The Environmental Opinions of Judge Samuel Alito
CRS Report for Congress
The Environmental Opinions
of Judge Samuel Alito
Robert Meltz
Legislative Attorney
American Law Division
Summary
The nomination of Judge Samuel A. Alito, Jr., to serve on the Supreme Court has
prompted close scrutiny of his judicial opinions during 15 years as an appellate judge.
A review of the 34 opinions in environmental cases in which Judge Alito participated
generally reveals careful reasoning based on straightforward readings of statutes or
regulations, without broad philosophical assertions. At the same time, a small number
of his opinions arguably suggest endorsement of larger jurisprudential principles that
may present hurdles to environmental plaintiffs (through narrow interpretation of a
constitutional standing requirement), government enforcement (through stringent
evidentiary requirements), and congressional legislating (through a narrow reading of
the Commerce Clause).
The recent nomination of Judge Samuel A. Alito, Jr., to serve as an Associate Justice
on the U.S. Supreme Court has generated considerable interest in his judicial opinions
during his 15 years as an appellate judge. Judge Alito has served on the United States
Court of Appeals for the Third Circuit since April 30, 1990.
This report is based on a review of all the reported environmental decisions of the
Third Circuit in which Judge Alito was on the three-judge panel that initially decided the
case, or in the en banc group of judges that heard the case on review of the panel
decision.1 It does not confine itself, as did the recently reported Washington Post study,
to Third Circuit opinions in which there was a dissent.2 We construe “environmental”
broadly to include insurance coverage, Fourth Amendment, and other issues arising in an
environmental context — and included 34 decisions in our review. Not surprisingly given
the heavy concentration of industrial activity in some of the states within the Third
1 As identified by the Federal Environmental Cases database in Westlaw.
2 Amy Goldstein and Sarah Cohen, Alito, In and Out of the Mainstream, Wash. Post, Jan. 1, 2006,
at A1. Divided opinions, reflecting as they do close questions of law, are generally assumed to
be more representative of the type of issues of interest to the Supreme Court.
Congressional Research Service ˜ The Library of Congress
Circuit,3 fully a dozen of these decisions involve liability for cleanup of contaminated
sites under federal or state “superfund” laws.
Judge Alito’s environmental decisions generally
Generally, Judge Alito’s environmental decisions are based on straightforward
readings of statutes and regulations, with little disposition to infer rights or duties not
clearly stated. They contain little in the way of broad philosophical statements. His
opinions reveal no obvious bias either for or against environmental causes per se. In the
20 opinions out of 34 in which it seemed there was a clear “environmental” side to the
arguments in the case, Judge Alito took the environmental side in ten, and took the4
contrary position in the other ten. This 50-50 split could be better interpreted, however,
if we possessed information on whether it is typical of appellate judges generally.5
Suggestive of Judge Alito’s lack of any agenda in the environmental area is that with
the exception of the insurance-coverage decisions, the cases reviewed showed no
environmental decisions in which he dissented. That is, he was never “out on a limb” by
himself. Similarly, of all the decisions reviewed, Judge Alito himself authored a majority
or dissenting opinion in 11, but four of these arose in the four insurance-coverage
decisions. Subtracting these out, Judge Alito wrote in only seven out of 30 environmental
rulings in which he participated.
Judge Alito’s environmental cases found him favoring the prosecution side in
criminal cases, as commentators have observed is typically his wont. For example, in two
Fourth Amendment cases, Judge Alito joined unanimous panels upholding warrantless6
Coast Guard searches of vessels seeking evidence of unlawful oil discharges.
3 The Third Circuit encompasses Pennsylvania, New Jersey, Delaware, and the U.S. Virgin
Islands. See 28 U.S.C. § 41.
4 Decisions in which Judge Alito sided with the “environmental” argument include Southwestern
Pennsylvania Growth Alliance v. Browner, 121 F.3d 106 (3d Cir. 1997) (joining unanimous
opinion upholding EPA denial of state’s request to redesignate area from nonattainment to
attainment for ozone under Clean Air Act) and ALM Corp. v. U.S. EPA, 974 F.2d 380 (3d Cir.
1992) (joining unanimous opinion upholding EPA’s interpretation of Toxic Substances Control
Act to authorize EPA to penalize failure to certify shipments).
Decisions in which Judge Alito sided with the “non-environmental” argument include Clean
Ocean Action v. York, 57 F.3d 328 (3d Cir. 1995) (joining unanimous opinion upholding district
court’s denial of preliminary injunction against ocean dumping, notwithstanding “serious error”
by district court), and W.R. Grace & Co. v. U.S. EPA, 261 F.3d 330 (3d Cir. 2001) (joining two-
judge majority opinion vacating as arbitrary and capricious an EPA emergency cleanup order
under the Safe Drinking Water Act).
