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Soundscape history and environmental law in the Supreme Court.

  I. Introduction
 II. Oral Advocacy in Environmental Cases
     A. Historic and Demographic Notes
     B. Advocacy Lessons and Environmental Lawyering
     C. Advocacy Greatness
III. Voices from the Bench in Environmental Cases
     A. Personality and Humor of the Justices in Environmental Cases
     B. Thinking Like Environmental Lawyers?
     C. The Justices and Environmental History
 IV. Audience
     A. The Critical Ear
     B. The Greatest Oral Arguments in Environmental Law
  V. Conclusion
APPENDIX A.
APPENDIX B.


I. INTRODUCTION

"Two Voices are there; one is of the sea, One of the mountains; each a mighty Voice ..."

--William Wordsworth (1)

This Article reflects on the history of environmental litigation before the Supreme Court of the United States as preserved in sixty years of audio-recorded proceedings. At the start of the October 1955 term, (2) the Court installed its first sound recording system. (3) Since then, twenty-four Justices have retired their robes, (4) eighteen Solicitors General have hung up their morning coats, (5) and untold numbers have played audience to the Court's agency, or not, in the profound social, legal, and technological changes of past decades. All the while, the Court's audio reels and successor recording devices have, by their accretive workings, deposited a rich archive spanning many thousands of hours. (6)

Only in the last several years have the Court's sound recordings of oral arguments and opinion announcements become available, accessible, and highly portable for public listening convenience. (7) Thus, their contents and significance as a resource to the legal profession have been little studied. (8) While some commentators have extolled the richness of the Supreme Court audio recordings as unique instructive tools for the study of constitutional decision making, (9) this Article is the first to appraise the archive's value for a specialized practice area: environmental law.

Approximately five hundred hours of the Court's sound recordings are the heritage of today's environmental lawyer. (10) As the primary data set for this Article, Appendix B compiles the list of available oral argument recordings for more than three hundred Supreme Court cases where environmental protection or natural resource concerns were at stake. (11) Corresponding opinion announcement recordings are additionally available for a great majority of cases since the late 1970s. (12) The definitional scope of this compiled case list borrows from and builds on earlier studies by Professor Richard Lazarus on Supreme Court decisional history in environmental cases; it is, moreover, notably expansive and comprehensive of those cases that "raise legal issues for which the environmental setting would seem wholly incidental to the resolution of the precise legal issue before the Court." (13) Appendix B also labels, using keyword tags, the identity of these settings under the rubric of the environmental burdens, risks, or amenities at issue in each case. (14)

Of course, the bounds and relief of the Court's environmental docket are not susceptible to perfect mapping. From the sound recordings themselves, newly appointed Justice Scalia once remarked "To-mae-to, tom-mat-to. You call them amenities, I call them environmental impacts.... [T]o try to sever environmental laws from land use laws seems to me very artificial." (15) As Justice Scalia identifies, some niceties of taxonomy impede understanding as much as they illuminate it; (16) the cases are accordingly compiled and classed with a broad lens for the general usefulness of readers and potential listeners, with a necessary dose of editorial judgment. (17)

While these audio recordings--primary sources that are largely but not entirely coextensive with the Court's vast written decisional history (18)--can collectively lend themselves to observations on the broad history of environmental litigation at the Supreme Court, this tack gives little prospect for a manageable focus of inquiry. Accordingly, this Article aims to examine only those distinctive features of the "soundscape" for what they may uniquely teach to students, scholars, and practitioners of environmental law. Taking these listeners as the audience, how should we appraise the audio recordings? Are they, in the end, something more than a kind of casebook supplement?

In taking up these questions, one organizing principle for this Article is elemental to the Court's setting while in public session. Consider that oral argument recordings are chiefly the interplay of two sets of voices: those of the Justices and those of the advocates. Yet a third presence is the unvoiced "audience," a grouping that fairly encompasses the parties to the dispute and, more abstractly, past and present day Court followers, including present day audio recording listeners. This Article thus proceeds in three major parts: Part I, the advocates; Part II, the Supreme Court Justices; and Part III, the audience.

As an accompaniment to each of these parts, this Article takes on several crosscutting themes. Part I engages the concept of "environmental lawyering" alongside its examination of advocates and advocacy through history. Part II studies the Justices as dramatis personae in the Court's environmental docket, but goes further to reflect on how the Court, institutionally and through its work, intersects with "environmental history." Part III draws focus on the audience as prospective listeners. Since that audience would expectedly overlap with the readership of this Article--namely, academics and practitioners in the field--"environmental law" is the crosscutting theme.

Sound recordings are one avenue among many for practitioners to study major cases, but they also convey sophisticated advocacy lessons that are not as perfectly captured by transcripts. The Supreme Court Historical Society even offers a list of "the most significant oral arguments heard by the Supreme Court from 1955 until 1993." (19) The driving inquiry then is whether scholars and practitioners in the environmental field can specially profit from immersive, selective engagement with the sound recordings of the Court's environmental docket, as may be assumed for certain landmark constitutional cases. (20) Ultimately, the value of the environmental docket recordings is real but the degree of value is necessarily idiosyncratic to any individual listener's investment and foundation for listening. Interested readers may take this Article as a listener's guide for exploratory courses of their own making.

