In a potentially significant opinion last week, in Little Hocking Water Association v. DuPont, Judge Algenon Marbley gave hope to citizen plaintiffs everywhere, with a remarkably expansive reading of the imminent and substantial endangerment language in RCRA’s citizen suit provision. The decision covers a lot of ground, and is well worth reading (and, in fairness, Judge Marbley did reject some of plaintiffs’ claims).
The most significant holding was that DuPont’s emissions of perflourooctanoic acid, or C8, into the air could constitute “disposal” of a “solid waste” that would subject DuPont to liability under RCRA. Although Judge Marbley struggled mightily to distinguish it, his holding seems difficult to reconcile with the recent decision in Ctr. For Cmty. Action & Envtl. Justice v. BNSF R. Co., in which the 9th Circuit – that noted bastion of conservative environmental decisions – ruled that diesel emissions into the air did not constitute disposal of a solid waste. I think that the 9th Circuit got it right, but Judge Marbley’s interpretation is not crazy within the scheme of RCRA and its jurisprudence.
That being said, I have three takeaways from this case:
- Judge Marbley may not be crazy, but RCRA is. As I noted as recently as last December, it speaks volumes that, almost 50 years after its passage, we still don’t know what a solid waste is.
- How many different statutes and causes of action do we need to provide? Don’t like Superfund? Try RCRA. Doesn’t work? How about the Clean Air Act? Statutory remedies aren’t sufficient? Let’s resuscitate public and private nuisance doctrines. Of course, one can always – like Judge Marbley here – fall back on the canon that remedial statutes are to be construed broadly.
- And for a party in litigation, don’t ever forget rule number 1 – the Judge better like you. When the Judge starts citing statements by in-house counsel blasting their own client, you know you are in trouble, regardless of the technical merits:
Bernie and I have been unsuccessful in even engaging the clients in any meaningful discussion of the subject [of C8 emissions]. . . we continued to increase our emissions into the river in spite of internal commitments to reduce or eliminate the release of this chemical.
The business did not want to deal with this issue in the 1990s, and now it is in their face, and some are still clueless. Very poor leadership….
Talk about an uphill battle.