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Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
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The Clean Water Act Might Just Survive This Latest Attack
No full textThe most important Clean Water Act case in more than a decade was recently argued before the U.S. Supreme Court. At issue in County of Maui v. Hawaii Wildlife Fund are clean water values that have undergirded American law for more than 50 years. Conservationists have been worried that this case could gut one of the foundations of modern environmental law. But the justices’ questions during oral argument provide room for cautious optimism. The Clean Water Act just might survive this challenge. Diminished, perhaps, but not defeated. Maui County, which remains dependent on nearly 3 million tourist visits to its iconic beaches each year, has been running millions of gallons of treated sewage through underground injection wells. Those wells—by their very design—discharge pollution into groundwater that then flows to the Pacific Ocean. A coalition of state and local environmental groups, represented by the national nonprofit environmental law organization Earthjustice, have fought to require Maui County to seek a permit under the Clean Water Act. Environmentalists want Maui County to stop fouling its own nest, so to speak. On behalf of Anderson County, South Carolina, and Decatur County, Tennessee, I filed a friend-of-the-court brief in support of the respondents. Both of these conservative, Southern counties have suffered water contamination linked to out-of-state industrial polluters, and both support Clean Water Act enforcement to address their problems. In Anderson County, pollution travels as little as 400 feet through soil and groundwater—roughly the length of the Supreme Court building—before reaching a tributary of the Savannah River. For several years, Maui County has resisted pressure to clean up contamination linked to its disposal of wastewater. It insists that county wells are not conveying any pollution directly to the ocean. The intervening groundwater, the county asserts, prevents it from ever needing to obtain a federal permit. And it is that argument that would blow a massive hole in a federal law that has protected America’s waters for more than 40 years. Maui County’s argument to weaken the Clean Water Act’s point source program is not a new one. Back in 1967, the Esso Standard Oil Company protested that “the remoteness of its activities from the shoreline” should exempt it from liability under a precursor to our modern Clean Water Act. But the U.S. Court of Appeals for the Third Circuit rejected that argument, explaining that the laws of physics buttressed the laws of liability in force at the time: “Though Esso did not run a pipe to the water’s edge and discharge petroleum products directly into the sea, Esso’s discharge of the oil was in such close proximity to the sea that the oil flowed there by gravity alone.” In the late 1960s and early 1970s, the Potomac River in Washington, D.C., was foul-smelling, not swimmable, and unfishable as it flowed past the Lincoln and Jefferson Memorials. As the New York Times reported at the time, “The heat of summer is enveloping the nation’s capital, and with it has come the annual resurgence of a problem residents have come increasingly to dread: a stomach-turning miasma rising from the Potomac River.” Congress responded by exercising its powers to “restore and maintain … the Nation’s waters,” with a particularly aggressive focus on point source discharges. Noxious rivers across the country, including the Potomac, were brought back to health. The text of the Clean Water Act of 1972 now prohibits any unpermitted discharge of pollution “to navigable waters from any point source.” Maui County posits that “from” in this statute means the most immediate, intervening conveyance before pollution touches a protected body of water. If the last thing between the county’s waste and the ocean is groundwater, then the groundwater is the “source” and no federal permit should be required. The lower court rejected that theory. So long as pollution was “fairly traceable” to the wells where Maui discharged its treated sewage water, then the county could be held liable. And at oral argument, several justices also seemed to pour cold water on Maui County’s effort to dodge responsibility. Justice Stephen Breyer asked, “So what happens if you just take the pipe and you decide what we’ll do is we’re going to end the pipe 35 feet from the river or the ocean or something?” There would be no liability under the statute at issue, the county argued. Simply moving an outfall pipe back from the water’s edge would be enough to avoid that permitting process. Justice Breyer made it clear that this explanation would not fly with him, as it would give polluters an “absolute road map” to evade federal obligations under the Clean Water Act. Justices Elena Kagan and Sonia Sotomayor were quick to echo Justice Breyer’s concerns, and they were not alone. Based on follow-up questions, it seems that at least two of the Court’s conservative leaders—Justice Brett Kavanaugh and Chief Justice John Roberts—were similarly troubled. The Chief Justice even referred to Maui County’s explanation