In Brief

Vol. 43 No. 6

Theodore L. Garrett is a partner at Covington & Burling in Washington, D.C. He is a former chair of the Section and is a contributing editor of Trends.

CERCLA

A court of appeals held that the United States may recover response costs from General Electric (GE) for the cleanup of a site operated by a paint manufacturer. United States v. General Electric Co., 670 F.3d 377 (1st Cir. 2012). The court rejected GE’s argument that it was not an arranger because it sold scrap polychlorinated biphenyl (PCB) materials to the paint manufacturer, concluding that Burlington Northern does not require a stated objective to dispose of hazardous materials. The court upheld the district court’s finding of intent, emphasizing that GE considered the scrap PCB materials to be a waste product, GE controlled the delivery of PCB materials to the site, the paint manufacturer had asked GE to retrieve drums of scrap PCB that were not needed, and GE continued shipments to the site even after the paint manufacturer stopped paying GE.

A party that incurred costs in complying with a federal consent decree may not pursue cost recovery claims under section 107(a) of Superfund against other potentially responsible parties, the 11th Circuit held. Solutia Inc. v. McWane, Inc., 672 F.3d 1230 (11th Cir. 2012). The decision clarifies a question left open in the Supreme Court’s decision in United States v. Atlantic Research Corp., 551 U.S. 128 (2007), namely whether section 107(a) cost recovery is available only to parties who volunteer to clean up a site. The court’s opinion agrees with decisions in three other circuits that denying a section 107(a) remedy under these circumstances is appropriate “in order ‘[t]o ensure the continued vitality of the precise and limited right to contribution.’”

Air quality

The Fifth Circuit vacated EPA’s disapproval of provisions of the Texas State Implementation Plan (SIP) for minor new source review (NSR) permits for pollution control projects. Luminant Generation Co. v. EPA, No. 10-60891, 2012 WL 999435 (5th Cir. Mar. 26, 2012). The court concluded that EPA’s disapproval was arbitrary and capricious because the Clean Air Act prescribes “only the barest of requirements” for minor NSR, and the agency based its decision on “three extra-statutory standards that the EPA created out of whole cloth.” The opinion found no support in the act for EPA’s objection that the SIP does not include “replicable” limits on how the state director is to exercise discretion. The decision emphasizes that the states have “sweeping discretion” in developing their SIP, whereas EPA has the “narrow task” of ensuring that a SIP “meets the minimal requirements of the Act.”

Hydraulic fracturing

A New York trial court upheld a county ordinance that banned exploration and production of natural gas or petroleum. Anschutz Exploration Corp. v. Town of Dryden, No. 2011-0902, 2012 NY Misc LEXIS 687 (N.Y. Sup. Ct. Feb. 21, 2012). The zoning amendment was enacted because of concerns that hydraulic fracturing may involve the risk of contaminating ground and surface water. The plaintiff spent $5 million in preparation to produce gas from the Marcellus shale in the area before enactment of the ordinance. The court rejected plaintiff’s argument that the ordinance is preempted by New York’s Oil, Gas and Solution Mining Law, stating that a court should avoid an interpretation of state law that would abridge a town’s power to regulate land use through zoning powers.

Water quality

In a unanimous decision, the Supreme Court held that affected persons may bring a civil action under the Administrative Procedure Act to challenge an EPA section 404 compliance order. Sackett v. EPA, 132 S. Ct. 1367 (2012). EPA issued a compliance order alleging that the Sacketts, in the course of building their home, had filled in a wetlands in violation of the Clean Water Act and requiring them to restore their property. The Sacketts unsuccessfully sought judicial review of EPA’s order, with the lower court agreeing with the government’s argument that the Sacketts could comply with the EPA order or submit an application for a wetlands permit or defend if EPA brings an enforcement action, but may not seek pre-enforcement review of EPA’s order. The Supreme Court rejected the government’s argument that EPA is less likely to use orders if they are subject to judicial review, saying that “[t]he APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.” It will be important to see how EPA responds and what, if any, changes are made to EPA’s practice and procedure for issuing administrative compliance orders in wetlands and perhaps other matters.

The Clean Water Act bar on citizen suits in cases where the alleged violation is being “diligently prosecuted” is not a threshold jurisdictional matter for purposes of a Rule 12(b)(6) motion to dismiss, a court of appeals held. Louisiana Envtl. Action Network (LEAN) v. City of Baton Rouge, 2012 WL 1301164 (5th Cir. Apr. 17, 2012). The court of appeals agreed that plaintiff was not barred as a jurisdictional matter from asserting its claims under the Clean Water Act. The court remanded the case to the district court for further proceedings, including review of the plaintiff’s allegation that there is no diligent prosecution, because a prior consent decree between the City of Baton Rouge and EPA was not in fact being enforced.

A U.S. district court invalidated EPA’s decision to veto a section 404 permit, issued by the U.S. Army Corps of Engineers (Corps) in 2007, allowing a company to discharge fill material from a coal mine to nearby streams. Mingo Logan Coal Co. v. EPA, 2012 WL 975880 (D.D.C. Mar. 23, 2012), appeal docketed, No. 12-5150. Noting that EPA vetoed the permit in 2011, years after it was issued by the Corps, the district court stated that “neither the statute nor the Memorandum of Agreement between EPA and the Corps makes any provision for a post-permit veto, and EPA had resorted to “magical thinking” to justify its action revoking the permit issued by a prior administration. EPA’s action leaves permit holders in the “untenable position of being unable to rely on the sole statutory touchstone for measuring their Clean Water Act compliance: the permit.”

NEPA

The Ninth Circuit upheld a U.S. Forest Service permit allowing an Arizona ski resort to produce artificial snow. Save the Peaks Coalition v. U.S. Forest Service, 2012 WL 400442 (9th Cir. Feb. 9, 2012). The court’s decision was critical of the plaintiff environmental groups, stating that the suit was brought “for no apparent reason other than to ensure further delay and forestall development” at the resort through litigation. The court found that the final environmental impact statement prepared by the government adequately considered the issue of human ingestion of snow made with reclaimed water.

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The Law of Adaptation to Climate Change: United States and International Aspects