41 Trends 1 (2009-2010)

handle is hein.journals/trends41 and id is 1 raw text is: portionof caes- decided. During the 2008-09
term, the Supreme Court ruled on novel and
important questions concerning preliminary
injunctions under the National Environmental
Policy Act (NEPA), cost-benefit analyses
and permitting under the Clean Water Act
(CWA), arranger and joint and several liabil-
ity under the Comprehensive Environmental
Response. Compensation and Liability Act
(CERCLA), and environmental standing. The
Court decided against the pro-environment
position at each turn.
Winter v. Natural Resources
Defense Council
In Winter v. Natural Resources Defense
Council (NRDC), the Court ruled 5-4 to lift
a narrowly tailored preliminary injunction
to enjoin the U.S. Navy's use of midfrequen-
cy active sonar (MFAS) off of the southern
California coast, known as the SOCAL exer-
cises. - U.S. _, 129 S. Ct  365 (2008). The
Navy regards MFAS as the sole effective means
for detecting and tracking enemy diesel-electric
submarines. MFAS, however, also disrupts
marine mammals that rely upon sonar. NRDC
challenged the Navy's failure to perform an
Environmental Impact Statement (EIS) under
NEPA. Finding the possibility of causing
irreparable environmental harm, the district
court issued a preliminary injunction, which the
Ninth Circuit affirmed.
The Supreme Court reversed and vacated
the injunction. Writing for the majority, Justice
Roberts reasoned that balancing the public inter-
est associated with the Navy's national security
and military preparedness against NRDC's pub-
lic interest in protecting marine mammals for
observation and education does not strike us as
a close question. The Court ruled that the lower
court should have asked whether the SOCAL
exercise would result in the likelihood rather
than the possibility of irreparable harm. The
Court then found that the the record contains
no evidence that marine mammals have been
harmed.7 On balance, the majority found the
equities tipped strongly in the Navy's favor: To
be prepared for war is one of the most effectual
means of preserving peace. Justice Ginsburg,
dissenting, had no trouble detecting irreparable
harm, pointing to 170,000 behavioral distur-
bances, including 8,000 instances of temporary
hearing loss; and 564 Level A harms, including

In Enterg  . Riverkee  the Supreme Court
held that the Environmental Protection Agency
(EPA) may conduct a cost-benefit analysis in reg-
ulating the substantial adverse impacts of cool-
ing water intake structures under the CWA. 556
U.S. - 129 S. Ct. 1498 (2009). Section 316(b)
of the CWA requires that any standards estab-
lished for existing discharge sources ensure that
the design, location, construction and capacity
of any such intake structures reflect best tech-
nology available [BTA] for minimizing adverse
environmental impact.
Some thirty years after the CWA's enactment,
EPA issued rules applying  316(b) to existing
dischargers. The rules allow, but do not require,
the use of a cost-benefit analysis before setting
performance-based BTA standards and in decid-
ing whether to grant site-specific variances. The
Second Circuit-in an opinion by now-Supreme
Court Justice Sotomayor-ruled that the CWA
does not allow the use of cost-benefit analysis
and remanded the case to EPA to explain wheth-
er it used or permitted cost-benefit analysis in set-
ting these particular standards.
The Supreme Court reversed 5-3-1. Writing
for the Court, Justice Scalia reasoned that
 316(b), when read together with other perfor-
mance-based provisions of the act, gives EPA
discretion to base BTA on a cost-benefit analy-
sis. Justice Stevens dissented, joined by Justices
Souter and Ginsburg. Stevens asserted that
 316(b)'s plain language requires EPA to set a
standard based on the best technology avail-
able, and therefore does not allow EPA to
employ a cost-benefit analysis,
Coeur Alaska, Inc. v Southeast Alaska
Conservation Council
Coeur Alaska, Inc. v. Southeast Alaska
Conseri'ation- Council pits the CWA's two prin-
cipal permitting provisions against one another.
U.S. - (2009),     S. Ct. __ (2009), 2009 WL
1738643. The CWA prohibits the discharge of
any pollutant, except in compliance with a per-
mit issued tder  402, including national perfor-
mance-based standards for categories and classes
of pollutant discharges, such as froth flotation
mills. Froth flotation is a process in which raw
ore material is ground into fine gravel and mixed
in slurry with chemicals whereby pebbles of
desired metal float to the surface for capture and
processing. The polluted waste mill tailings,
laden with mercury, lead, and other hazardous

Continued on page 14
Printed on recycled paper

September/October 2009
Volume 41, Number 1

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