In Brief

Vol. 45 No. 5

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

CERCLA

The Third Circuit, in an unpublished opinion, affirmed a lower court decision dismissing as time-barred a state environmental agency’s Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) lawsuit seeking reimbursement of response costs incurred at a former landfill. Pa. Dep’t Envtl. Prot. v. Beazer East, Inc., No. 13-1209, 2014 WL 23742 (3d Cir. Jan. 2, 2014). The defendants argued that because the state agency finished its “removal” cleanup in January 2004, the 2009 complaint was past the three-year deadline. The agency claimed that its response actions were a permanent remedy constituting a CERCLA “remedial” action, and therefore the six-year statute of limitations applied. The court found that the complaint did not support the conclusion that the response actions were a permanent remedy, noting that the state initially labeled these actions as an “interim” response.

Air quality

The D.C. Circuit vacated a U.S. Environmental Protection Agency (EPA) rule establishing a federal implementation plan for the attainment of national ambient air quality standards in non-reservation “Indian country.” Oklahoma DEQ v. EPA, 740 F.3d 185 (D.C. Cir. 2014). Because EPA had not made a prior determination of tribal jurisdiction before regulating those areas, the court held that EPA was without authority to displace Oklahoma’s state implementation plan in non-reservation Indian country.

Water quality

An environmental group was found to have standing to sue concerning unpermitted discharges from a former mining operation even though the discharges achieved state water quality standards. Ohio Valley Envtl. Coalition, Inc. v. Hernshaw Partners, LLC, Civ. Action No. 2:13-CV-14851, 2013 WL 6225130 (D. W.Va. Dec. 2, 2013). The opinion states that citizens suit plaintiffs need only allege that a particular stream segment has aesthetic or recreational value and that they are harmed by the possibility of unpermitted pollutants entering that stream. The court also found that sufficient “ongoing” violations of the Clean Water Act existed because of prior discharges with present effects, here the deposit of material containing selenium in a valley fill which resulted in periodic and continuing discharges of selenium contamination. Relying on the phrase “including but not limited to,” the district court held that the valley fill was a point source requiring a National Pollutant Discharge Elimination System (NPDES) water discharge permit. The court rejected the defendant’s argument that it was not responsible for and received no benefits from the construction of the valley fill, stating that “there is simply no causation requirement” in the Clean Water Act.

A district court granted summary judgment to the defendant in a citizen suit against a municipality for allegedly discharging pollutants without an NPDES permit. Gallagher v. E. Buffalo Twp., 4:12-cv-00777 (M.D. Pa. Aug. 29, 2013). The plaintiff, a property owner, alleged that the municipal discharge to her property was not “composed entirely of storm water” because it contains various pollutants, including sediment, garbage, and petroleum products. There was no allegation that the township added pollutants to its stormwater, however, and the court reasoned that when Congress created an exemption for “discharges composed entirely of stormwater,” Congress “must have contemplated that such discharges contained pollutants.”

RCRA

Offers of judgment pursuant to Federal Rule of Civil Procedure 68 may be made in attorney fee disputes in Resource Conservation and Recovery Act (RCRA) citizen suits. Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 726 F.3d 403 (3d Cir. June 2013). In connection with a dispute over fees, Honeywell served offers of judgment as to the disputed fees, which appellees contended were void in a RCRA citizens suit. The court of appeals found that Rule 68 does not affect a litigant’s substantive rights and rejected the argument that Rule 68 cannot apply after a judgment has been rendered on liability.

Environmental justice

A district court dismissed a suit alleging that a recipient of EPA funds discriminated under the Civil Rights Act. Garcia v. McCarthy, No. 13-cv-03939-WHO (N.D. Cal. Jan. 16, 2014). The court held that EPA acted within its discretion when it dismissed a petition claiming that the California Department of Pesticide Regulation discriminated against Latino schoolchildren by disproportionately exposing them to a pesticide when it approved the chemical’s use. EPA had issued an initial draft disparate impact finding but revoked it as part of a settlement. The court indicated that plaintiffs’ remedy may be to challenge the California action in state court. The opinion states that “while the facts, as alleged, point to serious problems that the EPA could have addressed more meaningfully, the law does not allow the court to wade into this dispute.”

Energy

In February 2014, EPA issued “Permitting Guidance for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels,” Guidance #84 under the Underground Injection Control (UIC) Program. In its February 2014 guidance document, EPA sets forth the agency’s interpretation of existing legal requirements and non-binding recommendations for EPA permit writers to consider in applying UIC Class II regulations to hydraulic fracturing when diesel fuels, defined as five specific fuels, are used in fracturing fluids or propping agents. For example, EPA discusses delineating a site-specific area of review to ensure there are no conduits that could allow the escape of contaminants, and mechanical integrity tests to ensure that the protective physical components of the well including the casing and cement are competent prior to injection and throughout the life of the well.

A state judge ruled that Nebraska violated its constitution when it allowed the governor to approve the Keystone XL pipeline. Thompson v. Heineman, No. CI 12-2060 (Neb. Dist. Ct. Feb. 19, 2014). The judge blocked Governor Heineman “from taking any action on the governor’s January 22, 2013 approval of the Keystone XL Pipeline route,” including acquiring land by eminent domain for the pipeline project. The court concluded that the state legislature’s decision to take the siting decision from its Public Service Commission and give it to the governor violated the state’s constitution. More than 200 miles of the TransCanada pipeline, which would carry heavy crude oil from Canada to refineries along the Gulf of Mexico, runs through Nebraska.

Class actions

Lawsuits by a state attorney general seeking relief on behalf of a state’s citizens cannot be removed to federal court as “mass actions” under the Class Action Fairness Act (CAFA). Mississippi v. AU Optronics Corp., 134 S. Ct. 736; 187 L. Ed. 2d 654 (2014). The Attorney General of Mississippi filed a parens patriae action alleging that liquid crystal display manufacturers engaged in unlawful price-fixing, and sought equitable and compensatory relief on behalf of both the state and its citizens. The defendants removed the action to federal court under CAFA, which gives federal courts original subject matter jurisdiction over certain “mass actions,” defined as “any civil action . . . in which the monetary relief claims of 100 or more persons are proposed to be tried jointly” because they involve common questions of law or fact. The U.S. Supreme Court concluded that the “100 or more persons” referred to in the statute are not unspecified individuals who have no actual participation in the suit, such as the state “citizens” as plaintiffs in this case. 

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