as “the extreme problem on the other side” during a back-and-forth exchange with the environmental groups’ lawyer. But the justices reserved plenty of skepticism for all litigants, worrying that the “fairly traceable” test favored by environmentalists would be subject to manipulation. A series of hypotheticals—including one about a punch bowl spiked with whiskey that might be “fairly traceable” to a distillery in Scotland—explored how far the test might reach. Justice Breyer came back to the dilemma a few times, explaining, “So we’re looking, at least I am, for something not quite as broad as traceability, but something that doesn’t run into the problems” of a polluter evading federal enforcement by pumping its pollution into groundwater. He floated a possible solution, wondering if indirect discharges would fall under the purview of the Clean Water Act so long as they were “the functional equivalent of a direct discharge.” Chief Justice Roberts appeared intrigued by Justice Breyer’s idea, but he was not entirely on board with it—at least not yet. “I don’t mean to be critical of the author of the phrase, but what does ‘functional equivalent’ mean?,” he asked. “It sounds … as vague as ‘fairly traceable.’” The environmental groups’ lawyer offered an insightful, practical observation about water contamination: “In order to establish traceability and foreseeability and all that, you need a big discharger like the petitioner here.” In other words, de minimis amounts of pollution—a few drops from a whiskey flask, for example—will not be traceable by the time they reach a river, and thus will not require a federal permit. Even if thousands of whiskey bottles were poured out onto the ground, any contamination that might reach an inebriated fish would be too diffuse to trace back to one, identifiable “point source.” The debate should not be over “direct” or “indirect” discharges from sewage treatment wells, as the County of Maui frames it. Rather, the case is really about “discrete” versus “diffuse” discharges. Discrete pollution is covered as a point source; diffuse pollution is not. The county’s wastewater wells? Yes, covered. A drinker’s whiskey flask? No. If the Esso Standard Oil Company had to remediate its pollution 52 years ago, then it would seem that the County of Maui should not be let off the hook today. It might be that the Supreme Court rejects a “fairly traceable” test, but a new test—Justice Breyer’s “functional equivalent” proposal or something similar—could ensure that some meaningful portion of the Clean Water Act survives intact
The Clean Water Act Might Just Survive This Latest Attack
No full textThe most important Clean Water Act case in more than a decade was recently argued before the U.S. Supreme Court. At issue in County of Maui v. Hawaii Wildlife Fund are clean water values that have undergirded American law for more than 50 years. Conservationists have been worried that this case could gut one of the foundations of modern environmental law. But the justices’ questions during oral argument provide room for cautious optimism. The Clean Water Act just might survive this challenge. Diminished, perhaps, but not defeated. Maui County, which remains dependent on nearly 3 million tourist visits to its iconic beaches each year, has been running millions of gallons of treated sewage through underground injection wells. Those wells—by their very design—discharge pollution into groundwater that then flows to the Pacific Ocean. A coalition of state and local environmental groups, represented by the national nonprofit environmental law organization Earthjustice, have fought to require Maui County to seek a permit under the Clean Water Act. Environmentalists want Maui County to stop fouling its own nest, so to speak. On behalf of Anderson County, South Carolina, and Decatur County, Tennessee, I filed a friend-of-the-court brief in support of the respondents. Both of these conservative, Southern counties have suffered water contamination linked to out-of-state industrial polluters, and both support Clean Water Act enforcement to address their problems. In Anderson County, pollution travels as little as 400 feet through soil and groundwater—roughly the length of the Supreme Court building—before reaching a tributary of the Savannah River. For several years, Maui County has resisted pressure to clean up contamination linked to its disposal of wastewater. It insists that county wells are not conveying any pollution directly to the ocean. The intervening groundwater, the county asserts, prevents it from ever needing to obtain a federal permit. And it is that argument that would blow a massive hole in a federal law that has protected America’s waters for more than 40 years. Maui County’s argument to weaken the Clean Water Act’s point source program is not a new one. Back in 1967, the Esso Standard Oil Company protested that “the remoteness of its activities from the shoreline” should exempt it from liability under a precursor to our modern Clean Water Act. But the U.S. Court of Appeals for the Third Circuit rejected that argument, explaining that the laws of physics buttressed the laws of liability in force at the time: “Though Esso did not run a pipe to the water’s edge and discharge petroleum products directly into the