IN BRIEF

Vol. 44 No. 2

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

Keystone XL

A federal court denied the Sierra Club’s motion for a preliminary injunction to block the construction of segments of the Keystone XL pipeline. Sierra Club, Inc. v. Bostick, 2012 WL 3230552 (W.D. Okla. Aug. 5, 2012). Plaintiffs argued that the U.S. Army Corps of Engineers unlawfully concluded that the pipeline segments were covered by Nationwide Permit (NWP) 12. The court found that the Corps made the required minimal-impact determinations before reissuing NWP 12 and was not required to prepare a full environmental impact statement under National Environmental Policy Act. The court also rejected a challenge to NWP 12 as applied, concluding that the Corps offices consulted with one another to assess the cumulative impact of the entire project.

CERCLA

The Seventh Circuit affirmed a preliminary injunction requiring NCR to complete remediation work on the Fox River in Wisconsin, rejecting NCR’s claim that NCR had already performed more than its share of the work. United States v. NCR Corp., 688 F.3d 833 (7th Cir. 2012). NCR argued for apportionment and presented testimony that it contributed only 9 percent and 6 percent of the polychlorinated biphenyls (PCBs) in two operable units. However NCR did not refute the government’s evidence that NCR’s contribution of PCBs would alone require approximately the same remedial measures. The Seventh Circuit’s opinion distinguishes the U.S. Supreme Court’s Burlington Northern decision from the present case where “multiple entities independently contribute amounts of pollutants sufficient to require remediation.” The court noted, however, that NCR will be free to pursue whatever remedies are available to NCR for contribution or cost recovery.

Air quality

The D.C. Circuit vacated and remanded EPA’s 2011 Cross-State Air Pollution Rule (Transport Rule), which required reductions in sulfur dioxide and nitrogen oxides from power plants and other sources in twenty-eight upwind states because of their contribution to downwind air pollution. EME Homer City Generation, L.P. v. EPA, 2012 WL 3570721 (D.C. Cir. Aug. 21, 2012) (petition for rehearing en banc pending). Because EPA based the rule upon the amount of pollution that each state could eliminate if plants in the state installed cost-effective controls, the majority found that the Transport Rule is invalid because it was not based on the amounts from upwind states that contribute significantly to nonattainment as required by statute. The majority also held that EPA unlawfully promulgated federal implementation plans without first giving affected states an opportunity to implement the required reductions to sources within their borders, contrary to the statutory scheme that the states, not EPA, “are the primary implementers” after EPA establishes the upwind state’s obligations. The decision creates uncertainty concerning the status of related EPA rules and state implementation plans based on the Transport Rule.

The Sixth Circuit vacated EPA’s determination that natural gas sweetening plant and gas production wells located in a 43-square mile area near the plant were “adjacent” and thus could be aggregated to determine whether they are a single major stationary source for Title V permit purposes. Summit Petroleum Corp. v. EPA, 2012 WL 3181429 (6th Cir. Aug. 7, 2012). The majority held that the EPA’s position that “functionally related” facilities can be considered adjacent is contrary to the plain meaning of the term “adjacent,” which implies a physical and geographical rather than functional relationship. The court also found EPA’s interpretation to be inconsistent with the regulatory history of Title V and prior EPA guidance. The case was remanded to EPA for a reassessment with the instruction that Summit’s activities can be aggregated “only if they are located on physically contiguous or adjacent properties.”

The Fifth Circuit vacated EPA’s belated 2010 rejection of a 1994 Texas implementation plan revision that included a flexible permit program for minor new sources. Texas v. EPA, 2012 WL 3264558 (5th Cir. 2012). The program allowed modifications without additional regulatory review as long as emissions would not exceed aggregate limits specified in the permit. The court concluded that EPA failed “to put forth a cogent theory” to support EPA’s concern that the program might allow major sources to evade major source review. EPA’s objection to the discretion afforded to the state under the program “significantly undermines the cooperative federalism that the CAA envisions.”

The Fifth Circuit upheld EPA’s approval of a Texas implementation plan creating an affirmative defense for excess emissions during unplanned startup, shutdown, and malfunction (SSM) events, noting that the affirmative defense for unplanned SSM events was consistent with EPA’s guidance on the issue, is narrowly tailored and does not interfere with attainment of the National Ambient Air Quality Standards. Luminant Generation Co. LLC v. EPA, 2012 WL 3065315 (5th Cir. July 30, 2012). The court concluded that EPA’s disapproval of the affirmative defense for planned SSM events, on the grounds that sources should be able to plan maintenance that might otherwise lead to excess emissions, was entitled to Chevron deference.

Water quality

A federal district court held unlawful EPA’s July 2011 final guidance memorandum on conditions for permits for mountaintop mining operations for Appalachian coal mines. National Mining Ass’n v. Jackson, 2012 WL 3090245 (D.D.C. July 31, 2012). Because the guidance is being applied as binding by field offices in their review of draft permits, the court found that the guidance is a de facto legislative rule subject to judicial review. The opinion concludes that the guidance is an improper incursion into the authority of the Secretary of the Interior under the Surface Mining Control and Reclamation Act, and it usurps the state’s role under the Clean Water Act to determine when and if a discharge has the reasonable potential to exceed water quality standards.

The U.S. Supreme Court has granted certiorari to review two Clean Water Act decisions. In Los Angeles County Flood Control District v. NRDC (No. 11-460), the question presented is whether there is “discharge” from an “outfall” under the act when water from one portion of a river flows through a municipal separate storm sewer system to a lower portion of the same river. In Georgia-Pacific West Inc. v. Northwest Envtl. Defense Center (No. 11-347), the question presented is whether channeled stormwater runoff from forest logging roads is a point source requiring a National Pollutant Discharge Elimination System permit.

Natural resources

The Ninth Circuit upheld regulations allowing the incidental take of polar bears and Pacific walruses resulting from oil and gas exploration activities in the Chukchi Sea and the adjacent coast of Alaska. Center for Biological Diversity v. Salizar, 2012 WL 3570667 (9th Cir. Aug. 21, 2012). The court held that the U.S. Fish and Wildlife Service permissibly determined, under the Endangered Species Act, that only relatively small numbers of polar bears and Pacific walruses would be taken in relation to the size of their larger populations and that the anticipated take would have only a negligible impact on the mammals’ annual rates of recruitment and survival.

Toxic torts

A federal district court dismissed claims against Union Carbide Corporation (UCC) for pollution allegedly caused by a UCC subsidiary at the Bhopal plant in India. Sahu v. Union Carbide Corp., 2012 WL 2422757 (S.D.N.Y. June 26, 2012). The parent was consulted about waste disposal design but the subsidiary was the ultimate decision maker. The court rejected the notion that UCC’s decision to produce pesticides at the plant “automatically equates to the creation of a nuisance.”

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