I’m skeptical.  The decision seems plainly right to me.  As both Justice Scalia’s majority opinion and Justice Breyer’s concurring opinion make clear, this is not a pathbreaking decision and the Court, without explicitly recognizing the issue previously, has issued numerous Chevron opinions in which the statutory provision at issue went to the scope of the agency’s authority.

The bottom line is that where an agency interprets a provision of a statute it has authority to implement, Chevron requires courts to first interpret the plain language of the statute and second to defer to a reasonable agency interpretation if the statute is ambiguous.  This is not new.  It is not shocking.  And it is not rocket science.

Monday’s Greenwire story quotes Patrick Parenteau of Vermont Law School as expressing concern about the decision.  He notes, correctly, but obviously, that whether we like deference to agencies depends on whether we like what agencies do.  Yup.  He then suggests that, had this case been decided before Massachusetts v. EPA, the Supreme Court might have deferred to EPA’s interpretation of the Clean Air Act.  I don’t think so.  The majority decision  in Massachusetts v. EPA makes clear that the Clean Air Act was unambiguous.  Thus, EPA got no Chevron deference and would have gotten no deference under City of Arlington.

Finally, I note that Justice Roberts’s concern, as expressed in his dissent, is not really about Chevron and agency deference.  He simply does not like the modern administrative state.  I think he’s got the wrong argument here.  What he wants really to do is to revive the non-delegation doctrine, a view pretty much foreclosed by American Trucking Association v. Whitman.

Given the increasing number of expensive disasters, as well as the costs imposed by long-term sea level rise, I actually expect more and more private claims to be filed, in any jurisdiction or under any set of facts where the claims are not clearly precluded by a prior case.  Nonetheless, the near-term outlook for these cases is not bright.

It’s going to take a sea change – as it were – before plaintiffs win one of these cases.

Applying New York law, consistent with the insurance policy’s choice of law provision, the Fifth Circuit affirmed the District Court’s summary judgment decision requiring the insurer to provide a duty to defend.  The Fifth Circuit noted that the complaint by the United States was not limited to an injunction requiring repairs to the emissions control equipment but also sought remedial costs to address the release into the atmosphere of unpermitted levels of certain pollutants.

While the possibility of remediation costs was sufficient to trigger the insurer’s duty to defend, the Fifth Circuit went on in perhaps its most significant holding to reject the insurer’s argument (which had been adopted by the lower court) that the policy excluded all injunctive relief  in its Fines and Penalties exclusion which precluded coverage for ”Payment of criminal fines, criminal penalties, punitive, exemplary or injunctive relief.”   The Fifth Circuit construed that exclusion narrowly limiting it only to injunctions that were part of a criminal or punitive fine or penalty.  As the Fifth Circuit explained, many environmental laws, like the Clean Air Act, are structured to obtain compliance through  either voluntary remediation work or court ordered injunctions, and it would make little sense if a Premises Pollution Liability Insurance Policy provided coverage for voluntary remediation work but did not cover the same work when done under a court order:

If the Fines and Penalties exclusion is a complete bar for coverage of costs associated with injunctive relief, the exception would potentially swallow the coverage afforded by the policy.  The policy would not cover claims under major federal environmental statues, such as the CAA and the Clean Water Act, when they are enforced by the EPA or state agencies seeking injunctive relief to mitigate and remediate past pollution.

Although no one would disagree that one key responsibility of any judge is to protect against the admission of unreliable evidence,  a recent unpublished decision by the Ninth Circuit in Whitlock v. Pepsi Americas suggests the dilemma of trial courts in attempting to execute that responsibility in environmental cases.  There, the trial judge had granted summary judgment dismissing a toxic tort action which was based on what the judge found to be unreliable scientific evidence of causation.  For example, one of the plaintiffs’ experts relied upon occupational studies to buttress his causation opinion even though the exposure levels examined in the studies were considerably higher  than the ones to which plaintiffs had been exposed.  The Ninth Circuit, however, reversed, quoting an earlier 2010 decision by that court that held that “Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”

The difference between “shaky but admissible” and unreliable and inadmissible evidence would seem to be entirely in the eye of the beholder.   As long as appellate courts, like the Ninth Circuit in Whitlock, are willing to second-guess Daubert decisions in close cases, we should not be surprised if trial courts do not want to take the risk that they will be reversed if they exclude scientific evidence.

