In Brief

Vol. 43 No. 2

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

The Ninth Circuit upheld the dismissal of a dry cleaning store operator’s Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) suit against the manufacturer of a machine for filtering and recycling water contaminated with perchloroethylene used in dry cleaning. Team Enterprises, LLC v. Western Investment Real Estate Trust, 2011 WL 3075759 (9th Cir. July 26, 2011). The court held that the manufacturer lacked requisite intent to qualify as “arranger” and did not exercise control over operator’s disposal process for purposes of arranger liability. The court rejected plaintiff’s argument that intent could be inferred from its failure to warn of the risks of disposal, stating: “we are not convinced that sellers of useful products must instruct buyers on proper disposal techniques in order to avoid CERCLA liability.”

Air quality

The D.C. Circuit vacated an EPA guidance document that allowed states in compliance with the 8-hour ozone standard to avoid Clean Air Act section 185 fees on sources that miss deadlines, even if the region was not in compliance with the 1-hour standard. Natural Resources Defense Council v. Environmental Protection Agency, 643 F.3d 311 (D.C. Cir. 2011). The court held that the guidance was improperly issued without providing for public notice and comment. The court also agreed with NRDC that the guidance allowed violations of the 1-hour standard to continue and was contrary to the anti-backsliding provisions in section 172(e) of the statute.

The dismissal of a lawsuit challenging the adequacy of a Prevention of Significant Deterioration permit for a Wyoming coal-fired power plant was upheld on appeal. Sierra Club v. Two Elk Generation Partners Ltd. Partnership, 2011 WL 2120048 (10th Cir. May 31, 2011). The state issued an order resolving the permit issues that was upheld on appeal in state court. Relying on the full faith and credit statute, 28 U.S.C. § 1738, the majority 10th Circuit opinion concluded that “Wyoming’s policy of finality of judgments favors against allowing the Sierra Club to relitigate issues that have already been decided.”

A district court held that section 231 of the Clean Air Act requires EPA to evaluate whether aircraft greenhouse gas (GHG) emissions endanger human welfare. Center for Biological Diversity v. EPA, 2011 WL 2620995 (D.D.C. July 5, 2011). However, the court was not persuaded that EPA must conduct endangerment determinations for non-road engines and vehicles, which are regulated under section 213 of the act and provide EPA with discretionary authority.

 

Water quality

EPA’s approval of a total daily maximum load (TMDL) for total suspended solids (TSS) and sediment for the Anacostia River was held arbitrary and capricious. Anacostia Riverkeeper v. Jackson, 2011 WL 3019922 (D.D.C. July 25, 2011). EPA ignored the effects of sediment and TSS on recreational and aesthetic uses of the Anacostia River, the court held, and thus the record was insufficient to support the conclusion that the TMDL protects all designated uses.

Environmental groups’ lawsuits challenging three Corps of Engineers’ nationwide permits for mining activities were dismissed. Kentucky Riverkeeper, Inc. v. Midkiff, 2011 WL 2789086 (E.D. Ky. July 14, 2011). The court rejected plaintiffs’ challenge to the Corps’s cumulative impact analysis and its reliance on compensatory mitigation measures.

 

RCRA

The Ninth Circuit upheld the dismissal of a shopping center owner’s Resource Conservation and Recovery Act (RCRA) citizen suit against manufacturers of dry cleaning equipment. Hinds Investments, LP v. Angioloi, 2011 WL 3250461, 3268027, 3268096 (9th Cir. Aug. 1, 2011). The court rejected plaintiff’s argument that the manufacturers contributed to the release because the equipment was designed to allow the discharge of contaminated wastewater to the sewer system. The opinion states that defendant must have a measure of control over the waste at the time of disposal or otherwise be actively involved in the disposal process in order to be liable.

The dismissal of RCRA claims against a mineral processing plant alleged to have contaminated streams and groundwater with aminoethylethanolamine (AEEA) and arsenic was upheld on appeal. Brod v. Amya, 2001 WL 2750916 (2d Cir. July 18, 2011). The court held that plaintiffs’ notice of intent did not include sufficient information to permit defendant to identify the alleged violation because the notice did not identify AEEA and arsenic as contaminants in the plant’s waste.

 

NEPA

A lawsuit by environmental groups challenging the Bureau of Land Management’s (BLM’s) approval of two oil and gas lease sales in New Mexico, for alleged failure to adequately address climate change, was dismissed for lack of standing. Amigos Bravos v. United States Bureau of Land Management, 2011 U.S. Dist. LEXIS 95710 (D.N.M. Aug. 3, 2011). The court found that plaintiffs presented only bare assertions, but no scientific evidence or recorded data, that climate change caused injury to their use and enjoyment of specific lands. Moreover, plaintiffs did not show that their alleged injuries are fairly traceable to the BLM’s alleged failure to comply with the National Environmental Policy Act.

 

Energy

The D.C. Circuit dismissed, on ripeness grounds, petitions challenging the attempt by the Department of Energy (DOE) to withdraw its application to the Nuclear Regulatory Commission (NRC) for a license to construct a permanent nuclear waste repository at Yucca Mountain, Nevada. In re Aiken County, 645 F.3d 428 (D.C. Cir. July 1, 2011). The court held that there is a lack of finality until the NRC either acts on DOE’s request to withdraw or acts on the license application.

 

ESA/Resources

A court remanded the Fish and Wildlife Service’s (FWS’s) designation of 143 acres of property as critical habitat under the Endangered Species Act (ESA). Otay Mesa Property, L.P. v. United States Department of the Interior, 2011 WL 2937177 (D.C. Cir. July 22, 2011). The court found that one isolated sighting, in a tire rut, of four fairy shrimp, each the size of an ant, was insufficient to render a property “occupied” by the shrimp for purposes of critical habitat designation.

A district court upheld the FWS’s listing of the polar bear as a threatened species under the ESA. In re Polar Bear Endangered Species Act Listing, 2011 WL 2601604 (D.D.C. June 30, 2011). The court ruled that a timeframe of forty-five years over which the polar bear was likely to become endangered was not arbitrary and capricious and the FWS reasonably declined to designate any polar bear population or ecoregion as a distinct population segment.

Trends, Vol. 43, No. 2, November/December 2011, Section of Environment, Energy, and Resources, American Bar Association.

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