II. ORAL ADVOCACY IN ENVIRONMENTAL CASES

Center stage at oral arguments is a matter of perspective, but the Court's "familiar curved bench"--introduced by Chief Justice Burger in 197121--suggests the focal point should fall on the advocate's podium, making it an inviting place to begin. This Part reflects on the advocates who have earned the "quill" (22) and argued environmental cases before the highest court in the land.

As should be expected upon examination of any substantial cross-section of the Court's docket over time, the oral arguments for the Court's numerous environmental cases validate general insights on how oral argument procedures, advocate demographics, and the Court's docket composition have changed through time. Still, there are several historic notes of unique interest and special relevance to environmental practitioners. As might also be expected across hundreds of hours of arguments, soaring advocacy skills along with occasional blunders permeate the soundscape. (23) Environmental lawyers should benefit from listening for those distinctive moments that illustrate the peculiar challenges of environmental lawyering. Notably, oral advocacy effectiveness has long been the hallmark of the advocates of the Office of the Solicitor General, an advantage that draws from that office's service as the Court's "quintessential repeat player." (24) The question of oral advocacy greatness is discussed with special reference to their legacy.

A. Historic and Demographic Notes

While certain traditions endure at the Supreme Court, the role of the advocate at oral arguments has changed markedly with time. Before 1970, oral arguments were languid affairs, often lasting three or more hours. (25) Since 1970, the Court has conventionally limited oral arguments to 30 minutes per side. (26) Adding to these time pressures, the intensity of questioning from the bench has increased in recent decades to a point where the concept of a "hot bench" has effectively lost the meaning and application it may have once had. (27) Today's arguments often have maximally active colloquies and even a harried tempo that only heightens the spectacle for Court watchers. (28) These differences would be plain to anyone comparing an oral argument recording from 1975 to an argument forty years forward.

Shifts in customs and courtesies have been subtler. Arguments prior to the 1980s almost always began with a stock opening phrase: "this case is here on writ of certiorari from [lower court]," (29) but this practice is now long abandoned. (30) As yet another example, in the early decades of recordings, advocates would refer to their opponents as their "friends" on the other side--a custom now undergoing a renaissance in the Roberts Court. (31)

Whatever the time period, advocates display a common call to present their cases in a dignified fashion. (32) One of the more rewarding, if not ennobling, aspects of listening to oral arguments through time is hearing the great continuity of generations of lawyers seeking to fulfill their duties to the client and the Court. In the oral advocacy context, not all advocates can answer with candor in the most forthright and skillful way, but one perceives they are almost universally pulled by the gravity of this core professional duty.

Any reflection on advocacy history invites some examination of the demographics of the advocates before the Court. What can be said of the diversity of advocates in the Court's environmental cases is also largely true of the complete docket.

Running through the cases listed in Appendix B, women's voices would not be heard until April 1978 when Patricia Wald argued as an amicus in Penn Central Transportation Co. v. New York City, (33) and Sara Sun Beale, the next day, argued the cause in Andrus v. Charlestone Stone Products. (34) Notably, the already-experienced Harriet Shapiro--the first woman hired by the Office of the Solicitor General (35)--argued a case of her own the next year. (36) Despite these milestones, it remains somewhat remarkable even as a contemporary matter when two female advocates are heard to argue in a single case. (37)

The historic record is decidedly bleaker concerning underrepresentation of racial minorities in the counsel ranks. Of course, numbers counting with sound recordings is largely futile, as neither the name nor the voice of an advocate can necessarily convey anything of an advocate's racial identity. As one example, Harlon Dalton argued two environmental cases for the Office of the Solicitor General in the 1980s; (38) however, it perhaps takes outside biographical knowledge to identify him as African American. (39) African American lawyers have rarely argued cases before the Supreme Court, not in any semblance of what is proportionate to societal diversity, and this observation for the entirety of the Court's docket--except, perhaps, civil rights casework--holds true without dispute for the environmental cases. (40) Additionally, although more than thirty environmental cases in Appendix B have crossover significance with Federal Indian Law, Native American attorneys argued scant few of them. (41) Despite past milestones and several historic notes of interest, (42) there is no discernible trend toward increased diversity at the podium in environmental cases or the Court's larger docket. (43)

A final topic of likely interest is the follow-on notoriety of many individuals who argued environmental cases. Their ranks include a future Senator, (44) a future governor, (45) and a future Secretary of State. (46) Listeners would also hear two future Supreme Court Justices (47) and multiple future appointees to the federal courts of appeals. (48) Of course, several current and future law professors have argued cases of their own. (49) In those environmental cases where the United States argues as a party or an amicus, the advocate frequently steps to the podium already having the stature of a political office. (50) A Solicitor General, or a person acting in the position, has argued at least thirty-six cases. (51) An Assistant Attorney General has argued eleven cases. (52) An Associate Attorney General has argued a single case. (53) Finally, as it happens, no Attorney General has argued an environmental case since Griffin Bell brought a snail darter "encased in a small flask" (54) to the podium in the seminal case of Tennessee Valley Authority v Hill (TVA v. Hill). (56)

B. Advocacy Lessons and Environmental Lawyering

As is natural to an adversarial system where advocacy matters, each argument session presents opportunities for lessons learned. Even as the Court generally hears from seasoned, exceptional attorneys, the advocates make occasional mistakes, and those moments can be instructive. Some of these mistakes are generic, such as errors of form that might as easily be found in any large sampling of the Court's sound recordings. (56) Errors in content, or substantive errors, are often more interesting and can betray the advocate's level of immersion in environmental legal practice. (57)

