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COURT REPORT with Charles Bierbauer

Clearing the air and waters

smog
The Supreme Court will decide whether the EPA should be the primary authority in setting standards on ozone and smog particles under the Clean Air Act  

WASHINGTON (CNN) -- By the end of this U.S. Supreme Court term, the air won't be any cleaner. The water won't be any clearer. But the law ought to be less murky.

As the justices assess key environmental statutes in the term beginning Monday, they will be asked to weigh the costs and benefits of regulations limiting the emission of ozone and particulate matter into the air. They will also have to decide if migratory birds have an economic value that trumps the business interests of operating a landfill on the birds' wetlands.

* In Browner v. American Trucking Association, the Environmental Protection Association (Browner) argues Congress did not underreach when it allowed the EPA to set the emission standards. The EPA wants the court to reinstate its authority under the Clean Air Act to set air quality standards. A lower court invoked the "nondelegation doctrine" to say Congress may not hand off that constitutional responsiblity.

The justices, perhaps in the interest of symmetry, also agreed to hear American Trucking Associations v. Browner. In that case, businesses say if EPA gets to set the standards, it should at least weigh the costs of compliance against the benefits.

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CNN's Charles Bierbauer reports on some of the key cases scheduled for this term

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"The argument here is not that we want to turn back the clock," says Ed Warren, representing the U.S. Chamber of Commerce's National Chamber Litigation Center in the case. "The question is rather, how are we going to achieve the most for our scarce societal resources."

* Environmental and economic interests are also at odds over the Clean Water Act in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. Landfill operators just outside of Chicago are competing with migratory birds for the same turf, in this case, waters.

The Corps of Engineers asserts jurisdiction over the ponds left by an old strip mine by claiming the birds fall under interstate commerce. Bird watchers and hunters spend over a billion dollars each year in pursuit of migratory birds.

The case raises interest in corners you might not expect. Last year, in U.S. v. Morrison, the court struck provisions of the Violence Against Women Act saying gender-motivated crimes of violence are not economic activity. In doing so, it rejected arguments that crimes against women have an impact on commerce because they make women fearful of certain jobs in certain locations. The court could find itself saying that where birds fly has more impact on commerce than where women work.

With slightly more than half the court's docket filled for the term, there is no overarching theme, but business will have more than its usual share of interest in the court's decisions.

* An opening day case--Eastern Associated Coal Corp. v. United Mine Workers of America--questions whether mandatory arbitration in a labor contract requires an employer to put a union driver who repeatedly tests positive for drugs back at the wheel of a 25-ton truck on a West Virginia highway.

"This is the Homer Simpson case," says Tom Goldstein, a Washington attorney who frequently argues before the Supreme Court. "The public likes to feel that, OK, you have protection in arbitration. But we'd still rather you're not running something that could explode and kill me."

Other cases involving arbitration in employment and contracts are also on the docket.

The Fourth Amendment assurance against "unreasonable searches" will test the justices sense of reason in at least four cases.

* Ferguson v. City of Charleston. Is it reasonable for a South Carolina public hospital to turn drug-revealing urine tests of pregnant patients over to police and have the women arrested?

* City of Indianapolis v. Edmond. Should drivers expect to be stopped in wholesale numbers at a police roadblock while drug sniffing dogs check their vehicles?

* Illinois v. McArthur. Can police prevent a person from entering his residence while they get a warrant to search the premises for drugs?

* Atwater v. City of Lago Vista. In the case that strikes fear into the hearts of soccer moms, the court will have to decide if the Fourth Amendment came unbuckled when a Texas cop handcuffed and arrested a woman who undid her seatbelt to retrieve a child's toy in her car. Is it unreasonable to arrest someone for a violation that only carries a fine?

None of the justices is unbuckling his or her seatbelt. The same nine justices are sitting together for their seventh term in a stretch of continuity unmatched since the 19th Century.

There are loud--and justifiable--claims from both Republicans and Democrats that the Supreme Court is at stake in this year's presidential election. With Justice John Paul Stevens now 80 and Chief Justice William Rehnquist and Justice Sandra Day O'Connor in their 70s, actuarial probability says one or more could retire in the next four years, almost certainly within eight.

The justices will consider term limits on the day before election day. Cook v. Gralike challenges a Missouri initiative to label congressional candidates on ballots who refuse to support term limits. Opponents say it's like wearing a 'scarlet letter.'

The justices, of course, have no limits on their term on the Supreme Court.





RELATED STORIES:
Report: Judge junkets may taint environmental rulings
July 26, 2000
Supreme Court expands study of tougher clean-air standards May 30, 2000
Court to study key environmental case
May 22, 2000

RELATED SITES:
Supreme Court of the United States
United States Environmental Protection Agency
Pace University School of Law Virtual Environmental Law Library
NYU School of Law Center on Environmental & Land Use Law
Department of the Interior Virtual Reading Room
Recent Developments in Environmental Law from McCutchen Doyle


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