successful career on the hardwood in a conference with a reputation, let’s say, for things other than sports. A major professional team last drafted a Harvard player in 1954, and, as noted above, Lin did not end that drought. Lin’s recent successes with the NBA’s New York Knicks are nothing short of remarkable.

As “Lin-sanity” first took hold across the country and around the world a few weeks ago, I had the pleasure of participating in a symposium on judicial takings theory at Widener University School of Law. I found the original impetus for the Widener conference---the U.S. Supreme Court’s unexpected decision to grant a writ of certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection---mirrored the story of Lin’s emergence in both its unexpected nature and its potential to transform perceptions about longstanding institutions.

The ultimate decision in Stop the Beach resolved very little. The Court issued a unanimous opinion upholding the lower court’s rejection of a takings claim, and only mused on the existence and scope of a viable judicial takings construct in splintered dicta. While each of the three separate opinions in Stop the Beach could be interpreted as invitations to the lower courts to grapple with the complicated issues surrounding judicial takings, a review of the forty-three citations to Stop the Beach to date reveals that the lower courts have thus far largely declined these invitations. Of course, however, the conclusion to the story of the Court’s unexpected choice to take up the Stop the Beach case is, as it is in the case of Lin’s story, yet to be written.

As for the other recent cert grants in environmental cases at the U.S. Supreme Court, it was not altogether surprising---to the extent that forecasting cert grants is remotely possible---that the Court decided to hear PPL Montana, LLC v. Montana and Southern Union Co. v. United States. In the former, the Court sought to clarify the navigability-for-title test (a post on the Court’s recent opinion is available here); in the latter, the Court will assess a circuit split on whether only juries, not judges, are authorized to impose criminal fines and fees in the context of prosecutions under the Resource Conservation and Recovery Act (oral argument is scheduled for March 19th). However, the Court’s decision to hear Sackett v. EPA could be considered a “Lin-like” surprise, for it represents the two basic characteristics outlined above. First, the Court unexpectedly is reviewing a Ninth Circuit conclusion---that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders---that seemingly echoes the disposition of all of the other circuits that have addressed the issue. Second, Sackett has the potential to alter in significant ways the process of environmental enforcement under the Clean Water Act and multiple other federal environmental statutes. (The Court heard oral argument in Sackett on January 9th and has yet to issue its decision.)

To the extent readers are interested in considering the most surprising but transformational cert grants in environmental cases at the U.S. Supreme Court over the past several decades, feel free to contribute your leanings in the comments section below.

-Tim Mulvaney

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