Starting with mistakes of a generic nature, David Frederick--incidentally an advocate in at least two environmental cases, among many others--organizes advocacy mistakes into five categories: 1) speaking style errors; 2) substantive errors; 3) errors in citing materials; 4) errors in interacting with Justices; and 5) decorum errors. (58) Under close scrutiny, the environmental case recordings are rife with subtle examples of all these species of errors. A few of the more striking examples are illustrative and warrant quick mention. Bonelli Cattle Co. v. Arizona (59) stands out as an exceptionally tedious argument; after ten minutes one of the Justices remarked, "I assume you're going to tell us what the issue is in this case and what it is about." (60) Another argument, one presented for Colorado v. New Mexico, (61) began roughly when the advocate quoted heavily from an unsigned editorial, thereby prompting Justice Marshall's rebuke: "I personally find it kind of amazing that you cite it to us. You can't even give us any authority for it at all." (62) But of all the Justices, Chief Justice Rehnquist sounded particularly harsh with advocates, something the transcripts scarcely capture. (63) In Alaska v. Native Village of Venetie Tribal Government, (64) he abruptly chided respondent's counsel, "You don't ask questions of the Court." (65) Even a Deputy Solicitor General who argued more than a hundred cases received what the media reported as a "dressing down" from the Chief Justice who snapped, "when a Justice is asking you a question, I suggest you remain quiet until he finishes, if that isn't too much trouble." (66) Being audience to uncomfortable moments with an impatient Justice is nevertheless edifying. A gruff manner on the bench, such as Justice Rehnquist's, often gives occasion for lawyer listeners to reflect on better advocacy practices.

However, anecdotes such as these can as easily be gleaned from any substantial sampling of recordings from the Court. What about these advocates' facility with environmental law, specifically? Not infrequently, advocates before the Supreme Court, like the Justices themselves, are generalists or appellate specialists, not necessarily day-to-day practitioners in the discrete practice area at issue in a case. (67) Skillful environmental lawyering reflects an advocate's studied appreciation of the human impacts and resources at issue in the case, as well as some degree of sophistication in understanding the nuances and history of the area of environmental or natural resources law under review. (68) While it can be true that some advocates, particularly trial lawyers less practiced in appellate argument, may have difficulty deviating from their own factual pattern, (69) environmental lawyers are more likely attuned to the future implications of a decision, i.e., the consideration of human impacts on the environment.

So-called "substantive errors" are intriguing precisely because shortcomings in environmental lawyering, both big and small, come to fight. Several vignettes are illustrative. In the rearguments for Arizona v. California, (70) one counsel flubbed the invocation of a famous, ecologically-minded Justice Holmes quote. Holmes's aphorism, found in his New Jersey v. New York' decision, was: "A river is more than an amenity, it is a treasure." (72) However, the advocate mangled it like so: "[C]an we believe ... that the Congress intended to store up this great body of water, this great treasure in the West, which is practically, as has been said, 'an amenity and not a treasure'?" (73)

One of the more remarkable instances of slippage appears--and, amazingly reappears--in cases dealing with the National Environmental Policy Act (NEPA). (74) In Aberdeen & Rockfish Railroad Co. v. Students Challenging Regulatory Agency Procedures (SCRAP), (75) two advocates mistakenly call it the National Environmental Protection Act. (76) Counsel for the United States again repeats this mistake in Andrus v. Sierra Club, (77) and yet another counsel does it, in passing, in United States v. Alaska. (78)

An advocate need not be a full-time practitioner of environmental law to capably or even excellently argue an environmental case. Solicitor General Seth Waxman argued splendidly in Whitman v. American Trucking Associations, Inc., (79) defending the so-called "eight-hour" National Ambient Air Quality Standard (NAAQS) for ozone that was promulgated under Clean Air Act (80) regulatory authority. (81) However, he stumbled briefly after Justice Stevens asked, "Which eight hours of the day is it[?]" (82) Waxman momentarily protested that he was "not even in the realm of being a scientist," but seconds later had deftly recovered with a precise answer--presumably then armed with a discreet, quick-fired note from a colleague at counsel's table. (83) While advocates can only hope to emulate Waxman's refined argument style, this moment does contrast with those instances where an advocate displays outstanding mastery of the minutest factual nuances in a case. Nevada v. United States (84) has an entertaining exchange that begins when a Justice states: "Counsel, I am curious about one thing which is totally irrelevant. Is the lake freshwater?" (85) Impressively, the advocate recites the salinity in parts per million of the lake; the ocean, for comparison; and the river that fed the lake. (86)

Yet presenting esoteric environmental facts, especially when unsolicited, is not always effective or successful. In the water rights dispute Kansas v. Colorado, (87) an advocate attempted to use the volume of the courtroom to portray the amount of water at issue in the case, employing the phrase, "3,300 volumes of this courtroom." (88) One of the Justices, apparently confused by the metrics of the conversion from acre-feet (the conventional unit) elicited laughter upon asking, "when you talk about the courtroom, are you assuming it's full to the ceiling, or just a foot?" (89) Thus, while this advocate's over-hopeful appeal to the Court's environmental imagination fell somewhat flat, it is notable that few advocates even make such an effort. Because of this hesitancy, advocates may be prime enablers of the Supreme Court's enduring shortcomings in recognizing the "environmental dimension of environmental law." (90)

Richard Lazarus has proposed that "more effective advocacy," through savvy case selection and narrative framing that better "tap[s] into the Justices' own backgrounds" could yield more sophisticated opinions better grounded in the unique features of environmental law. (91) This may be so, although it presents a challenge for advocates who are rightly conscious of the dilemma that arguing with too much passion or rhetoric can itself constitute an error (i.e., a speaking style error under David Frederick's categories). (92) If Professor Lazarus is correct that the Supreme Court's general attitude toward environmental law has been marked over past decades by apathy with tinctures of skepticism and hostility, then some fault should sit with the advocates who themselves would sooner argue the precise legal issue up for decision while not expounding on the governance and resource impacts that are its essential setting.

