On July 26, 2019, the U.S. Supreme Court ruled that the Trump administration can access $2.5 billion in Defense Department funds to replace and enhance sections of barrier along the southern border in Arizona, California and New Mexico. The Court’s 5-4 decision in Trump v. Sierra Club stayed an injunction and let the administration access funds that were frozen by decisions of a federal district court in California in May and the Ninth Circuit Court of Appeals (agreeing with the district court) on July 3. The significance of the decision is that the administration can now move forward with the work—for which contracts have already been awarded, but not finalized—while litigation brought by environmental groups proceeds in lower courts, a process that will take several months.
As usual, the last month of the Supreme Court’s term generated significant rulings on all manner of cases, possibly presaging the new directions the Court will be taking in administrative and regulatory law. Here’s a brief roundup:
Last week, the Court granted a petition to review a significant CERCLA case, Atlantic Richfield Company v. Christian, et al., decided by the Supreme Court of Montana on state law grounds. This case involves state litigation which could result in a cleanup whose scope is allegedly inconsistent with an ongoing and expensive federal CERCLA cleanup at the Anaconda Smelter site. CERCLA basically provides that no one may challenge an ongoing Superfund cleanup, yet this state common law proceeding seeking a cleanup of the plaintiff’s homes and properties arguably threatens the EPA-approved cleanup remedy. ARCO filed a petition for certiorari with the Supreme Court, which the Court has now granted despite the Solicitor General’s brief which argued that the Court should wait to see the results of the Montana trial. (It is unusual for the Court to reject the advice of the Solicitor General.)