For environmentalists, the recent Supreme Court term was a shutout — 0 for 5. That is, all five of the “green” cases argued before the Court this term were decided against the environmentalists’ positions.

The defeats were especially painful in that all five decisions reversed lower court decisions in favor of the “greens.” Writing for the National Law Journal, Marcia Coyle reported that “The justices granted review at the behest of business, even when the solicitor general of the United States recommended denying review.”

One of the five cases was Entergy Corp. v. Riverkeeper, which reversed a decision of the Second Circuit Court, a panel that includes Supreme Court nominee Judge Sonia Sotomayor. In this case, the Supreme Court decided the Clean Water Act allows the Environmental Protection Agency to use cost-benefit analysis in decided what means it would use to protects rivers and lakes near power plants.

None of the five cases specifically dealt with asbestos contamination of the environment. But one decision that might be of concern to people suffering mesothelioma and other asbestos-related diseases is Burlington Northern Railway/Shell Oil Co. v. U.S.. This case concerned who would pay for an environmental cleanup of toxic substances.

In the 1970s and 1980s, a company called Brown & Bryant purchased chemicals from Shell Oil Co. and stored these chemicals on parcels of land owned by itself and also by Burlington Northern & Santa Fe Railway Company and the Union Pacific Transportation Company. The chemicals leaked onto the property, and eventually the EPA spent more than $8 million to clean it up. The EPA also ordered the two railroad companies to perform several tasks involving the properties, at a cost of $3 million to those companies.

The railroads sued the now-defunct Brown & Bryant to recover costs, and that suit was consolidated with suits brought by the state of California and the EPA against Shell and the railroads. The two issues these cases presented to the Court were, first, whether Shell bore any liability for the cleanup of the chemicals; and second, whether the courts could impose joint and several liability in this cost-recovery case. Very briefly, in tort cases, “joint and several liability” means that where there are several defendants, a claimant may recover all damages from any of the defendants regardless of their individual share of the liability.

In their interpretation of the Comprehensive Environmental Response, Compensation, and Liability Act (”CERCLA”), the Supreme Court reversed the lower courts and said Shell could not be held responsible as an “arranger” of the environmental hazard, even though Shell continued to sell chemicals to Brown & Bryant knowing the chemicals were not being properly stored. Under the language of CERCLA, the justices said, Shell would have been responsible for the cleanup only if its intention was to dispose of the hazardous chemicals by selling them to Brown & Bryant. In other words Shell did not arrange for the chemicals to be disposed, the Court said.

The Supreme Court also reversed the Ninth Circuit’s decision that the railroads were jointly and severally liable for the full cost of the governments’ response efforts. The issue of joint and several liability often applies to asbestos litigation cases, so the Court’s thinking in this case may be a concern. Certainly the issue of who pays for environmental cleanups also sometimes applies to asbestos contamination. This was an 8-1 decision, with only Justice Ginsburg dissenting.

In the three other cases the “greens” lost, the Court ruled that environmental groups lacked standing to challenge certain U.S. Forest Service regulations; lifted an injunction limiting the Navy’s use of sonar near marine mammals; and sided with a gold mine operator who argued that the Army Corps of Engineers could issue dumping and dredging permits without satisfying the EPA’s more stringent pollution permit limits.

Barbara O’Brien

June 28, 2009