sea, Esso’s discharge of the oil was in such close proximity to the sea that the oil flowed there by gravity alone.” In the late 1960s and early 1970s, the Potomac River in Washington, D.C., was foul-smelling, not swimmable, and unfishable as it flowed past the Lincoln and Jefferson Memorials. As the New York Times reported at the time, “The heat of summer is enveloping the nation’s capital, and with it has come the annual resurgence of a problem residents have come increasingly to dread: a stomach-turning miasma rising from the Potomac River.” Congress responded by exercising its powers to “restore and maintain … the Nation’s waters,” with a particularly aggressive focus on point source discharges. Noxious rivers across the country, including the Potomac, were brought back to health. The text of the Clean Water Act of 1972 now prohibits any unpermitted discharge of pollution “to navigable waters from any point source.” Maui County posits that “from” in this statute means the most immediate, intervening conveyance before pollution touches a protected body of water. If the last thing between the county’s waste and the ocean is groundwater, then the groundwater is the “source” and no federal permit should be required. The lower court rejected that theory. So long as pollution was “fairly traceable” to the wells where Maui discharged its treated sewage water, then the county could be held liable. And at oral argument, several justices also seemed to pour cold water on Maui County’s effort to dodge responsibility. Justice Stephen Breyer asked, “So what happens if you just take the pipe and you decide what we’ll do is we’re going to end the pipe 35 feet from the river or the ocean or something?” There would be no liability under the statute at issue, the county argued. Simply moving an outfall pipe back from the water’s edge would be enough to avoid that permitting process. Justice Breyer made it clear that this explanation would not fly with him, as it would give polluters an “absolute road map” to evade federal obligations under the Clean Water Act. Justices Elena Kagan and Sonia Sotomayor were quick to echo Justice Breyer’s concerns, and they were not alone. Based on follow-up questions, it seems that at least two of the Court’s conservative leaders—Justice Brett Kavanaugh and Chief Justice John Roberts—were similarly troubled. The Chief Justice even referred to Maui County’s explanation as “the extreme problem on the other side” during a back-and-forth exchange with the environmental groups’ lawyer. But the justices reserved plenty of skepticism for all litigants, worrying that the “fairly traceable” test favored by environmentalists would be subject to manipulation. A series of hypotheticals—including one about a punch bowl spiked with whiskey that might be “fairly traceable” to a distillery in Scotland—explored how far the test might reach. Justice Breyer came back to the dilemma a few times, explaining, “So we’re looking, at least I am, for something not quite as broad as traceability, but something that doesn’t run into the problems” of a polluter evading federal enforcement by pumping its pollution into groundwater. He floated a possible solution, wondering if indirect discharges would fall under the purview of the Clean Water Act so long as they were “the functional equivalent of a direct discharge.” Chief Justice Roberts appeared intrigued by Justice Breyer’s idea, but he was not entirely on board with it—at least not yet. “I don’t mean to be critical of the author of the phrase, but what does ‘functional equivalent’ mean?,” he asked. “It sounds … as vague as ‘fairly traceable.’” The environmental groups’ lawyer offered an insightful, practical observation about water contamination: “In order to establish traceability and foreseeability and all that, you need a big discharger like the petitioner here.” In other words, de minimis amounts of pollution—a few drops from a whiskey flask, for example—will not be traceable by the time they reach a river, and thus will not require a federal permit. Even if thousands of whiskey bottles were poured out onto the ground, any contamination that might reach an inebriated fish would be too diffuse to trace back to one, identifiable “point source.” The debate should not be over “direct” or “indirect” discharges from sewage treatment wells, as the County of Maui frames it. Rather, the case is really about “discrete” versus “diffuse” discharges. Discrete pollution is covered as a point source; diffuse pollution is not. The county’s wastewater wells? Yes, covered. A drinker’s whiskey flask? No. If the Esso Standard Oil Company had to remediate its pollution 52 years ago, then it would seem that the County of Maui should not be let off the hook today. It might be that the Supreme Court rejects a “fairly traceable” test, but a new test—Justice Breyer’s “functional equivalent” proposal or something similar—could ensure that some meaningful portion of the Clean Water Act survives intact
Variations on the Author
Get PDF“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Get PDFWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
Federalism and Environmental Advocacy
