Category Archives: Uncategorized

Should Watersheds Have Standing? Should Corporations?

In his seminal essay in 1972, Christopher Stone famously asked “Should Trees Have Standing?” trees 2Apart from Justice Douglas’s dissent in Sierra Club v. Morton, the idea has never gained much traction, at least in United States courts.  Now, due to the passage of a “Community Bill of Rights” ordinance by the Grant Township (Pennsylvania) Supervisors, the concept is about to get a legal test.

It appears that the ordinance was drafted by the Community Environmental Legal Defense Fund, and the Supervisors have retained CELDF to defend the… More

Is Obesity an Environmental Problem?

Like Canada, environmental contamination gets blamed for a lot of things wrong in America.  But a recent study in a respected NIH journal, Environmental Health Perspectives, offers a novel expansion of what in our lives  that is wrong that we can now blame on the environment.   In an article with the catchy title, “A Longitudinal Cohort Study of Body Mass Index and Childhood Exposure to Secondhand Tobacco Smoke and Air Pollution: The Southern California Children’s Health Study,” the authors report that it is not the calories that you eat that make you overweight; it’s the polluted air that you breathe.

According… More

Some PURPA Qualifying Facilities are More Qualified Than Others

In a fascinating decision last week, a divided panel of the 5th Circuit Court of Appeals held that the Texas Public Utilities Commission had authority to limit the universe of “Qualifying Facilities” under the Public Utilities Regulatory Policies Act which can choose to enter into a “legally enforceable obligation” requiring a utilities to purchase power from a renewable energy producer. The decision could be a big problem for wind power facilities in jurisdictions less than fully hospitable to renewable energy.

FERC’s rules implementing PURPA provide in part that:

Each qualifying facility shall have the option either:

(1)… More

Be Careful With Pollution Insurance Coverage Disclosures – How Conditions Actually Disclosed Were Deemed Not Disclosed

A Massachusetts company learned the hard way that you need to pay close attention to policy endorsements when you negotiate them. In Market Forge Industries, Inc. v. Indian Harbor Insurance Company, the Appeals Court of Massachusetts held, in an unpublished decision, that a Pollution and Remediation Legal Liability Policy did not cover the costs of cleaning up certain pollution because the “Pollution Conditions” were not specifically listed in the “Known Conditions” endorsement. This despite the fact that the policy was intended to cover known pollution conditions and the policyholder had… More

Importance of Judicial Approval of CERCLA Settlements

Before a Superfund settlement becomes enforceable, it must be reviewed by a federal court to confirm that it is fair, reasonable, and consistent with CERCLA’s objectives.  This judicial review is at the heart of CERCLA’s settlement process.  Since Superfund settlements provide broad protection to settling parties, judicial approval provides the necessary and exclusive procedural mechanism  to vouchsafe that a proposed settlement is in the interest of the public as well as all  other parties.

Two recent appellate decisions underscore the central role of judicial review in Superfund settlements.   In ASARCO, LLC v. Union Pacific Railroad Company, the Eighth Circuit ruled that the owner of a contaminated site which… More

How Much Deference Do States Get in Entering CERCLA Consent Decrees? Probably A Lot, But Perhaps Not As Much as You Thought

In Cannons Engineering, the First Circuit Court of Appeals famously stated that, when CERCLA consent decrees arrive at the courts of appeal for review, they do so “encased in a double layer of swaddling,” because both the EPA decision to enter into the decree and the district court review of the EPA decision are entitled to significant deference. Last week, in Arizona v. City of Tucson, the 9th Circuit Court of Appeals concluded that, where a state consent decree is concerned, the first layer of swaddling is somewhat thinner than where EPA is concerned. The Court also made… More

Absolute Pollution Exclusions Are Absolute When There Has Been Pollution

Pollution exclusions first became routine in liability policies in the early 1970s.  After a decade of often unsuccessful litigation trying to enforce those exclusions, insurers introduced a so called “absolute” pollution exclusion into their commerical liability policies. Given that the language of absolute pollution exclusions has almost universally been found to be unambiguous, there has been a surprising amount of litigation on the subject.   What emerges from that litigation  is a general rule:  the exclusion will virtually always be enforced where the claim involves contamination of the environment, but enforcement is far less certain where the claim involves damage to a product, such as defective wallboard, or bodily injury from a defective product, such as harm to… More

EPA May Be Regulating GHGs, But Private Litigation Still Looks to be On Shaky Ground

In a case of interesting timing, three days after EPA announced its proposed GHG rules for existing facilities, the D.C. Circuit affirmed dismissal of a case seeking an injunction against EPA and other federal defendants requiring them to reduce global CO2 levels to 350 ppm during this century (and take actions to ensure that result by imposing regulations resulting in at least a 6% annual decline in emissions). The basis for the law suit was the public trust doctrine.

