The pro-business legacy of the 'Bushed' Supreme Court is beginning to reveal itself. The Roberts Court has handed five losses to environmental advocates in five cases before the justices this term. In the past nine court terms, environmentalists have never been shutout. All of the losses were on appeals brought up by business interests after being ruled against in lower courts. Some court watchers are left wondering if the Court is signaling a right turn on environmental causes, or just expressing its displeasure with the Ninth Circuit. The NYT opines, "the court appears poised to move to the right in the Obama era". It is also suggested that business is winning because it uses appellate lawyers who are very familiar to the justices and who are expert in tailoring the cases presented to them, such as former Solicitor General Theodore Olson. Washington is definitely a company town.Although none of the case could be construed a "landmark" some of them do contain significant implications for future environmental law enforcement in what one scholar called a "chipping away at the foundations" of environmental protection. Four of the five cases came from the Ninth Circuit, generally considered the most environmentally friendly:
- Entergy Corp v. Riverkeeper The Court ruled 6-3 that electric utilities may use cost-benefit analysis in regulating water cooling intake structures under the Clean Water Act;
- Coeur Alaska v. Southeast Alaska Conservation The Court ruled 6-3 that the Army Corps of Engineers has the authority to issue permits for dumping and dredging into a lake with satisfying pollution limits set by the EPA;
- Burlington Northern Railway v. US The Court ruled 8-1 that the Superfund law does not require joint and several liability in every clean up cost recovery but permits apportionment;
- Winter v. NRDC In a 6-3 decision the Court lifted an injunction against the Navy's use of sonar near marine mammals;
- Summers v. Earth Island Institute The Court decided 5-4 that environmental organizations lacked standing to challenge the exemption of salvage timber sales from notice and public comment process.