Even where the United States is a party and appears before the Court as the ostensible steward of a law for environmental protection, only rarely does the advocate commit preciously allotted argument time to address what may be at stake. (93) In this regard, the government's argument in Environmental Protection Agency v. Brown (94) is exceptional:
   I'd like to talk a little bit more about ... air pollution, a topic
   that this Court referred to in Washington versus General Motors as
   one of the most notorious types of public nuisance in modern
   experience. The chief culprit, or one of the chief culprits, is the
   automobile, spewing vast amounts of assorted poisons into the air
   and accounting for by weight, by tonnage, nearly half of all air
   pollution in the country. Because of incomplete combustion and
   evaporation, the internal combustion engine produces carbon
   monoxide and unburned hydrocarbons. Because of high temperatures,
   it oxidizes nitrogen in the air. In the presence of sunlight,
   several of these pollutants react in complex ways, producing
   photochemical oxidants, or what is commonly called smog. The result
   is thousands of deaths yearly, millions of days of illness and
   billions of dollars in health costs and property damage throughout
   the United States. One more fact, and I think this is very
   important to our case, air pollution travels, it moves. It does not
   respect State boundaries. (95)


Here is a striking case of environmental lawyering at the Court--striking not only because this counts as atypical, impassioned advocacy from the Office of the Solicitor General, but also because even advocates for environmental organizations cautiously avoid risking their argument time on the logic and rhetoric of the environmental stakes in the case. (96)

C. Advocacy Greatness

For Supreme Court watchers, this is an age of celebrity status for the Justices and advocates. (97) Amidst the much-hyped emergence of a private Supreme Court bar having outsized representation in matters before the Court, (98) the question of advocacy greatness could take on aspects of a parlor game. (99) But however much the tempo of arguments has quickened in recent years, the intellect and abilities of advocates in previous decades were no less formidable, particularly for those advocates advantaged with some familiarity with the Court. (100) Listen to Sierra Club's advocate in Fri v. Sierra Club (101) or the citizen group's advocate in Citizens to Preserve Overton Park v. Volpe, (102) and it should not be surprising to separately learn that the first was a former Deputy Solicitor General while the second was, at the time, a recent Supreme Court clerk. In both cases, the advocates argued with the kind of poise and well-calibrated speaking style that is characteristic of special or veteran knowledge of the Court. There are, of course, limitations in attempting to measure advocacy quality through mere audio recordings. Recordings cannot disclose a speaker's reliance on notes, much less his or her physical presence, and the unseen advocate may be guilty, as Justice Rehnquist once observed, of a manner of argument typified as a "written brief with gestures." (103) Cases where the advocate faces unremitting questions, as is common today, are script disrupting and thereby less conducive to this possibility. (104)

For an unbroken history of exemplary advocacy, listeners can profitably focus on those cases argued by the Office of the Solicitor General. (105) Advocates from that office deserve special study for at least two reasons. First, for decades, attorneys from that office were "[t]he only significant, ongoing concentration of Supreme Court expertise." (106) As such, they are consistently strong advocates. Second, as an historic matter, there is something educative in the position the United States takes, or once took, regardless of whether the government prevails. (107)Under traditional ideals, the Justices expect the Office of the Solicitor General to "take a long view" and present positions that reflect a "higher loyalty to the law." (108) Thus, to the extent anyone can learn about substantive law by listening to only one side in a courtroom, it does well to focus on the side that is especially protective of its credibility, even wanting to be seen as apolitical and worthy of the Solicitor General's occasional nickname, the "Tenth Justice." (109)

When a Solicitor General personally argues a case, it may signal that case's importance to the Justices or otherwise acknowledge the case's perceived importance within the Executive Branch. (110) Solicitors General, or persons acting in that position, have argued no fewer than thirty-five environmental cases. (111) However, the Office's expertise in arguing environmental cases has been concentrated in several career attorneys. In more than one third of over 220 environmental cases in which the United States participated in oral arguments, one of four attorneys handled the arguments: Edwin Kneedler (26 and counting), Louis Claiborne (20), Jeffrey Minear (19 and counting), Lawrence Wallace (17). (112) Several of these appearances were distinctly shorter amicus curiae arguments. (113) These attorneys have argued a variety of other cases as well, but whatever the time or topic, they consistently displayed the poise that comes with repeat appearances at the lectern. Moreover, by their immersion in the work of the Court, they are better oriented to the precedents and concerns of the Justices and may detect "cross-currents between otherwise seemingly unrelated cases that would be largely invisible to those who focus on just one case at a time." (114) In short, they are outstanding advocates.