As we previously discussed, the District Court dismissed the case on the grounds that: (1) there is no… More

EPA On Track to Regulate Fine Particulates More Stringently: D.C. Circuit Affirms Revised PM 2.5 NAAQS

EPA’s judicial winning streak continues. Today, the D.C. Circuit Court of Appeals affirmed EPA’s regulations lowering the PM 2.5 National Ambient Air Quality Standard from 15.0 ug/m3 to 12.0 ug/m3. This was not a close case or a difficult decision. Indeed, as we had previously pointed out, the D.C. Circuit had previously rejected EPA’s decision to keep the NAAQS at 15 ug/m3 and EPA’s Clean Air Science Advisory Committee had supported lowering the NAAQS to 12 ug/m3 or 13ug/m3. Given the courts’ deference in recent years to EPA technical decisions supported by CASAC, this outcome… More

CERCLA Principles in Child Pornography Cases

Although one might not ordinarily think to associate child pornography and pollution, the two were linked at an oral argument yesterday before the United States Supreme Court. Specifically, in a child pornography case, the defendant was found guilty of viewing a child pornography video obtained from the Internet. Pursuant to federal statute, the defendant was ordered to make “restitution” in the amount of $3.4 million to the juvenile depicted in the video.

In arguments that will sound familiar to any environmental lawyer, the defendant’s counsel insisted that there had been thousands of views of the video so it would… More

Sale of a Usable Waste Defense — Another Instance of the Unstated Rule of CERCLA Liability

Extending its string of CERCLA PCB losses in the Midwest, NCR Corporation was recently found liable for contribution based on its sale of waste scrap from its manufacture of carbonless copy paper in Michigan.  In Georgia-Pacific v. NCR Corporation, the federal court rejected NCR’s claim that it had merely had sold a useful product when it sold waste resulting from its carbonless copy paper.  Instead, the court found that NCR had arranged for the disposal of a hazardous substance when it continued to sell waste scrap to mills after it learned that the scrap contained PCBs which the mills would discharge to surrounding waters in… More

More on Old NSR Claims: Injunctive Relief Remains Available Against Original Owners Foolish Enough Not to Have Sold

As we noted last week and last month, the 3rd and 7th Circuits have ruled that violations of the obligation to undertake NSR review prior to implementing major modifications are not continuing, but are instead one-time violations occurring at the time the facilities undertake the modification.  These holdings meant that EPA could not pursue either former owners – because they no longer control the facilities – or current owners – because they never violated the statute and have no ongoing obligation to correct the former owner’s violation.

However, what happens if the property has not been… More

The Third Circuit Reinstates Nuisance Claims Against Cheswick Generating: Bad Idea

On Wednesday, in Bell v. Cheswick Generating Station, the 3rd Circuit Court of Appeals revived class action nuisance claims brought by residential property owners living within one mile of GenOn’s Cheswick Generating Station.  (Full disclosure – this firm represents GenOn, now NRG, in various matters, though not this litigation.)  The District court had ruled that the claims were preempted by the Clean Air Act’s comprehensive regulatory scheme.  The 3rd Circuit disagreed, holding that the CAA’s savings clause preserved such nuisance claims.

While I understand the logic of the Court’s decision, it nonetheless seems not just wrong, but willfully wrong. … More

Environmental Nuisance Claims — It Helps To Have Experts

The old warning that “past performance is no guarantee of future results” apparently applies not only to investments but also to environmental nuisance suits in Tennessee.  In Freeman v. Blue Ridge Paper Products, a class of 300 residents living 26 miles downriver from a paper mill plant had obtained a $2 million jury verdict in state court on the ground that the paper mill had interfered with the use and enjoyment of their property from 1999 to 2005 by putting chemicals into the river that caused odors, foam, and discoloration of the water leading plaintiffs to suffer anxiety, stress, and fear.   Emboldened by… More

The Real Risk of Unregulated Air Pollution

Sometimes the most valuable research turns out to be a confirmation of the obvious.   Fitting that bill is the study released yesterday in the Proceedings of the National Academy of Science documenting the substantially decreased life expectancy among people in China living in areas where coal has for many decades been used to heat homes.   The study is based on a long-standing policy in China of distributing coal free to residents who live north of the Huai River but not to people living south of the river.  In comparing life expectancies, the study found that people living north of the river were exposed to significantly higher… More

CERCLA Is Still Constitutional

To paraphrase Shakespeare, United States v. Sterling Centrecorp, Inc., is a great feast of legal argument.  The PRP in that case purchased the assets of a mining company whose operations in California had caused releases of arsenic.  That PRP was found to be liable for CERCLA response costs under no fewer than four discrete legal theories –(1) explicit assumption of  liabilities, (2) implicit assumption of liabilities, (3) de facto merger, and (4) operator liability — suggesting there are many ways a party can lose the same case.