No full textLast year, I wrote that public interest advocates should view environmental federalism as an opportunity to promote state-law environmental protections. At the time, the U.S. Supreme Court had just upheld a state-law ban on uranium mining. In Virginia Uranium v. Warren, the Supreme Court rejected a mining industry claim that Virginia’s conservation law was preempted by the federal Atomic Energy Act. Justice Neil Gorsuch authored the plurality opinion, joined by Justices Clarence Thomas and Brett Kavanaugh. Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan concurred in the Court’s judgment only. In rejecting the preemption claim, Justice Gorsuch outlined a limited view of the Supremacy Clause. “Invoking some brooding federal interest or appealing to a judicial policy preference,” he wrote, “should never be enough to win preemption of a state law.” Environmental groups heralded Virginia Uranium as a major victory. The question now is whether Justice Gorsuch’s plurality opinion in that case points the way toward a broader strategy for environmental activists. Will state-centric environmentalism have some staying power? Three decisions from the Supreme Court’s latest term—Atlantic Richfield, County of Maui, and Cowpasture River Preservation Association—are beginning to give us some clues. The first environmental case this past year to pit state environmental law against a sweeping, federal regulatory regime was Atlantic Richfield v. Christian. In this case, the Court considered Montanans’ common law access to restoration damages—namely, returning properties to pre-contamination conditions, even if the costs of remediation exceed the value of the properties. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) directs the U.S. Environmental Protection Agency (EPA) to manage environmental cleanups at some of the country’s worst hazardous pollution sites, which EPA places on a national priorities list. These sites are known as superfund sites. The question before the Court in Atlantic Richfield was whether state common-law claims could supplement EPA’s cleanup plan at a massive, 300-square mile superfund site surrounding the now-defunct Anaconda copper mine, which first began operations 140 years ago. From its earliest days, mining operations at Anaconda sparked controversy. In Bliss v. Anaconda Copper Mining Co., a case from 1909, farmers near the mine site complained that Anaconda caused such quantities of sulfur and arsenic to be “discharged into the air” that nearby crops and livestock “were being poisoned.” Decades before Bliss, at least as far back as 1870, Montana courts had adjudicated similar environmental claims at other sites. In the recent case before the Supreme Court, the Atlantic Richfield Company insisted that CERCLA should largely preempt this long history of Montana law and that the case should be dismissed on jurisdictional grounds. The Court was nearly unanimous—with only Justice Samuel Alito dissenting—in rejecting such a broad view of the federal superfund scheme, highlighting a “‘deeply rooted presumption in favor of concurrent state court jurisdiction.’” And so, an appeal to federalism appears to have won the jurisdictional battle in Atlantic Richfield. The Court upheld the authority of Montana courts to hear state law challenges to superfund cleanups. But state-based environmentalists did not win the war—at least not outright. The Court in Atlantic Richfield went on to address the merits of the Montana landowners’ claims for cleanup costs under state law. The Court, with Justices Gorsuch and Thomas now dissenting, held that Montana landowners could only secure remediation under state law if they “first obtained EPA approval for the remedial work they seek to carry out.” In other words, state law might supplement a superfund remedy, but only if EPA decreed that the supplemental measures would not undermine a federal plan. Justice Gorsuch’s views on federalism anchored his dissent on this issue. “The landowners here proceeded as landowners historically have: They sought remedies for the pollution on their lands in state court under state law.” For Justice Gorsuch, “their choice can come as no surprise.” “The federal government enjoys no general power to regulate private lands; it may intervene only consistent with the Commerce Clause or some other constitutionally enumerated power,” he continued. Justice Gorsuch was particularly forceful in underscoring the acute environmental threats that the landowners faced and that EPA had overlooked. For example, at least one daycare owner’s playground was left un-remediated by EPA, despite the presence of alarmingly high arsenic levels in the soil. As director of the University of Virginia’s environmental law clinic, I worked with our students on an amicus brief on behalf of the Clark Fork Coalition and Montana Environmental Information Center, which argued that Congress added CERCLA onto a “well-established body of state law … with savings clauses that guarantee the federal act will supplement—but not supplant—Montana’s pre-existing, common law damage remedies.” Justice Gorsuch articulated a similar point, explaining that “everything in CERCLA suggests that it seeks to supplement, not supplant, traditional state law remedies and promote, not prohibit, efforts to restore contaminated land.” Just three days after Atlantic Richfield, the Court announced its decision in County