While listeners can locate many fine advocates worthy of study and even emulation, one of the more noteworthy advocates to appear in the environmental docket is the "legendary" Louis Claiborne, a long-serving Deputy Solicitor General still remembered and much admired for his writing, his eloquence, and his wit. (115) Claiborne's cases dealt, in his own words, "with the land and the sea and the air." (116) In his time, he became the world's leading expert on original jurisdiction. (117) As any listener can discern, Claiborne's style is unique (118) and practically inimitable, but his composure, forthrightness, and fast-thinking, but calmly presented, elocution are models of excellence for any advocate. (119) When these traits combine with a thorough understanding of the environmental context of a dispute--legally, factually, historically--the Court is witness to environmental lawyering at its finest.

III. VOICES FROM THE BENCH IN ENVIRONMENTAL CASES

One of the cardinal rules of communication is "know your audience," and skillful Supreme Court advocates are attuned to Court precedent and the foibles and biases of the Justices who will decide the case. (120) Consistent with this rule, scholars and practitioners of environmental law have an inveterate, sustained fascination with how the Justices resolve environmental and natural resource disputes. Scholarship flourises on: the Supreme Court's jurisprudence in various environmental law subspecialty and focus areas; (121) the Court's environmental decision-making trends under the tenures of particular Chief Justices; (122) and the stances of individual Justices in environmental cases. (123) Scholars even plumb the publicly released official papers of retired and deceased Justices for additional behind-the-scenes insights on environmental law. (124) Turning to the sound recordings of the Supreme Court is much the same research stripe and presents historic source material that is no less rich. (125) The Court's open proceedings provide windows into the minds and personalities of the Justices, and the audio recordings recreate much of the scene. (126) This Part takes in those acoustics, tuning to the voices of the Justices in the environmental docket.

This Part proceeds in three sections. First, for readers' amusement, it notes those instances in environmental cases that capture the humor and personality of the Justices. Second, it discusses the Court's substantive engagement with environmental law--i.e., how the sound recordings convey signs of comprehension and curiosity from the bench. Finally, it examines the Court's role and its own sense of place as an actor in environmental history.

A. Personality and Humor of the Justices in Environmental Cases

"This is a case about garbage," Chief Justice Roberts intoned, with a short pause for effect, as he began his opinion announcement in United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority. (127) Consistent with Justice Roberts's personality, the line was dryly humorous and light, calculated perhaps more for his own amusement than to elicit laughter from the audience to the session. The line was also separately scripted or extemporized, because it does not appear in the written decision. This moment exemplifies what is different about the sound recordings, and how any given moment can capture some of the life and personality of the Court's open proceedings.

The passions, frustrations, and quirks of the Justices are frequently on display in ways that are not accessible from the Court's purely written record of opinions, concurrences, and dissents. (128) Several unique features of the soundscape help demonstrate this point: oral dissents, "hot mic" moments, and the use of hypotheticals in questioning advocates.

Oral dissents--and oral concurrences, for that matter--are particularly interesting because of their rarity. (129) When a Justice opts to read a dissent or concurrence from the bench, it reflects how sharply that Justice disputes the opinion of the Court and how unwilling he or she is to let that opinion announcement stand on its own. (130) The Court's environmental docket has several such dissents, nearly all of which are preserved in the audio archives: Justice Powell in TV A v. Hill, (131) Justice Stevens in Dolan v. City of Tigard, (132) Justice O'Connor in City of Boerne v. Flores, (133) Justice Stevens in Rapanos v. United States, (134) and Justice Scalia in Environmental Protection Agency v. EMEHomer City Generation.(tm) The Rapanos case also featured an important oral concurrence of Justice Kennedy, which announced a test for the jurisdictional reach of the Clean Water Act,135 136 137 augmenting and serving as a counterpoint for the narrower test given by Justice Scalia's four-vote plurality opinion. (137)

Unguarded "hot mic" moments are rarer still, and much like what is known of the note-passing practices of the Justices at oral arguments, these occasions help show that the Justices are ordinary human beings. (138) For example, just prior to arguments in Hodel v Indiana, (139) Chief Justice Burger is heard to mutter, "I don't give a damn about Indiana." (140) The timing and context explains it: the Court had immediately prior to this heard the more interesting and vital constitutional arguments in the related case of Hodel v Virginia Surface Mining & Reclamation Ass'n. (141) As another example, before arguments in Hawaii Housing Authority v. Midkiff, (142) one of the Justices whispers, "The stakes are big in this one," followed by an audible, "oh, boy!" (143) This was again presumably Chief Justice Burger in a sidebar with one of the senior associate Justices seated next to him, Brennan or White. (144) Most amusingly, in Andrus v Charlestone Stone Products, (145) several Justices spend over a minute chuckling over a portion of the government's just-received reply brief. (146) That reply brief had cited a law review article by Dean Frank Trelease--a respected authority on water law--who posited that one possible explanation for the lower court decision was that "the court collectively went stark raving mad." (147) The lower court was reversed by a 9-0 vote. (148)

Justices also show their personalities in their formulation of hypothetical questions. To take one example, in arguments for Department of Transportation v. Public Citizen, (149) Justice Scalia contrives one of the more outlandish hypotheticals in the environmental docket. He posits the case of a "mad millionaire" who threatens to unleash smoke throughout the nation, (150) which Justice Breyer then modifies to his own characteristically quirky ends. (151) Then, in Duke Power Co. v. Carolina Environmental Study Group, (152) Justice Rehnquist offers a tauntingly difficult hypothetical:
   Supposing that a doctor's office is located across the street from
   your client's house and your client thinks it is in violation of
   the zoning laws. Can he come into a federal court and claim that
   the state's malpractice limitation law is unconstitutional on the
   grounds that if the malpractice limitation law did not exist, the
   doctor would never have opened up a practice because he could not
   afford to do it? (153)


