By Suhrith Parthasarathy
NEW YORK, Dec. 3 (Reuters) - When the U.S. Supreme Court
hears a pair of cases challenging the Environmental Protection
Agency today, it will do so without Justice Stephen Breyer, who
has recused himself.
Breyer is a noted expert in administrative law and has
tended to defer to the position of federal agencies in the past.
By recusing himself, he may have deprived the EPA of an ally in
two too-close-to-call challenges, which could determine how the
agency handles certain logging permits.
Breyer's absence could therefore give an advantage to
environmentalists, who are challenging the EPA in the two cases.
Under long-standing EPA policy, logging companies are exempt
from securing permits for stormwater runoff. In the two
lawsuits, originally filed in 2006, an environmental group says
runoff is a major source of urban pollution and that the Clean
Water Act in fact requires permits. The Oregon state agencies
and timber companies who are the defendants in the lawsuits
argue that the act does not mandate permits.
The district court ruled against the Northwest Environmental
Defense Center, but the 9th Circuit Court of Appeals reversed in
a unanimous decision in 2011. The defendants, including the
Oregon State Forester, the Oregon Board of Forestry and a group
of timber companies, appealed to the Supreme Court.
When the Supreme Court announced in June that it had granted
certiorari, it noted that Breyer would be recused, though it did
not disclose the reason, as is typical in recusal cases.
In the past, Breyer has disqualified himself in cases in
which his brother, Judge Charles Breyer, a senior district judge
for the Northern District of California, had played a role.
Judge Breyer sat by designation on the 9th Circuit in both
Georgia Pacific-West v. Northwest Environmental Defense Center
and Decker v. Northwest Environmental Defense Center.
Before he joined the Supreme Court in 1994, Justice Breyer
was a noted expert in administrative law and wrote two
influential books on deregulation. His absence in the
environmental cases could be considered a loss for the EPA and
logging companies, experts said.
"Justice Breyer tends to be very sympathetic on the kinds
of issues this case presents -- the Environmental Protection
Agency's ability to interpret statutory language ... and t o
address the problem at hand," said Richard Lazarus, who teaches
environmental law and Supreme Court advocacy at Harvard Law
School. "His is a vote I would think would have been inclined to
favor the government's position here."
Without Breyer on the bench, the outcome of the cases is
harder to predict. The most likely result is that the court's
five conservative justices will vote together in support of the
timber industry and reverse the 9th Circuit, said Michael Barsa,
co-director of the environmental law concentration at
Northwestern University Law School.
Alternatively, Justice Antonin Scalia, who is known to adopt
the plain and textual meaning of a statute, could break ranks
with his usual allies on the right and interpret the Clean Water
Act to mandate permits for stormwater runoff, said Barsa. If
Scalia votes with the more liberal members of the court, the
vote could be 4-4.
A split would automatically affirm the 9th Circuit ruling,
which would be a win for the environmentalists. As with all 4-4
votes, the decision would resolve the case at hand but would not
set any precedent.
TO RECUSE OR NOT TO RECUSE
During each Supreme Court term, there typically are a
handful of cases in which justices recuse themselves. Members of
the court make those decisions based on a federal statute, court
rules and personal judgment.
In its "Statement of Recusal Policy," the court spells out
situations where a justice must bow out. These include cases in
which a relative of a justice has appeared as a lawyer or a
justice has a financial interest in the outcome. At the same
time, the guidelines caution that members of the court should
not go beyond the required recusals.
"Even one unnecessary recusal impairs the functioning of
the Court," the policy says.
The recusal policy and the federal statute do not address
whether a justice needs to recuse himself when a relative sits
on a case under review by the court.
In choosing to step aside, Breyer would have had to rely on
personal judgment to decide if anyone might question his ability
to remain impartial, given his brother's role.
Because the justice has recused himself each time he has
had to sit in judgment of his brother's decisions, the latest
recusal became necessary to maintain consistency, said David A.
Dana, a professor of environmental law and professional
responsibilities at Northwestern Univeristy Law School.
Richard Painter, a professor at the University of Minnesota
who co-authored a book on lawyers' professional
responsibilities, isn't so sure about that. He said that
Breyer's recusal was not strictly required and may have been
ill-advised. "I am surprised with Justice Breyer's recusal.
There is no financial interest involved here," Painter said. "I
don't think the public would have thought him to be
Justice Breyer and Judge Breyer declined to comment through
representatives. Timothy Bishop, the Mayer Brown attorney
representing the timber industry, and Jeffrey Fisher, the
attorney representing the environmental group, also declined to
comment on the cases.
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