5 The Washington Post study, which does report data on appellate judges generally (1990-1996),
aggregates environmental decisions with those on government regulation of land use, labor, and
securities, and thus is not useful here.
6 United States v. Varlack Ventures, Inc., 149 F.3d 212 (3d Cir. 1998); United States v. Boynes,
2000), in which Judge Alito joined a unanimous panel upholding misdemeanor convictions for
having held a 20,000-person gathering in a national forest without a permit.
Judge Alito’s decisions on larger jurisprudential issues likely to affect environmental
cases
While Judge Alito’s decisions (authored or joined) reveal no obvious sentiment as
to environmental suits per se, they arguably suggest his endorsement of larger
jurisprudential principles that may present hurdles to environmental suits, agency
enforcement, and congressional legislating.
1. Standing
Probably the most prominent of potential hurdles is Judge Alito’s view on standing,
to the extent it can be inferred from his joining the two-judge majority opinion in Public
Interest Research Group of New Jersey v. Magnesium Elektron, Inc.,7 a Clean Water Act
citizen suit. The majority opinion found that plaintiffs PIRG and Friends of the Earth
could not establish “organizational standing” to challenge a manufacturer’s multiple
violations of its NPDES permit8 through discharges into a creek that flowed into a canal
and river. To establish organizational standing, black-letter law has it that these groups
have to show that some of their members have standing to sue on their own — which, in
the majority’s view, they could not do. It was not enough, said the majority, that four of
the groups’ members fished and recreated less in the canal and river based on their
concerns about the multiple upstream permit violations. Those members had not
demonstrated actual injury to the waterways. (The court below had accepted the
testimony of Magnesium Elektron’s expert limnologists, who found that the company’s
discharges had not actually harmed the creek.) Recreating less without actual injury to the
affected waterways, the majority said, does not satisfy the “injury in fact” element of the
Supreme Court’s constitutional standing test.9
The view of “injury in fact” endorsed by the majority opinion joined by Judge Alito
was a stringent one. It required a considerable evidentiary showing by plaintiffs in the
threshold portion of their case — as to matters (harm to the environment) that were not
part of the case on the merits (discharge in exceedance of permit limits, regardless of
harm to the environment). Three years later, the Supreme Court came to the opposite
view, coincidentally also in a Clean Water Act citizen-suit case. In Friends of the Earth,
Inc. v. Laidlaw Environmental Services (TOC),10 Inc., the Court held 7-2 that the relevant
showing for Article III standing is not injury to the environment but injury to the plaintiff.
“To insist on the former rather than the latter ... is to raise the standing hurdle higher than
the necessary showing for success on the merits in an action alleging noncompliance with
7 123 F.3d 111 (3d Cir. 1997).
8 “NPDES” stands for National Pollutant Discharge Elimination System. The Clean Water Act
requires a NPDES permit for any point-source discharge into navigable waters. See Clean Water
Act § 402; 33 U.S.C. § 1342.
9 Along similar lines is the holding in Friends of the Earth, Inc. v. Gaston Copper Recycling
Corp., 179 F.3d 107 (4th Cir. 1999), reversed on rehearing en banc, 204 F.3d 149 (4th Cir. 2000).
The en banc reversal came one month after the Supreme Court’s decision in Laidlaw, discussed
in following text, and relies in part on that decision.
10 528 U.S. 167 (2000).
an NPDES permit.”11 The Court said that reasonable concern on the part of a plaintiff
diminishing his/her recreational or aesthetic enjoyment of a resource is sufficient in and
of itself to show injury in fact. Dissenting, Justice Scalia, joined by Justice Thomas,
articulated a general demand for environmental injury as part of standing similar to that
of the majority view joined by Judge Alito in Magnesium Elektron.
2. Agency evidentiary burden
As in Magnesium Elektron in connection with standing, Judge Alito appears to favor
high evidentiary hurdles for agencies defending Administrative Procedure Act challenges
— at least based on the key decision on point. In W.R. Grace & Co. v. U.S. EPA,12 Judge
Alito joined a two-judge majority opinion vacating as arbitrary and capricious an EPA
emergency order under the Safe Drinking Water Act. The EPA order had sought to
protect a city’s drinking water wells from an ammonia groundwater plume emanating
from the company’s nearby fertilizer plant. In support of its ruling, the majority opinion
contended that no technical study had been done to determine the appropriate ammonia
standard, hence EPA’s adoption in the order of a 1.2 mg/l standard was unjustified.
Moreover, the majority said, EPA provided no rational basis for selecting the remedy it
chose (cleanup of the aquifer to 1.2 mg/l) when a consultant had concluded that another
approach would also be effective. The dissenting judge argued that given the emergency
public health context, a high degree of deference to EPA’s decision was called for, and
given such deference the agency’s action was adequately justified.
