4 6 | ENVIRONMENTAL FORUMReprinted by permission from Environmental Forum® , November/December 2024.
© 2024, Environmental Law Institute® , Washington, D.C. www.eli.org.
In Federalist No. 78, Alexander Hamilton
described the judiciary of the proposed
U.S. government as the “least dangerous”
of the three branches. Events of the past
few years might have Hamilton reconsider his famous position, as the Supreme
Court has consistently appeared in the
press for controversial society- and governmentshaping opinions.
Whole cottage industries dedicate themselves to
finding the Greatest of All Time in virtually every
endeavor, from NFL quarterbacks and NBA guards
to fashion designers and artists. Academics have
their own such lists, with annual examinations of
the greatest presidents, economics policies, and,
yes, Supreme Court holdings.
While we enjoy reading all the lists, the Supreme
Court has a special place in our hearts. Inconspicuously positioned off the National Mall, the Court
often operates in the background of the frantic
D.C. political hullabaloo. But from the beginning
of our constitutional republic, the high court has
punched above its weight. Never afraid of reminding the country of its jurisdictional superpowers,
the Court has given the last word on some of our
most important national issues, from abortion
rights to gay marriage to health care availability.
That is particularly evident in the world of environmental law, as the Supreme Curt sought to interpret the explosion of statutes passed in the 1970s
and 1980s. Those cases largely still govern most of
the environmental realm today. Guided by rules of
statutory interpretation, and no shortage of policy
persuasions, the Court directed the development
of law and established both opportunities and setbacks along the winding road toward sustainability.
Many scholars have addressed the question of
identifying the most significant of the Supreme
Court’s environmental decisions. In a series of articles in the Environmental Forum, for instance,
Professors J.B. Ruhl and James Salzman identified
what they called “American Idols” by polling professionals in 2001, 2009, and 2019. Their results
were presented in a chart of the most important 10
decisions. Interestingly, but perhaps unsurprisingly,
the top result changed each time they conducted
the poll. TVA v. Hill headed the chart in 2001, but
Massachusetts v. EPA took the spotlight in 2009.
Completely expectedly, Chevron v. NRDC stole the
hearts of voters and swept the 2019 competition.
While we completely laud Professors Ruhl and
Salzman for their fascinating polling data, their lists
TESTIMONY
Ranking
the Court’s
Top Cases
In the box score on page 49, we present
the heavy hitters—the most influential
environmental decisions by the nine
justices, ranked by how often courts
cited the cases in later holdings
John Cruden is a principal
at Beveridge & Diamond.
Seth Gertz-Billingsley
is a third-year student at Harvard
Law School
Appendix 3pendix 2N OV E M B E R / D E C E M B E R 2 0 2 4 | 4 7Reprinted by permission from Environmental Forum® , November/December 2024.
© 2024, Environmental Law Institute ® , Washington, D.C. www.eli.org.4 8 | ENVIRONMENTAL FORUMReprinted by permission from Environmental Forum® , November/December 2024.
© 2024, Environmental Law Institute ® , Washington, D.C. www.eli.org.
are a little bit like a beauty pageant, voting for the
most likeable. We decided to flip in at least a flavor of objectivity, beginning with the premise that
the most important decisions would be those that
lower courts most relied on, as of (Month) 2024.
Our strategy at the start seemed simple enough—
we intended to take each case and track its citing
references using Westlaw and Lexis, to observe its
life over time. We anticipated that cases with higher
citing references would have a greater impact than
cases with fewer citations. But we quickly encountered some challenges. Some cases, like Lujan v. Defenders of Wildlife, undoubtedly changed litigation
strategy. Counsel would not advise wasting resources just to have a case thrown out for standing, but
that would also mean numerous cases that could
be never were. We also found that some cases were
coopted by other fields of law—criminal, administrative, etc.—and therefore had ghost citations that
had nothing to do with our core subject. Finally,
several cases had tens of thousands of cites, enough
to keep a team of dedicated research assistants busy
for semester after semester. Slowly, our research
methods changed. In the end, we settled on total
citations, ghosts and all, divided by years since the
decision dropped. That ratio would give the average citations per year—not unlike a Major League
batting average.
Our final list is composed of those environmental cases which had the most significant impact on
the law as judged by how many courts, Supreme
or otherwise, employed them in decisions. We then
simply ranked the decisions by that average to produce a top-10 list—our Heavy Hitters.
A brief note on some other methods we considered. Initially, we anticipated employing the headnotes feature on Westlaw and Lexis. We thought
that filtering for only those cases which cited the
environmental headnotes of the case would allow
us to find cases that only sat within the environmental law space. This method had several critical
flaws. For one, it relied on a surprisingly ineffective
system. The headnotes themselves often both overand under-include relevant citing sources. Certain
environmental headnotes, like the cases themselves,
were also adopted by other fields of law. Additionally, some critical environmental holdings, especially in older cases, either were incorrectly headnoted
or lumped into other headnotes. As a result, the
search programs would say these cases received only
a handful of citations, even though this was simply
not true.
Abandoning the headnotes, we considered keyword searches in the lists of citing references, but we
ran into similar problems. Nonetheless, it is worth
noting that, with some exceptions, our efforts to
sort by headnote or keyword largely tracked the total citations. With the notable exceptions of Winter
and Lujan, our Heaviest Hitters generally made the
cut whether we used either methodology, though
the list would change order somewhat. This generally makes sense, as the cases above (again excluding
Winter and Lujan, as well as Chevron) tended not
to stray too far from the environmental fold. But
uncertainties in our results led us to keep the methodology and scope described above.
