Courting disaster in the nation's capital. Two of the cases—widely misreported by the press—had to do with the delicate subject of "taking."
PHOTO: FOTOLIA/GARY BLAKELEY
Environmental planet earth news brief about recent Supreme Court environmental decisions in the U.S.
Environmental Planet Earth News
The Supreme Court can go for long periods without rendering decisions in environmental disputes. For one reason or another, however, the Court has recently handed down several. The results, as we shall see, are mixed.
Two of the cases—widely misreported by the press—had to do with the delicate subject of "taking." This is one of the things the Fifth Amendment prohibits: " . . . nor shall private property be taken for public use, without just compensation."
Over the years, taking has been defined by the courts to include not only outright condemnation of property but also zoning regulations that forbid certain kinds of building and other activities on private land that have the side effect of lowering the value of the property. Environmentalists worry that if environmental restrictions are included under the definition of taking, such regulations will become much more expensive.
Both of the present cases came to the Court from southern California. In one, a church sued the city of Los Angeles for forbidding the rebuilding of several buildings and other facilities that were destroyed when Mill Creek flooded Camp Lutherglen, a summer retreat for handicapped children operated by the church. The flood had caused fatalities, and the city council subsequently adopted regulations that effectively precluded replacing the buildings, since the site is in a flood plain and therefore dangerous. The First English Evangelical Lutheran Church sued, claiming that its property was being taken.
The Supreme Court ruled for the church, and panic coursed through the veins of the environmentalists as they read accounts of the ruling in the newspapers. The papers, however, missed a crucial detail. All the church had asked the Court to decide was whether it was entitled to compensation if Los Angeles' regulations were eventually deemed to be a taking. The Court said yes. The question of taking in this instance has not been litigated yet, and there's a good chance the regulations will not be deemed a taking since government has quite broad powers to regulate activities on private property when public health and safety are involved. Most lawyers who have actually read the case don't think it sets any unhappy precedent.
The second case in which the press caused unnecessary anguish had to do with a bungalow owned by James and Marilyn Nollan near the beach in Ventura County. The Nollans had remodeled the building without bothering to request permission from the California Coastal Commission and in so doing had blocked the view of the ocean.
The Coastal Commission sued the Nollans, demanding that they provide a public pathway across their property to provide access to public land below the mean high-tide line to compensate for the loss of the view. The Supreme Court, again siding with the property owners, ruled that the easement demanded by the state would be a taking, and that furthermore it was not appropriate compensation for a lost view. So again, while private property won out over public rights, the ruling was so narrow that it shouldn't affect many other cases.
Another case that had environmental lawyers on tenterhooks was a suit under the Clean Water Act—one of hundreds filed in recent years seeking monetary damages from businesses that discharge pollutants into lakes, streams, estuaries or the ocean.
The case involved a company that packs Smithfield hams. As a by-product of its operations, it discharges fecal coliform, chlorine and other pollutants into Chesapeake Bay under permit from the Environmental Protection Agency. Frequently, as demonstrated by its own records, the company violated its permit.
The Chesapeake Bay Foundation and the Natural Resources Defense Council sued the company, Gwaltney, of Smithfield. Gwaltney replied that the suit was unfair since these were "past" violations: Manufacturing processes had been cleaned up, and discharges no longer exceeded the levels allowed by their permit. Therefore, argued the company, it shouldn't be penalized for old violations. This argument was troubling since, if taken to extremes, it might conceivably lead to a situation in which a company could be sued only for "present" violations, possibly limited to a period of a few days.
That's more or less the way the press played the Gwaltney decision when the Supreme Court issued its decision for the ham company. But again, as in the taking cases, the media blew it. For while the Court did excuse Gwaltney for these particular past violations, it made clear that defendants can be sued for past violations if they are still violating their permits and if there's a reasonable expectation that violations will occur in the future.
Meanwhile, the Court will soon decide whether the Forest Service can allow a logging road to be carved through the Six Rivers National Forest in northern California even if it would defile well-established Indian holy ground. The Sierra Club Legal Defense Fund was in the original case, incidentally, to represent environmental clients worried about water pollution and other matters. The government decided to go quietly on those portions of the case, but appealed the religious freedom matters to the Supreme Court. Observers who sat in on the oral arguments before the Court in November are worried. Victories for Native Americans on matters such as this have been scarce.
Finally, the Court did good by doing nothing in cases set in eastern West Virginia and eastern California. In the first, it declined to review a decision that blocked the flooding of Canaan Valley, which a Department of the Interior report once called the "Yellowstone Canyon of the East."
Monongahela Power Company had wanted to build a hydroelectric reservoir, but the application got tied up in a jurisdictional squabble between the Federal Energy Regulatory Commission and the Army Corps of Engineers, with environmentalists siding with the Corps.
Second, the justices declined to review a decision giving the federal government title to the newly exposed shore of Mono Lake, a saline lake east of Yosemite that's drying up because Los Angeles has appropriated most of the water that should flow into it. Here, environmentalists sided with the federal government against the state of California hoping that the feds will be more vigorous in rescuing the lake than the state has been.
Tom Turner, a writer and editor who's worked in the environmental field for 18 years, is with the Sierra Club Legal Defense Fund, an independent environmental law firm that represents many organizations across the country. It is supported principally by private donations. For more information, write Sierra Club Legal Defense Fund, San Francisco, CA.