Judge Alito's Environmental Record

New York Law Journal

December 23, 2005
by Stephen L. Kass and Jean McCarrol

In our August column (New York Law Journal, Aug. 26, 2005, at p. 3), we reviewed the environmental record of then-Judge John G. Roberts of the U.S. Court of Appeals for the District of Columbia Circuit, who is now Chief Justice of the U.S. Supreme Court. We now examine the environmental record of the most recent nominee to the Supreme Court, Judge Samuel A. Alito Jr., of the U.S. Court of Appeals for the Third Circuit.

Although Judge Alito has been a judge for 15 years, far longer than Justice Roberts' brief service on the District of Columbia circuit court, and has decided many more environmental cases, we find it no easier to predict his role in shaping environmental jurisprudence on the Supreme Court. We have reviewed 14 opinions involving environmental laws and issues that Judge Alito wrote as a Third Circuit judge, as well as four decisions by Third Circuit panels on which he sat without writing the opinion and two briefs to the Supreme Court on environmental cases that Judge Alito wrote or participated in while he was an assistant to the U.S. solicitor general in the 1980s.

Few of Judge Alito's cases addressed the most critical environmental issues likely to come before the Supreme Court in the next few years, and few reveal very much about Judge Alito's views on environmental issues. Like Justice Roberts, Judge Alito is a careful draftsman in his opinions, which largely consist of close analysis of statutory texts. He frequently pays homage to the principle of judicial deference to administrative agencies, although, as we discuss in this column, he does not always adhere to that principle in practice. If he has any receptivity to environmental concerns (or lack thereof), his opinions do not reveal it. His opinions do reveal, however, sympathy for business concerns--a sympathy that appears to have grown stronger during his tenure on the circuit court.

Judge Alito's Opinions

In four of Judge Alito's most recent opinions in environmental cases, he ruled in favor of corporations challenging environmental agency actions or facing citizen complaints against corporate action. Nextel West Corp. v. Unity Township[1] concerned Nextel's application for a zoning variance to construct a 250-foot radio tower. Judge Alito's decision, which reversed the district court and revived Nextel's claim of 'unreasonable discrimination' under the federal Telecommunications Act of 1996, turned on issues of mootness and ripeness, not substantive environmental issues. In Alden Leeds, Inc. v. Occupational Safety and Health Review Comm'n,[2] Judge Alito held that a citation regarding a swimming pool chemical distributor's improper storage of chemicals gave insufficient notice to the violator as to the scope of the prohibited conduct and thus the violator could not be penalized for subsequent violations as 'failure to abate' violations. In Khodara Environmental, Inc. v. Blakey,[3] Judge Alito ruled for a landfill developer against state environmental and federal aviation officials, holding that the developer had standing to challenge a federal statute barring its landfill, that its claim was ripe even though it had not yet obtained required state permits to construct the landfill, and that the federal statute did not apply to the developer's landfill because it was 'grandfathered'--since the developer had commenced construction before the statute was enacted. Judge Alito's ruling in South Camden Citizens in Action v. New Jersey Department of Environmental Protection [4] was merely an order staying a district court's injunction against intervener St. Lawrence Cement Co.'s operation of its plant pending a decision on the appeal from the district court's decision, but it revealed Judge Alito's concern for the company's potential economic injury.