In contrast with the foregoing evidence-intensive case, Judge Alito shows himself
as more deferential to EPA when it comes to the agency’s interpretation of its statutory
authority.13
3. Federalism: Commerce Clause
Many federal environmental statutes are based on Congress’ power under the
Commerce Clause.14 That being so, the Supreme Court’s renewed interest in the Clause,
as part of its renewed interest in the constitutional relationship between the federal
government and the states generally, has been of special interest in the environmental
area. Since the Court’s seminal Commerce Clause decisions in Lopez15 and Morrison,16
a flurry of litigation has challenged as beyond Congress’ power certain intrastate
applications of the Clean Water Act, Endangered Species Act, Superfund Act, and Safe
11 Id. at 181.
12 261 F.3d 330 (3d Cir. 2001).
13 See first two opinions, Southwestern Pennsylvania Growth Alliance and ALM Corp., cited in
footnote 5 supra. In the former case, the majority opinion stresses the importance of Chevron
deference to the agency several times.
14 U.S. Const. art. I, § 8, cl. 3.
15 United States v. Lopez, 514 U.S. 549 (1995).
16 United States v. Morrison, 529 U.S. 598 (2000).
Drinking Water Act.17 Indeed, two consolidated Clean Water Act cases explicitly raising
Commerce Clause issues are now before the Court18; with oral argument scheduled for
February 21, 2006, Judge Alito could conceivably be on the Court in time to participate
in deciding these cases.
The importance of the Court’s Commerce Clause jurisprudence has drawn much
attention to Judge Alito’s one judicial writing on the Clause. In United States v. Rybar,19
Judge Alito dissented from a two-judge majority opinion upholding as within Congress’
commerce power a general federal ban on the possession or transfer of machine guns. His
dissent concludes that the congressional ban fails each of the three established bases for
Congress’ invocation of its commerce power, and thus should be invalidated as currently
written. Previously, several federal circuits had determined, under various rationales, that
the ban was not a violation of the Commerce Clause. As noted in a separate CRS report,
Federalism: Selected Opinions of Judge Samuel Alito, Judge Alito’s dissent appears to
be “an argument for a more limited interpretation of the Commerce Clause than is
consistent with current case law.”20 The reader is referred to that report for extended
analysis.
4. Federalism: Eleventh Amendment and state sovereign immunity
A second federalism-type constraint on Congress’ power derives from the Eleventh
Amendment. The arcane terms of this amendment have been read expansively by the
Supreme Court to embody, but not to exhaust, broad principles of state sovereign
immunity. The Amendment bars Congress from authorizing private lawsuits against the
states, unless one of several exceptions applies.21 Of importance here is the exception
allowing Congress to abrogate state sovereign immunity through its authority under
section 5 of the Fourteenth Amendment to enforce the guarantees of that Amendment.
The Eleventh Amendment constraints on federal environmental statutes are limited
in scope, and arguably much less important than those under the Commerce Clause should
it be narrowed by the Supreme Court. The Amendment bars actions against only states,
not their political subdivisions or nongovernmental actors, and only by private entities,
not other states or the United States. Environmentally related private actions against
states — those not covered by the Amendment’s exceptions — arise principally in
connection with non-sovereign state activity (e.g., state ownership of solid waste
landfills). The Amendment has also insulated states from whistle blower actions brought
under federal environmental statutes by state employees alleging retaliatory treatment by
their state employers.
17 See generally CRS Report RL30670, Constitutional Bounds on Congress’ Ability to Protect
the Environment, by Robert Meltz, at 3-11.
18 United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004), cert. granted, 74 U.S.L.W. 3228 (Oct.
cert. granted, 74 U.S.L.W. 3228 (Oct. 11, 2005) (No. 04-1384).
19 103 F.3d 273 (3d Cir. 1996).
20 CRS Report RL33214, Federalism: Selected Opinions of Judge Samuel Alito, by Kenneth R.
Thomas and Todd B. Tatelman, at 15.
21 See generally Meltz report, supra note 17, at 28-38.
In Chittister v. Dep’t of Community and Economic Devpmt.,22 Judge Alito wrote for
a unanimous court holding that Congress, in enacting a provision of the Family and
Medical Leave Act, had not validly invoked section 5 of the Fourteenth Amendment to
abrogate state sovereign immunity. In contrast with his Rybar dissent on the reach of the
Commerce Clause, this holding appears to be “consistent with Supreme Court precedent
at the time.”23 The reader is referred to the aforementioned CRS federalism report for
extended analysis of the Chittister case.
22 226 F.3d 223 (3d Cir. 2000).
23 CRS Report RL33214, supra note 20, at 15.