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Supreme Indifference

Two long and thoughtful pieces today, one from the Daily Journal, the other from Greenwire, discuss in painful detail the thumping environmental cases suffered at the hands of the Supreme Court this term. In each case, the court overturned a pro-environment ruling from a court of appeals.

The first case involved whether the Navy must protect whales and dolphins from the effects of loud noises. The most recent case, an Earthjustice case as it happens, revolved around a permit the Corps of Engineers awarded to a mining company that allows the company to dispose of toxic mining wastes in an Alaskan lake. In between, the court found that environmental groups didn't have the right to challenge certain Forest Service regulations, that Shell Oil was not responsible for cleaning up a Superfund site in California, and that cost-benefit calculation at a New England powerplant was legal. The decision the court overturned in the last case, incidentally, was written by Sonia Sotomayor, who looks likely to become the next associate justice. In all five cases, the court upheld rules put forward by the Bush administration.

Unfortunately, this is not surprising. Twenty years ago, I helped write a piece (also called Supreme Indifference) for the magazine of the Natural Resources Defense Council. The lead authors, Roger Beers and Rick Sutherland, analyzed several years of Supreme Court rulings in cases brought under the National Environmental Policy Act—and found that the court had ruled against the environment in every single case, usually by unanimous vote.

The high court has actually had only one true environmental champion—William O. Douglas. Why this is is a mystery to me, at least. It's high time it changed.