This was, suffice to say, a tough argument, made tougher by the case being heard directly from a district court ruling. (154)

Moments of levity are refreshing counterpoints to such tense moments, and the Court's sound recordings feature several instances that overtly relate to environmental aspects of a case. These moments show the Court's fighter side, (155) and scholars and practitioners should find at least some of them amusing:

* Justice Marshall on the claim that land use restrictions on billboards reduce driver distractions: "Well, why don't you ban women walking down the street?" (156)

* Justice Scalia on selecting just the right animal for Endangered Species Act (157) hypotheticals: "Can't we pick an uglier example than the koala bear? ... We pick the cutest, handsomest little critter." (158)

* Justice Breyer realizing that his use of the word "take" must yield to its statutory context in an Endangered Species Act case: "[T]he answer to what I take is your argument ... strike the word 'take.' What I assume to be your argument...." (159)

* Justice Scalia on waste disposal: "I must say, the spectacle of all States and municipalities wrestling for control over garbage is really quite wonderful." (160)

* Justice Kennedy on waste disposal: "[C]ivilization has advanced to the point where garbage is valuable." (161)

* Justice White on waste disposal: "What do they mean by sanitary waste disposals? ... Do you think that's an oxymoron or something?" (162)

* Justice Rehnquist on Indian law: "[I]t seems to me the fact that you do not now make any due process claim ... makes the notice question pretty low on the totem pole. Perhaps this is the wrong case to say that." (163)

* Justice Roberts on counsel's argument that certain Clean Air Act regulations were clear on their face: "That's an audacious statement." (164)

* Justice Powell thinking of his fisherman colleague upon hearing counsel describe the finest trout stream in the Southeast: "You have Justice Stewart's vote already." (165)

* Justice Breyer on the environmental impacts of military activities: "[W]hen I think of the armed forces preparing an environmental impact statement, I think, the whole point of the armed forces is to hurt the environment." (166)

* Justice Rehnquist on the costs of special masters in interstate water disputes: "I believe the Pecos master is an engineer. He's not a lawyer.... He's also the cheapest master we've ever had." (167)

These examples are nothing close to exhaustive, and laughter more often punctuates arguments in ways that do not relate to the substance of what is under review. But all of these moments enliven the Court's open proceedings and draw focus on the human element of environmental law at the Supreme Court.

B. Thinking Like Environmental Lawyers?

Listening to sound recordings of the Court's environmental docket, it is plain that the Justices have extraordinary intelligence and, at times, even more exceptional curiosity. During oral arguments for Aberdeen & Rockfish R. Co. v. SCRAP, Justice Stewart marveled over several terms for recycled commodities--such as noils, rovings, and cullets--remarking that they were words he had "never heard in [his] life." (168) Similarly, in the oral arguments for Japan Whaling Ass'n v. American Cetacean Society, (169) Justice Blackmun, admittedly "not an expert in whales," was curious about Minke whales and how their population figures were known. (170) Although this impression is anecdotal, the sound recordings for the fishing and hunting cases point to the possibility that several Justices have a keen, perhaps even sporting interest in the recreational background facts. (171)

However, the Justices also make occasional substantive errors that show limits in their understanding of environmental facts and law. (172) Richard Lazarus identifies Justice Rehnquist as having "shape [d] the Court's NEPA precedent more than any other member of the Court," (173) and yet when announcing his decision for Metropolitan Edison Co. v. People Against Nuclear Energy, (174) he errantly calls the statute the "National Environmental Protection Act." (175) Recently, Justice Kennedy during the oral arguments for Environmental Protection Agency v. EME Homer City, asked a question about "the NAAQ," mistakenly thinking the "s" in the acronym for "National Ambient Air Quality Standards" made it plural. (176) Perhaps most impressively, during oral arguments in Nevada v. United States, after counsel noted that a particular fish species at Pyramid Lake, the cui-ui, was in jeopardy of extinction, Justice Marshall asked, "[I]s that information any more reliable than information we got that the snake doddle was about to go?" (177) It seems, at least in Justice Marshall's memory, the famous "snail darter" was out-survived by the "snake doddle" (178)--although his unfriendliness toward the famous fish of TV A v. Hill was alive and well in Nevada v. United States! (179)

Justice Rehnquist presents an interesting study in environmental literacy. On the one hand, in oral arguments for Illinois v. Kentucky, (180) he appears profoundly confused about how dams work to impound water: "[I]f it's deeper above the dams, one would think it would be shallower below the dams, because the same amount of rainfall is falling on that watershed as fell in 1792.... [If the river is] wider on both sides in some places, it seems logical it must be narrower on both sides in other places." (181) On the other hand, Justice Rehnquist is to some extent unfairly maligned as the author of the opinion in United States v New Mexico. (182) That decision denied the claim of the United States to reserved water rights for use in the Gila National Forest, and Justice Powell wrote a celebrated dissent (183) that criticized the Court for envisioning national forests as "still, silent, lifeless places." (184) To Justice Powell and his fellow dissenters, "forests consist of the birds, animals, and fish--the wildlife--that inhabit them, as well as the trees, flowers, shrubs, and grasses." (185) According to a conventional assessment of the written opinions, Justice Rehnquist's position represents a failure to understand ecosystem needs. (186) It has gone unnoticed, however, that Justice Rehnquist asked the most ecologically sophisticated question at oral arguments, namely whether the respondent would concede the right to water should differ "with respect to phreatophytes within a National Forest." (187) The answer to the question of phreatophytes--plants that survive by having their roots in touch with moisture--may have had a largely unacknowledged impact on Justice Rehnquist's thinking about the case. (188) Counsel persuasively explained that the "high mountain forest," primarily made of ponderosa pines, did not have a big phreatophyte population dependent on stream flow. (189) This moment also illustrates how the Court's written decisional history does not necessarily concretize all the reasoning in a case or make use of all relevant facts. While authored opinions may reflect a Justice's chosen, impressionistic brush strokes, the Court's sound recordings can often, as here, give a more vivid, photorealistic picture of a case.