Several of Judge Alito's environmental cases involved insurance claims [5] or bankruptcy claims[6] and did not address substantive environmental issues. At least one of his bankruptcy decisions, Commonwealth of Pennsylvania v. Conroy, resulted in the availability of more money for environmental cleanup. Two other cases had a similar result even though Judge Alito's opinions did not address substantive environmental issues.[7] One of Judge Alito's most interesting opinions was in Southwestern Pennsylvania Growth Alliance v. Browner.[8] An organization of manufacturers and local governments in the Pittsburgh-Beaver Valley area sought review of the U.S. Environmental Protection Agency's denial of a petition to redesignate the area's status under the Clean Air Act from 'nonattainment' of ozone standards to 'attainment.' The alliance argued, inter alia, that the area's exceeding the ozone standard largely resulted from pollution drifting into the area from the west. Judge Alito held that the EPA's interpretation of the statute--that the origin of the pollution causing the ozone excesses was legally irrelevant to the attainment-nonattainment determination--was entitled to judicial deference. He thus upheld the EPA's determination of nonattainment. At the outset of his opinion, however, he made clear where his sympathies lay: 'Although we are sympathetic to the view expressed by many within the area that this rule threatens serious economic harm, we recognize that our role as a reviewing court is strictly limited.'[9] In another case in which Judge Alito revealed his sympathy for business interests, he ruled in favor of a major manufacturer of asbestos-containing materials (ACM). In re Asbestos Litigation, Pfizer Inc. v. Giles  was part of a nationwide class action by approximately 30,000 school districts[10] against former manufacturers concerning ACM in their schools. The opinion focused not on the validity of the asbestos claims, but rather on Pfizer's petition for a writ of mandamus seeking review of the district court's denial of Pfizer's motion for summary judgment dismissing conspiracy claims against Pfizer. Even though Judge Alito acknowledged that mandamus is an extraordinary remedy to be used sparingly, he found that the district court's decision denying summary judgment on the conspiracy claims was clearly wrong and that forcing Pfizer to wait until trial to vindicate itself on those claims would threaten Pfizer's First Amendment rights to join associations and contribute to them.

Other Alito Cases

Perhaps even more than the opinions he authored, four other environmental cases in which Judge Alito participated reveal his reflexive pro-business sympathies. In three of those cases, Judge Alito was part of the majority ruling in favor of an alleged environmental polluter. In the most recent of those cases, United States v. Allegheny Ludlum Co.,[11] the panel ruled that a corporation violating its Clean Water Act permit was entitled to a 'laboratory error' defense, that the lower court had possibly inflated the penalty by 'inappropriately' calculating the violator's economic benefit from the violations, and that violation of a monthly permit limit should not necessarily translate into violations for each day of the month. The dissenting judge criticized the majority for not giving deference to the trial court on one of the factors contributing to the economic benefit calculation.

In W.R. Grace v. U.S. Environmental Protection Agency,[12] the two-judge majority of the panel, including Judge Alito, ruled that the EPA's determination of a cleanup standard for ammonia in a Safe Drinking Water Act case was arbitrary and capricious and that the EPA's determination of a remediation plan lacked a rational basis. The dissenting judge criticized the majority for failure to defer to the administrative agency, particularly on matters within the agency's technical expertise. Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron[13] involved violations of a Clean Water Act permit. On an initial challenge to standing, the district court had found that the plaintiff had standing, and the appellate court had affirmed. Subsequently, the district court found liability, determined that the appropriate penalty was $2.625 million, and awarded the plaintiff attorney's fees and expenses. Magnesium Elektron appealed and asked the Third Circuit to revisit the standing issue. Although it did not deny the violations or challenge the calculation of penalties, Magnesium Elektron argued that, because the district court had found that the violations (involving zirconium carbonate) did not harm the waterway, the plaintiff could not have been injured and thus had no standing to sue. The majority, including Judge Alito, agreed and vacated the district court's judgment.

In the last of these four cases, Pennsylvania Coal Association v. Babbitt,[14] the panel of which Judge Alito was part unanimously ruled against an industry association, holding that Pennsylvania's surface mining regulatory program was not inconsistent with the federal Surface Mining Control and Reclamation Act even though it was more stringent, and could therefore properly be approved by the secretary of the Interior under that act.