of Maui v. Hawaii Wildlife Fund, a blockbuster Clean Water Act case. The thrust of the dispute was whether the federal Clean Water Act would require a “point source” permit for a local government’s wastewater treatment wells, or whether regulation of those wells would be left to a woefully inadequate state-managed program. On behalf of two local governments struggling to resolve their own water contamination problems, I again coauthored an amicus brief that articulated a pro-environment view in favor of federal regulation. In addition to provisions defining discharges that fall under federal control, the Clean Water Act includes a citizen suit provision that authorizes municipalities to “commence a civil action” to enforce point source requirements. “In situations such as these, where local water quality is harmed by point source pollution, municipalities have the statutorily guaranteed authority to respond,” my coauthors and I explained in our brief. If the Court accepted the County of Maui’s position and held that indirect discharges were not covered under the Clean Water Act, it would effectively repeal the citizen suit provision in many cases and “remove a vital tool that Congress crafted for local government amici to protect our own communities.” Fortunately, the majority in County of Maui confirmed that the Clean Water Act’s permitting requirement applies to direct discharges into federally protected waters and indirect discharges that are the “functional equivalent” of a direct discharge. In a remarkable victory for environmentalists, the Court remanded the case to lower courts and made it clear that a federal permit is almost certainly required for the county’s wastewater treatment wells. Justice Thomas and Justice Gorsuch dissented on federalism grounds. Justice Thomas opined that his interpretation would “tie the statute more closely to navigable waters, on the theory that they are at least a channel of these kinds of commerce” encompassed by Article 1, Section 8 of the U.S. Constitution, which enumerates Congress’s powers. The third environmental case from this term was U.S. Forest Service v. Cowpasture River Preservation Association. In this case, the Court considered whether parts of the Appalachian Trail might qualify as National Park Service lands, thereby protecting them from a proposed natural gas pipeline. With incredible work from our clinic students, I again submitted an amicus brief. On behalf of the City of Staunton and Nelson County, we explained how the Appalachian Trail experience was important to local tourism economies. That recreational experience, we argued, merited the same level of protection that any other national park would receive. Yet the Court ruled in favor of the pipeline company and upheld the U.S. Forest Service’s authority to grant a permit under the Mineral Leasing Act. Justice Thomas, joined by all but Justices Kagan and Sotomayor, wrote that awarding a heightened level of protection to the trail would raise “striking implications for federalism” and could imperil private property rights where national historic and scenic trails “cross lands owned by states, local governments, and private landowners.” So, what do we make of these cases? On the one hand, Justice Gorsuch’s dissent in Atlantic Richfield confirms that there are sympathetic members of the Court who are unsettled by the federal government’s apparent failure to resolve environmental problems, especially when state law might provide a fuller remedy. Yet the Court’s federalists appear not to be swayed when the shoe is on the other foot and the environmental failure is the result of an inadequate state program. “We are not a superlegislature (or super-EPA) tasked with making good policy,” Justice Thomas wrote in his County of Maui dissent. And again in the Cowpasture case, the Court held that federalism doctrine cut against environmentalists’ concerns. With the limited data at hand from the Court’s latest term, it seems that appeals to federalism are proving to be a mixed bag for environmentalists
Environmental Federalism as Forum Shopping
Get PDFPublic policy advocates of all stripes—litigators, politicians, or newspaper columnists—invoke principles of federalism when they are imploring Congress to respect limits imposed by Article I, and when they are insisting that a state legislature accede to the supremacy of a duly enacted national law, invoking Article VI. Yet historically, application of the term, “federalism,” at least in the context of environmental law, has been driven far more by pragmatic considerations than constitutional ones.
This pragmatic approach should not be surprising because, at its core, federalism simply asks what is the right level of government to solve a given problem. After an environmental problem has been discovered—a fish kill or noxious smell emanating from a nearby river, for example—our thoughts immediately turn to how this problem can be solved. Figuring out how we get to “clean,” then requires us to consider who will be in charge of making decisions throughout the clean-up process. Who decides which actors are responsible for contamination from a toxic waste landfill that has leached into that nearby river? Who decides who pays for the clean-up? Who decides when the clean-up is complete?