In reaching its conclusions, the court had to navigate through a veritable obstacle course of arguments, including assertions that the court lacked jurisdiction, that it was not possible for a company to… More

What Response Costs Are Necessary Under CERCLA

In a post last year, I discussed what I I thought was the dubious dismissal of  a CERCLA cost recovery action in Stratford Holding, LLC v. Fog Cap Retail Investors LLC.   That case involved a holding that the costs of  investigating the presence of solvents in the groundwater above regulatory standards were not   “necessary” response costs because the the state had declined to list the site on its Hazardous Sites Inventory.  In a short, unpublished opinion, the Eleventh Circuit Court of Appeals recently overturned the district court decision and correctly ruled that the failure of a state to list a site on its Hazardous Sites… More

Weighing the Costs and Benefits of Cost-Benefit Analysis

I have previously posted about Cass Sunstein’s efforts to bring cost-benefit analysis to government regulation.  On Friday, E&E News reported on Sunstein’s new book, Simpler:  The Future of Government, noting that Sunstein has been subject to “scathing” criticism from Lisa Heinzerling.  It will probably not surprise you to learn that I’m with Sunstein on this one.

Heinzerling has three principal criticisms.

Organic statues give agencies – not the White House – the authority to make rules.  This argument raises form over substance.  The Constitution gives the Executive Branch the authority to implement laws passed by Congress… More

The Fifth Circuit Rejects EPA’s Disapproval of Alabama’s Opacity Regulation: Do We Blame EPA, DOJ, or Two Judges?

On Wednesday, in Alabama Environmental Council v. EPA, the Fifth Circuit Court of Appeals rejected EPA’s 2011 disapproval of Alabama’s opacity regulation.  The case involves relatively obscure provisions of the Clean Air Act, but the decision nonetheless provides a number of – abject – lessons.

First, a short history.  In 2003, Alabama adopted a revision to its opacity regulations.  The revision allowed exceedances of the opacity standard, so long as those exceedances did not extend to more than 2% of a facility’s operating time during any calendar quarter.  With some interim history and details not worth summarizing here, EPA… More

Unstated Rule on Superfund Liability for Sale of a Usable Product — One Year Later

Exactly a year ago, I posted a blog that argued that the decisions on Superfund liability for the sale of usable product could be distilled down to an “unstated rule” — a party will be held liable as having intended to arrange for the disposal of a hazardous substance if it sells a waste that cannot be used or won’t be used as delivered without first causing the release of a hazardous substance.  One year later, that rule still seems to be correct and still is unstated (except here).

The most recent court to wrestle with this issue was Carolina… More

It Is a Unitary Government Afterall: Privilege For Intra-Governmental Communications

About a year ago, I blogged about a decision by the federal district court in the Lower Fox River case ruling that there was no attorney-client privilege protecting communications between government lawyers representing the EPA and those representing federal PRPs.  At the heart of that decision was the finding that the two sets of government lawyers were actually representing different and adversarial parties.  The Seventh Ciruict in Menasha Corporation v. US Dept of Justice has just reversed.  According to Judge Posner, the United States is analogous to a large corporation facing a products liability case (involving cosmetic surgery gone wrong);… More

MassDOT Issues Its 21st-Century Transportation Plan: Brother, Can You Spare $13 Billion?

The Massachusetts Department of Transportation today released The Way Forward:  A 21st-Century Transportation Plan.  The Plan summarizes steps that MassDOT has already taken to implement reforms, describes transportation needs over the next ten years, and discusses options for attaining the funding necessary to address the identified needs.

The needs include a number of proposals that have been mentioned previously, including South Coast Rail, train connection from Boston to Springfield, and rail service from Pittsfield to New York City.

The funding shortfall?  Only $13 billion.  The plan – presumably recognizing that Governor Patrick might have his own views – does… More

EPA’s Authority to Set TMDLs Is Limited: Be Careful What You Wish For

Last week, in Virginia Department of Transportation v. EPA, Judge Liam O’Grady struck down EPA’s attempt to set a TMDL for the Accotink Creek in Virginia based on the rate of total stormwater discharge to the Creek, rather than on the amount of sediment in the stormwater discharge.  To Judge O’Grady, the case was a fairly simple exercise in step 1 analysis under Chevron (busy week for Chevron analyses).  EPA is supposed to impose TMDLs – the total maximum daily load – of “pollutants.”  Since stormwater itself is not a pollutant, EPA may not regulate it.

The… More

CERCLA Cost Recovery or Contribution Claim: Another Judicial Misstep

The chaos unleashed by Aviall continues in a recent decision by the Seventh Circuit.  In Bernstein v. Blankert, the Seventh Circuit revisited the issue whether a party having entered into an Administrative Order by Consent had a claim against other PRPs for cost recovery under Section 107(a) or for contribution under Section 113(f)(1).   Offering a novel and entirely misguided conclusion, the court found that whether a party has a claim for cost recovery or for contribution hinges on whether that party had completed all of its obligations under the AOC.  

According to the Seventh Circuit, CERCLA provides that a party has a contribution action when it (1) is… More