C. The Justices and Environmental History

Environmental history, broadly conceived, is the "history of the role and place of nature in human life." (190) The Supreme Court and its bar are assuredly actors in environmental history, but there are many different perspectives for considering the Court or its jurisprudence through the lens of environmental history. In the early development of this history subdiscipline, its scholars tended to produce political history concentrating on environmental politics. (191) As easily as this could also be done for the Supreme Court's case history, not all cases of historic importance from the angle of environmental politics have environmental interests at stake. (192) Since the 1980s, environmental history has become a more florid, complex garden of ideas: variously applying scientific detective work to reconstruct past environments; studying the interwoven relationships between societal modes of production and dynamic, often human-impacted environmental settings; and studying ideas and cultural assumptions about "nature." (193) Aspects of the Court's environmental docket touch on all these areas. An original action may be an ownership dispute occasioned by the meanderings of a river and the more or less unstoppable forces of fluvial geomorphology. (194) Likewise, disputes over pollution control and environmental contamination may work their way to the Court with a distinct geographic and temporal setting. (195) But, in another sense, the Court's environmental cases are flashes of society-wide efforts to define and regulate environmental impacts, burdens, and amenities. Practitioners, advantaged by their experience, may see these disputes to have underlying fact patterns that are neither unique nor isolated.

As should also be expected, the Court's environmental docket, and its corresponding soundscape, memorializes and traverses legal conflicts based on geologic changes and societal changes in subsistence, production, and consumption. For example, we hear the Court engage outmoded polluting technology, (196) outmoded means of pollution surveillance, (197) and globally notorious incidents of environmental contamination. (198) By examining the changing composition of the environmental docket, one may even discern past areas of special interest and scrutiny from the Court that have now passed into memory. (199) These broader observations would do little to cabin the subject of the Court's role as an actor and percipient witness in United States environmental history; they implicate questions of historical materialism that are continental, if not global, in scale.

In contrast, the Court's encounters with ideas of nature are susceptible to narrower and more productive inquiry. As a matter of institutional function, the Court does not passively hear disputes and instead actively seeks to answer questions of law based on the record and arguments before it. (200) In this capacity, the Court's ideology of nature is present, though its salience is not often acknowledged.

The oral arguments in three older cases give special insights into the Court's environmental worldview. (201) All three of them evince older, outmoded ecological understandings and tend to throw into question whether viewpoints on nature embodied in the Court's decisions--and underlying deliberations--are reliable.

As a first example, United States v Republic Steel Corp. was a landmark case for holding that the deposit of industrial waste created a forbidden obstruction to the navigable capacity of a river under the Rivers and Harbors Act of 1899. (202) Surprisingly, during oral arguments, counsel for respondent argued what was then an already antiquated theory: that running water purifies streams. (203) Counsel stated, "It is true that if you discharge putrescible material into flowing water, it will oxidize that material so that it will no longer be putrescible, noxious." (204) Such rotting material, he continued in his explanation, does not disappear, but the "bad odors and so forth, will have disappeared" and such material will have "been purified from the standpoint of public health." (205) Counsel presents an apparent variant of a nineteenth century hypothesis, once predominant even among engineers, that has long stayed lodged in the imagination of laypersons; however, bacterial research during the 1880s and 1890s refuted the theory. (206) Indeed, it had already been decades since the Supreme Court had considered evidence, however attenuated, that bacillus of typhoid might survive a multiday, 300-plus-mile downriver trip from Chicago to St. Louis. (207) Strikingly, for this case noted as a model of environmental legal innovation, the Court was audience to particularly retrograde environmental argumentation. (208) The claim that running water purifies streams is more suited to a bygone era when limits on the diluting power of waterways were less apparent and contaminant detection methods were less sensitive. (209)

Oral arguments in Citizens to Preserve Overton Park--a famous administrative law case on the clash between highway developers and park preservationists--provide another example. (210) During arguments, a Justice asks the Solicitor General to explain the meaning of the term "climax forest," noting it was used in the petitioner's brief. (211) The Solicitor General had no understanding of its meaning. (212) This term invokes an older, value-laden principle of ecology that was already passing out of favor in scientific circles. (213) The ecologist Frederic Clements had earlier pioneered a concept of plant succession whereby a biotic community reaches a stable state known as a "climax." (214) However, by the mid-twentieth century, the concept was already criticized as "too monolithic and too teleological." (215) As environmental historian William Cronon writes, even putting aside human influence, "[t]here has been no timeless wilderness in a state of perfect changelessness, no climax forest in permanent stasis." (216) Whether the inquiring Justice was able to locate a definition of climax forest before voting on the case at the Justices' Conference is not known, but it remains remarkable that in a case concerning the protection of "natural beauty" in Overton Park, the petitioners employed terminology of plant ecology to describe its features. (217) That chosen term perhaps meant to evoke ideals of natural equilibrium and the absence of human interference, but this message was lost on the Justices. That Justice Marshall's opinion for the Court says nothing of a climax forest at Overton Park is just as well, considering the scientific moorings of the concept were already long criticized. (218)