This critical question—who decides—is central to debates on environmental federalism. In the example of toxic waste spilled into a river, federalism doctrines will consider the roles of the local government that zoned for the landfill, the state government that issued a permit for the landfill, and the federal government that established regulations affecting toxic waste management from cradle to grave.
The purpose of this Article, therefore, is to document how debates over environmental federalism have indeed been driven far more by pragmatic factors (like forum shopping by litigants) than by constitutional considerations (like concern for the limits of Congress’s enumerated powers). Part I briefly pays its respects to the historical, constitutional underpinnings of federalism. Parts II, III, and IV then give an overview of environmental federalism in practice, focusing on federal land management in the Western United States (Part II), the history of air pollution regulation (Part III), and the current debate over climate policy (Part IV). Building off of the study of these experiences, Part V then culminates with an analysis of federalism as forum shopping—i.e., driven by the pragmatic concerns of stakeholders as opposed to any commitment to a particular constitutional philosophy or states’ rights
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Federalism and Environmental Advocacy
No full textLast year, I wrote that public interest advocates should view environmental federalism as an opportunity to promote state-law environmental protections. At the time, the U.S. Supreme Court had just upheld a state-law ban on uranium mining. In Virginia Uranium v. Warren, the Supreme Court rejected a mining industry claim that Virginia’s conservation law was preempted by the federal Atomic Energy Act. Justice Neil Gorsuch authored the plurality opinion, joined by Justices Clarence Thomas and Brett Kavanaugh. Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan concurred in the Court’s judgment only. In rejecting the preemption claim, Justice Gorsuch outlined a limited view of the Supremacy Clause. “Invoking some brooding federal interest or appealing to a judicial policy preference,” he wrote, “should never be enough to win preemption of a state law.” Environmental groups heralded Virginia Uranium as a major victory. The question now is whether Justice Gorsuch’s plurality opinion in that case points the way toward a broader strategy for environmental activists. Will state-centric environmentalism have some staying power? Three decisions from the Supreme Court’s latest term—Atlantic Richfield, County of Maui, and Cowpasture River Preservation Association—are beginning to give us some clues. The first environmental case this past year to pit state environmental law against a sweeping, federal regulatory regime was Atlantic Richfield v. Christian. In this case, the Court considered Montanans’ common law access to restoration damages—namely, returning properties to pre-contamination conditions, even if the costs of remediation exceed the value of the properties. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) directs the U.S. Environmental Protection Agency (EPA) to manage environmental cleanups at some of the country’s worst hazardous pollution sites, which EPA places on a national priorities list. These sites are known as superfund sites. The question before the Court in Atlantic Richfield was whether state common-law claims could supplement EPA’s cleanup plan at a massive, 300-square mile superfund site surrounding the now-defunct Anaconda copper mine, which first began operations 140 years ago. From its earliest days, mining operations at Anaconda sparked controversy. In Bliss v. Anaconda Copper Mining Co., a case from 1909, farmers near the mine site complained that Anaconda caused such quantities of sulfur and arsenic to be “discharged into the air” that nearby crops and livestock “were being poisoned.” Decades before Bliss, at least as far back as 1870, Montana courts had adjudicated similar environmental claims at other sites. In the recent case before the Supreme Court, the Atlantic Richfield Company insisted that CERCLA should largely preempt this long history of Montana law and that the case should be dismissed on jurisdictional grounds. The Court was nearly unanimous—with only Justice Samuel Alito dissenting—in rejecting such a broad view of the federal superfund scheme, highlighting a “‘deeply rooted presumption in favor of concurrent state court jurisdiction.’” And so, an appeal to federalism appears to have won the jurisdictional battle in Atlantic Richfield. The Court upheld the authority of Montana courts to hear state law challenges to superfund cleanups. But state-based environmentalists did not win the war—at least not outright. The Court in Atlantic Richfield went on to address the merits of the Montana landowners’ claims for cleanup costs under state law. The Court, with Justices Gorsuch and Thomas now dissenting, held that Montana landowners could only secure remediation under state law if they “first obtained EPA approval for the remedial work they seek to carry out.” In other words, state law might supplement a superfund remedy, but only if EPA decreed that the supplemental measures would not undermine a federal plan. Justice Gorsuch’s views on federalism anchored his dissent on this issue. “The landowners here proceeded as landowners historically have: They sought