One important issue addressed by Judge Walton was how focused a comment on an agency decision must be to avoid arguments by the agency that the comment was waived by not being presented with sufficient particularity.  Here, the plaintiffs challenged in court the so-called “Listing Criteria” used to determine whether substances are known or reasonably anticipated to cause cancer.  However, while plaintiffs had commented on HHS’s application of the Listing Criteria, the Court concluded that they had not clearly commented on the Listing Criteria themselves.  Thus, the argument was waived.

The Court also reviewed the basic rules for determining whether agency action is arbitrary and capricious.  In this context, it’s worth noting that Judge Walton is not one to kow-tow to agency decision-making.  This makes him somewhat unusual in today’s polarized judiciary, in which all too often it seems that liberal judges interpret deference as abdication, while conservative judges simply honor the notion of deference in the breach, overturning agency actions which due deference would cause to be affirmed.

Judge Walton first noted that the standard is “highly deferential” and that the Court “must presume the validity of agency action.”  He then stated that

where, as here, a court is reviewing an agency’s evaluation of “‘scientific data within its technical expertise,’” the arbitrary and capricious standard of review is “‘extreme[ly] deferential.’” This is because courts “review scientific judgments of the agency ‘not as the chemist, biologist, or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality.’”

Reviewing HHS’s stated reasons for listing styrene, Judge Walton concluded that the evidence relied upon by HHS justified the listing on two, independent grounds: “’limited evidence’ of carcinogenicity in humans, and ‘sufficient evidence’ of carcinogenicity in animals.”  Case dismissed.

This is when Comer took a left turn.  Before the en banc panel could hear the case, an additional judge was recused, leaving the court without a quorum to hear the case.  In a truly Dickensian move, the court concluded that, while it had no quorum to hear the case, it did not need a quorum to dismiss the appeal, leaving the plaintiffs with only a right to petition the Supreme Court to issue a writ of mandamus, an uphill battle if ever there were one.  The Supreme Court denied the writ in 2011, thus leaving the plaintiffs with no opportunity to have their appeal heard.  Sounds like a due process issue to me.  I do believe that most lawyers – and most non-lawyers – would have said that there is an automatic right to an appeal from the district courts of the United States.  Silly us.

Plaintiffs weren’t quite done, however.  They basically just refiled the same case, in 2011.  The District Court again dismissed, this time on res judicata grounds.  After all, as a result of the odd happenings before the 5^th Circuit Court of Appeals, the original final judgment from the District Court was never disturbed.

On Tuesday, the 5^th Circuit affirmed.  The critical issue was the third element of the res judicata demonstration:  that “the prior action was concluded by a final judgment on the merits.”  The Court concluded that it had been.  As a purely legal matter, the Court was probably correct, as the Supreme Court, in United States v. Munsingwear, Inc., had previously declined “to create an exception to res judicata for ‘those who have been prevented from obtaining the review to which they are entitled.’”

The bottom line, though, is that the Comer plaintiffs’ claims now have a second stake through their heart.  The claims are gone, with no opportunity for appellate review (notwithstanding that they actually had appellate review for a brief shining moment, and had prevailed).  If that’s what the law says, then, to borrow from a different Dickens work, the law is an ass.

As a footnote, literally, to this case, the Court noted that its local rule has been changed to provide that, in the future, if the full court loses its quorum after taking a case en banc, the panel decision will be reinstated.  Cold comfort to the plaintiffs here.

The court recently issued a follow up decision in which it declined to apply its ruling to a company which had sent its transformers for repair by the same recycling facility.  The company argued that its situation was no different form the company selling its used transformers — in both instances the recycling facility in the course of refurbishing  transformers — whether for resale or repair — had potentially spilled PCBs.  The court, however, did not agree, pointing out that the company sending its transformers for repair continued to own its transformers and directed the specific manner in which those transformers were to be fixed.   As the court explained, a company which sent its transformer for repair and retained control over the manner of the repair was not analogous to a party selling a used product; depending on the specific facts, it was potentially comparable  to the defendant in Aceto which directed the manufacture of a product with its own ingredients knowing that there would be hazardous wastes generated in that process.  Although unspoken, the court seemed to leave open the question whether a company which sends a product for repair would have Superfund liability if it did not specify and control  the manner in which its product was to be repaired.