Briefs to the Supreme Court

While an assistant to the solicitor general, Judge Alito participated in the drafting of two briefs to the Supreme Court in environmental cases. U.S. Environmental Protection Agency v. Natural Resources Defense Council,[15] which Judge Alito also argued, concerned national pre-treatment standards under the Clean Water Act and whether the EPA should be permitted to grant variances from general standards to individual plants on the basis of 'fundamentally different factors.' On behalf of the EPA, Judge Alito argued that the EPA needed the flexibility to grant such variances and that the EPA's construction of the statute to permit them was reasonable and entitled to deference. The Supreme Court accepted that argument in a 5-4 decision, over dissents by Justices Thurgood Marshall, Harry A. Blackmun, John Paul Stevens and Sandra Day O'Connor. Exxon Corp. v. Hunt [16] concerned the issue of whether the federal Comprehensive Environmental Response, Compensation and Liability Act preempted the New Jersey Spill Act. In an amicus brief on behalf of the U.S. government, Judge Alito argued for partial preemption. The Supreme Court rejected the government's formulation for partial preemption but held that partial preemption based on a different formulation was appropriate.


Judge Alito's carefully crafted opinions in the environmental cases we reviewed generally focused on narrow questions of statutory interpretation or procedural issues like ripeness, mootness and the availability of a writ of mandamus. Two cases involved the potentially important issue of standing; in those, Judge Alito ruled that a landfill developer had standing and that an environmental organization did not. But the cases are very different, and two cases are probably insufficient to reveal a pattern. Yet Judge Alito's clear sympathy for business interests, as well as the narrow view of Congress' power under the Commerce Clause revealed in his decisions in other areas of law, lead us to fear that, as a Justice of the Supreme Court, he would do little to preserve the federal environmental statutes that help to reduce environmental degradation and preserve the nation's natural resources.

Stephen L. Kass and Jean M. McCarroll, together with Clifford P. Case III, direct the environmental practice group at Carter Ledyard & Milburn.

Reprinted with permission from the December 23, 2005 edition of the New York Law Journal
© 2005 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.


[1] 282 F3d 257 (3d Cir. 2002)

[2] 298 F3d 256 (3d Cir. 2002)

[3] 376 F3d 187 (3d Cir. 2004)

[4] 2001 WL 34131402 (3d Cir. 2001)

[5] See Acceptance Ins. Co. v. Sloane, 263 F3d 278 (3d Cir. 2001) (murder at an unused coal mine); Armotek Industries, Inc. v. Employers Ins. of Wausau, 952 F2d 756 (3d Cir. 1991) (injury to property occurred outside coverage period; spill of acid was not sudden and accidental)

[6] See Al Tech Specialty Steel Corp. v. Allegheny Int'l Credit Corp., 104 F3d 601 (3d Cir. 1997) (claims under Comprehensive Environmental Response, Compensation and Liability Act and New York Oil Spill Act); Commonwealth of Pennsylvania Department of Environmental Resources v. Conroy, 24 F3d 568 (3d Cir. 1994) (agency's cleanup and administrative expenses for cleanup of debtor's abandoned property may be claimed against debtor's estate)

[7] See Commonwealth of Pennsylvania Department of Environmental Resources v. U.S. Postal Service, 13 F3d 62 (3d Cir. 1993) (Postal Service subject to civil penalties for violations of Pennsylvania environmental laws because no exception to waiver of sovereign immunity applies); Manor Care, Inc. v. Yaskin, 950 F2d 122 (3d Cir. 1991) (Comprehensive Environmental Response, Compensation and Liability Act does not preempt New Jersey Spill Act; thus, potentially responsible party must pay for state's share of cleanup costs)

[8] 121 F3d 106 (3d Cir. 1997)

[9] Id. at 109

[10] 46 F3d 1284 (3d Cir. 1994)

[11] 366 F3d 164 (3d Cir. 2004)

[12] 261 F3d 330 (3d Cir. 2001)

[13] 123 F3d 111 (3d Cir. 1997)

[14] 63 F3d 231 (3d Cir. 1995)

[15] 470 US 116 (1985)

[16]  475 US 355 (1986)

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