remedies for the pollution on their lands in state court under state law.” For Justice Gorsuch, “their choice can come as no surprise.” “The federal government enjoys no general power to regulate private lands; it may intervene only consistent with the Commerce Clause or some other constitutionally enumerated power,” he continued. Justice Gorsuch was particularly forceful in underscoring the acute environmental threats that the landowners faced and that EPA had overlooked. For example, at least one daycare owner’s playground was left un-remediated by EPA, despite the presence of alarmingly high arsenic levels in the soil. As director of the University of Virginia’s environmental law clinic, I worked with our students on an amicus brief on behalf of the Clark Fork Coalition and Montana Environmental Information Center, which argued that Congress added CERCLA onto a “well-established body of state law … with savings clauses that guarantee the federal act will supplement—but not supplant—Montana’s pre-existing, common law damage remedies.” Justice Gorsuch articulated a similar point, explaining that “everything in CERCLA suggests that it seeks to supplement, not supplant, traditional state law remedies and promote, not prohibit, efforts to restore contaminated land.” Just three days after Atlantic Richfield, the Court announced its decision in County of Maui v. Hawaii Wildlife Fund, a blockbuster Clean Water Act case. The thrust of the dispute was whether the federal Clean Water Act would require a “point source” permit for a local government’s wastewater treatment wells, or whether regulation of those wells would be left to a woefully inadequate state-managed program. On behalf of two local governments struggling to resolve their own water contamination problems, I again coauthored an amicus brief that articulated a pro-environment view in favor of federal regulation. In addition to provisions defining discharges that fall under federal control, the Clean Water Act includes a citizen suit provision that authorizes municipalities to “commence a civil action” to enforce point source requirements. “In situations such as these, where local water quality is harmed by point source pollution, municipalities have the statutorily guaranteed authority to respond,” my coauthors and I explained in our brief. If the Court accepted the County of Maui’s position and held that indirect discharges were not covered under the Clean Water Act, it would effectively repeal the citizen suit provision in many cases and “remove a vital tool that Congress crafted for local government amici to protect our own communities.” Fortunately, the majority in County of Maui confirmed that the Clean Water Act’s permitting requirement applies to direct discharges into federally protected waters and indirect discharges that are the “functional equivalent” of a direct discharge. In a remarkable victory for environmentalists, the Court remanded the case to lower courts and made it clear that a federal permit is almost certainly required for the county’s wastewater treatment wells. Justice Thomas and Justice Gorsuch dissented on federalism grounds. Justice Thomas opined that his interpretation would “tie the statute more closely to navigable waters, on the theory that they are at least a channel of these kinds of commerce” encompassed by Article 1, Section 8 of the U.S. Constitution, which enumerates Congress’s powers. The third environmental case from this term was U.S. Forest Service v. Cowpasture River Preservation Association. In this case, the Court considered whether parts of the Appalachian Trail might qualify as National Park Service lands, thereby protecting them from a proposed natural gas pipeline. With incredible work from our clinic students, I again submitted an amicus brief. On behalf of the City of Staunton and Nelson County, we explained how the Appalachian Trail experience was important to local tourism economies. That recreational experience, we argued, merited the same level of protection that any other national park would receive. Yet the Court ruled in favor of the pipeline company and upheld the U.S. Forest Service’s authority to grant a permit under the Mineral Leasing Act. Justice Thomas, joined by all but Justices Kagan and Sotomayor, wrote that awarding a heightened level of protection to the trail would raise “striking implications for federalism” and could imperil private property rights where national historic and scenic trails “cross lands owned by states, local governments, and private landowners.” So, what do we make of these cases? On the one hand, Justice Gorsuch’s dissent in Atlantic Richfield confirms that there are sympathetic members of the Court who are unsettled by the federal government’s apparent failure to resolve environmental problems, especially when state law might provide a fuller remedy. Yet the Court’s federalists appear not to be swayed when the shoe is on the other foot and the environmental failure is the result of an inadequate state program. “We are not a superlegislature (or super-EPA) tasked with making good policy,” Justice Thomas wrote in his County of Maui dissent. And again in the Cowpasture case, the Court held that federalism doctrine cut against environmentalists’ concerns. With the limited data at hand from the Court’s latest term, it seems that appeals to federalism are proving to be a mixed bag for environmentalists
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