During the October 2008 Term, the Supreme Court decided five cases that raised issues of environmental law and the environment was the loser in each case. While it may be difficult to characterize the decisions of the Roberts Court, generally, as “pro-environment” or “antienvironment,” a couple themes consistently appear in the Court’s decisions. First, in most of the environmental cases, the Court has adopted a position advocated or defended by a federal, state or local government when governmental interests are at issue. Second, in all of the cases that implicate federalism concerns, the Court has rendered decisions that favor States’ rights, regardless of whether the decisions are beneficial to, or harmful to, the environment. Finally, while the Court continues to rely primarily on textualism to interpret statutes, the Court has not relied on textualism to support its decisions in most of the cases that have been harmful to the environment.
Stephen M. Johnson, The Roberts Court and the Environment, 37 B.C. Env't. Aff. L. Rev. 317 (2010).