• Building owners subject to the ordinance will have to report on May 15 of each year:

The previous calendar year’s energy and water use of each building and other building characteristics necessary to evaluate absolute and relative energy use intensity.

• Non-residential buildings of at least 50,000 square feet would be required to report beginning in 2014.  Non-residential buildings of at least 35,000 square feet would be required to report beginning in 2016.  (The threshold was increased from 25,000 square feet in the draft.)

• Residential buildings of at least 50 units or 50,000 square feet would be required to report beginning in 2015.  Residential buildings of at least 35 units or 35,000 square feet would be required to report beginning in 2017.  (The threshold was increased from 25 units or 25,000 square feet in the draft.)

• Subject to exemptions which largely reflect whether a building is already high-performing, building owners subject to the ordinance will have to perform energy audits, beginning five years after the first applicable reporting deadline.

• Residential tenants have no obligation to report data to owners; owners will be given default assumptions to use regarding residential tenant energy and water use.  Non-residential tenants are subject to the ordinance.

• Energy and water use will be made publicly available by no later than October 1 of each year.  Owners will have an opportunity to review the accuracy of the information to be reported.

• Enforcement provisions, including relatively modest fines, are included, though fines can only be imposed if an owner does not comply with the terms of a Notice of Violation.

As we noted in February, this type of ordinance is likely coming to a city near you in the relatively near future.  Building owners may be able to shape the ordinance, but, at least in many cities, they will not be able to prevent it from being enacted.  Proactive engagement rather than fierce opposition seems to be the appropriate course here.

This is where the Plan’s controversial modification of the existing ban on new or expanded MSW combustion capacity enters the picture.  MassDEP proposes to allow up to 350,000 tons of new capacity for “innovative and alternative technologies (e.g. gasification or pyrolysis).”  The Plan does not define either “innovative” or “alternative” (or “gasification” or “pyrolysis”), but it is clear that MassDEP does not intend to allow expansions in traditional MSW combustion facilities.

Not surprisingly, MassDEP got a lot of comments suggesting that there was no basis for the 350,000 ton limit and no reason to preclude expansions at facilities utilizing existing combustion technologies.  At the same time, it also got criticized for allowing any expansion at all.  MassDEP issued a Response to Comments Document, which I found less than satisfying.

Most notably, those opposed to any modification argued that allowing such new capacity would undermine recycling and reuse efforts.  MassDEP effectively rebutted that argument, I thought, pointing out that the availability of MSW combustion facilities does not appear to have any significant impact on reuse/recycling programs.  However, if that is the case, why limit the modification to 350,000 tons and why preclude expansions in traditional facilities, which are already subject to extremely stringent air emissions limits?

MassDEP says that it wants to avoid development of large facilities involving significant capital expenditure that will have a long operating life.  What I don’t understand is why this is a concern.  If MassDEP does not believe that these facilities negatively affect reuse/recycling programs, than why do we care how many of these facilities the market is willing to supply?

After all, MassDEP concedes that, without these facilities, and even if its extremely aggressive disposal reduction targets are met, Massachusetts will be exporting 700,000 tons of solid waste per year to other states.  Such out of state disposal has both economic and environmental costs.

If I were a betting man, I’d be betting that we’re going to be seeing solid waste generated in Massachusetts shipped out of state for disposal for a long time to come.

The history of the case itself it tortuous and not really relevant here.  The short version is that the agency defendants sought to resolve citizen litigation regarding the “Survey and Manage” provisions of the NFP by entering into a consent decree that would amend certain elements of Survey and Manage.  It was uncontested that, if the agencies had sought to do so outside the context of litigation, they would have had to follow FLPMA requirements.  The agencies – and the District Court which upheld entry of the consent decree – argued that, because approval of a consent decree is a “judicial act”, it is not subject to the FLPMA procedures.

I’ve got to say, that argument just seems like a non sequitur to me.  In any case, the 9^th Circuit rejected it, concluding that:

a district court abuses its discretion when it enters a consent decree that permanently and substantially amends an agency rule that would have otherwise been subject to statutory rulemaking procedures.

Well, yeah.