The 1976 oral arguments for Philadelphia v. New Jersey (New Jersey I), (219) an early decision in a line of cases over waste disposal and the "dormant" Commerce Clause, provide a final example. (220) During those arguments, as counsel for the respondent asserted, "A landfill is valuable for its intended purpose, which is the disposal of waste," a Justice questioned, "Is it not also to fill in land?" (221) This Justice's question echoed back to some of the original, prevailing views of postwar sanitary landfills as the new alternative to open dumps and a way to fill in mosquito-ridden wetlands. (222) However, since at least the 1960s, applied experience with landfills brought greater scientific information on the serious environmental risks, if not harm, occasioned through leachate and landfill gas. (223) Questioning during arguments also alluded to the construction of the New York Giants' stadium at a landfill site, prompting counsel to explain that the underlying waste gave no stable foundation for the construction. (224) Tellingly, these same misconceptions from the bench persisted in the 1978 oral arguments in Philadelphia v. New Jersey (New Jersey II). (225) There again, as the Justices were fixated on abstract imaginings of how garbage transfers constituted commerce, Justice Stewart posited, "What if a person has land that he wants filled? It is to his advantage to have it filled." (226) Accordingly, in these cases concerning restrictions on interstate commerce, at least one voice from the bench--indeed, the subsequent opinion author--had difficulty conceptualizing the very externalities and environmental burdens that motivated the waste import prohibitions under dispute.

These evident gaps in understanding and misconceptions from counsel and the bench do not necessarily make their way into the Court's written decisions. Biography may shape and subtly inform the biases of individual Justices, (227) but this is only part of what can form their cultural conceptions of nature. They may be subject to imperfect conceptions of environmental science and idiosyncratic shortcomings in environmental literacy. These views, in turn, may shape the Court's jurisprudence in unseen ways.

Ultimately, the Court would do better to have an understanding of environmental history, including the history reflected in the arc of its own cases. As one scholar has observed with respect to the Court's Clean Water Act cases, the Court's jurisprudence suffers from an evident lack of interest in citing prior Clean Water Act opinions, even when older cases may be legally relevant to the issues at hand. (228) Going further, the Court's environmental jurisprudence is impaired wherever the Court cannot grasp the dimensions--scientific, historic, legal--of its own involvement in an environmental problem. (229)

IV. AUDIENCE

The meanings of the words "advocacy" and "advocate" are enriched by a quick study of their Latin-based etymology. They are the noun forms of the verb "to call," containing--as is evident at a glance--a root that also relates to "voice" (voc): (230) By its meaning, however, the advocate is the recipient of the calling (i.e., one called to the aid of the client). (231) The advocate honors this voice in any dispute brought before a court. (232) Accordingly, while a microphone recording at the Supreme Court can only be expected to capture the functionary speakers, the voices of the represented parties are no less present in the courtroom. Part of the drama and nobility of judicial proceedings inheres in this fact that the parties are, in effect, audience to their own voices. (233)

The metaphor extends further and has special application when it comes to environmental law. Consider whether unvoiced, but exceptional nature can itself petition a court for relief. Consider the last of a living species, the oldest of the bristlecone pines, the tallest redwood, or--in-asmuch as nature subsumes all--the plight of unborn future generations of humanity. However environmental law parses their fates, nature in all its aspects is at least a silent witness to the Court's environmental docket.

This mini-disquisition harks back, of course, to Justice Douglas's famous written dissent in Sierra Club v. Morton, (234) which posited that the ecological community, inarticulate or inanimate as it may be, should have legitimate spokesmen in those people who "know its values and wonders." (235) This dissent is recalled as a "classic" that is "venerated in the environmentalist canon." (236) Poignantly, Justice Douglas' oral dissent on this same message does not sound forth from the archives, if it was ever recorded. In some way, listening to the sound recordings of the Court's environmental docket is an exercise in listening for Douglas' ideal--that voice of the beneficiaries of environmental wonders, that voice of the inanimate object that Justice Douglas had implored "should not be stilled." (237) More clearly, the environmental docket sound recordings are waypoints in environmental law, each case inviting the listener's reflection on whether the law and the people who labor at its meaning are conscientiously working for harmony or disharmony in the relationship between society and environmental resources.

This Part reflects on the value of the sound recordings to the study of environmental law. The Court's overall significance to environmental law is the subject of some debate, and there are some corresponding limits to the usefulness of the sound recordings, particularly in the failure to teach much "black letter" environmental law, past or present. (238) Many cases, however, have standout historic or legal significance, and the Court's sound recordings often help engage those cases in greater depth. Accordingly, this Part concludes by suggesting a few avenues that readers and listeners might gainfully explore.
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Title Annotation:I. Introduction into IV. Audience, p. 895-927
Author:Tomasovic, Brian S.
Publication:Environmental Law
Date:Sep 22, 2015
Words:8276
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