Our list shares a lot with the list composed by
Professors Ruhl and Salzman. Winter, Lujan, Chevron, Massachusetts, Penn Central, Sierra Club v. Morton, UARG, and Whitman appear in both our lists.
The one case that made our cut and not the Professors’ is Bestfoods.
This of course creates just a bit of confusion. After all, we based our results solely on citations, and
the professors used qualitative methods to arrive at
their conclusions. So what is with the overlap? The
correct answer is the simplest: Important cases get
cited more frequently.
Maybe a more important question is what cases
that made the cut for the professors didn’t stick
around on ours. Looking at the 2019 survey, Rapanos, TVA v. Hill, and Overton Park didn’t pull
through. On our master list, TVA v. Hill came in
12th, with 37 cites a year, Rapanos placed 15th,
with 26 cites a year, and Overton Park landed
in 21st, with only 16 cites per year. These cases
didn’t do too terribly, and if we had knocked out
the Winter, Lujan, Chevron outliers for their ghost
citations, TVA v. Hill would have kept its spot on
the list.
At risk of sacrificing our quantitative impartiality, we do have our own views as to why these top
10 cases were cited so much. Environmental law
often drives watershed changes in administrative
law. The recent FDA v. All for Hippocratic Medicine
case provides a good example. In that decision, the
Supreme Court found the doctors challenging the
abortion pill lacked Article III standing. The case
relies heavily on Lujan, Summers v. Earth Island
Institute, and other environmental cases not for
their environmental implications, but their standing doctrines. As Hippocratic Medicine illustrates,
some key environmental cases wear multiple hats.
We call these cases “dual hatted,” meaning that they
could be cited for both environmental and administrative law reasons.1 Winter v. NRDC (2008) is a National Environmental Policy Act case that primarily considers the impact of sonar on marine mammals—but it has had an outsized impact for its straightforward presentation of the
standard of law on preliminary injunctions.
Total Cites 21,832; Average Per Year 1,365
2 Lujan v. Defenders of Wildlife (1992), a
case about the Endangered Species Act, remains the quintessential case on standing.
Justice Antonin Scalia wrote that the plaintiffs
lacked standing under Article III of the Constitution, because they based their claims on speculative environmental harms rather than “actual or
imminent invasion of a legally protected interest.”
TC 35,308; APY 1,103
3 Chevron v. NRDC (1984), which just entered oblivion, was not—despite what many
commentators have suggested—the most
cited case of all time, and the Supreme Court has
not cited it since 2016, according to Loper Bright,
the case that supplants it. But it still made it into
the top echelon. TC 18,640; APY 466
4 Massachusetts v. EPA (2007) is, of course,
the ultimate environmental decision. However, it is also the case to be cited by a state
seeking standing, by giving states “special solicitude” to “protect[] [their] quasi-sovereign interests.”
TC 1,302: APY 77
5 United States v. Bestfoods (1998) is one
of the dual-hatted cases. It is first and foremost a Superfund decision on the liability
of parent’s corporations. However, its corporate
law discussion is relevant beyond the 1980 Comprehensive Environmental Response, Compensation, and Liability Act into other areas of law.
TC 1,797; APY 69 (tie)
5 Penn Central v. City of New York (1978)
said a city can restrict alteration and development of historical sites without causing a taking. This landmark decision established the now
famous Penn Central test for compensation for a
regulatory taking with three factors: “economic impact of the regulation on the claimant”; the extent
to which the regulation interferes with “distinct investment-backed expectations”; and the character of
the government action. TC: 3,171; APY 69 (tie)
7 Sierra Club v. Morton (1972) held that the
club lacked standing to sue under the Administrative Procedure Act because it failed
to show that any of its members had suffered or
would suffer injury as a result of the defendants’ actions. Justice Potter Stewart wrote the opinion for
the 4-3 majority, in which the Court held that, in
order to have standing to sue under the APA, the
plaintiffs must demonstrate they had directly suffered an injury as a result of the actions that led to
the suit. TC 3,193; APY 61
8 Sackett v. EPA (2023), a new decision,
made the list because it received so many citations within the first year after releasing.
That is due, in no small way, to how extensive the
controversy on “waters of the United States” under
the jurisdiction of the Clean Water Act is right now.
However, because Sackett now determines CWA jurisdiction, it is likely to remain an often-cited decision.
TC 51: APY 51
9 UARG v. EPA (2014). Justice Scalia delivered the opinion of the court considering
the regulation of greenhouse gases from
stationary sources under the Clean Air Act, holding that EPA reasonably interpreted the act to require sources that would need permits based on
their emission of conventional pollutants to comply with Best Achievable Control Technology but
lacked authority to “tailor” the act’s numerical
thresholds to accommodate its greenhouse-gasinclusive interpretation of the permitting triggers.
TC 501; APY 50 (tie)
9 Whitman v. American Trucking (2001),
another dual-hatted decision, and also written by Justice Scalia, held that the Clean
Air Act properly delegated legislative power to
EPA, and that the agency could not consider
implementation costs in setting primary and secondary National Ambient Air Quality Standards.
The Court also found EPA’s implementation of
the NAAQS was unreasonable. This case, however, is most often cited for its ruling on the allegation of illegal delegation of legislative authority
and the inability to consider costs in this instance.
TC 1,151; APY 50 (tie)
Top Environmental Heavy Hitters, Ranked by Average Citations Per Year
N OV E M B E R / D E C E M B E R 2 0 2 4 | 4 9