June 09, 2020

Current Trends in Environmental Civil Litigation

Isela Anchondo, Clair Gardner, and Sarah Hyde

Current trends in environmental civil litigation demonstrate that in suits in which the U.S. Environmental Protection Agency (EPA) is involved, the agency is often the defendant. In terms of citizen suits, trends show there continues to be active litigation in all regions of the United States.

Governmental Enforcement Trends

Since 2015, the EPA’s involvement in civil litigation has decreased—For example, the EPA entered into 36 consent decrees in 2015, but only entered into eight in 2019.. Additionally, the EPA filed 109 civil complaints in 2015, but filed ten less in 2019. However, the EPA involvement as a defendant in civil litigation has been more prevalent recently with states, tribes, and private entities all bringing suits against the EPA in the past two years.

Recent Civil Litigation against the EPA

In ongoing litigation regarding the 2015 Gold King Mine spill, the EPA filed a motion for failure to state a claim against New Mexico and the Navajo Nation’s Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act (RCRA), and other state tort claims. In New Mexico Environment Department v. United States Environmental Protection Agency, 310 F.Supp.3d 1230, 1237 (D.N.M. 2018), the New Mexico Environment Department (NMED) and the Navajo Nation alleged that EPA damaged an abandoned Colorado gold mine while conducting remediation work, thus releasing over three million gallons of acid mine drainage and approximately 800,000 pounds of heavy metals into the Animas River, and traveled into the San Juan River that runs through New Mexico and the Navajo Nation. The court found that NMED and the Navajo Nation’s CERCLA claims had merit because cost recovery and declaratory judgment under CERCLA were appropriate. However, their request for injunctive relief was barred because the EPA already initiated removal actions. The court held the EPA was not joint and severally liable for state tort claims. However, the court did not strike plaintiffs’ punitive damages claim. Based on a recent scheduling order, this case will not go to trial until well into 2021.

In 2018, the U.S. District Court of Wisconsin heard arguments on pretrial motions in Menominee Indian Tribe of Wisconsin v. U.S. Environmental Protection Agency, 360 F.Supp.3d 847 (E.D. Wis. 2018). Here, the Menominee Tribe brought suit against the EPA and the Army Corps of Engineers (Defendants), alleging violations of the Clean Water Act (CWA) and the Administrative Procedure Act (APA) because the EPA declined to oversee a private corporation’s permit. Instead, Environment, Great Lakes, and Energy (EGLE), formerly known as the Michigan Department of Environmental Quality, supervised the permitting process. The Tribe argued the EPA had a duty under the CWA to exercise jurisdiction and oversee the permit, and that the EPA’s refusal to exercise jurisdiction was “arbitrary and capricious.” EPA moved to dismiss the complaint and, consistent with Supreme Court precedent, the Court granted EPA’s motion to dismiss because EPA has enforcement discretion, and the Tribe was not permitted to amend the complaint.

Asbestos Disease Awareness Organization (ADAO) brought suit against EPA’s Administrator in Asbestos Disease Awareness Organization v. Wheeler, No. 19-cv-00871-EMC, 2019 WL 6050752, at *1 (N.D. Cal. Nov. 15, 2019). ADAO alleged the EPA violated the Toxic Substances Control Act (TSCA) and the Administrative Procedure Act (APA) for failing to address a problematic loophole in a 2016 amendment to TSCA. In the amendment, some chemicals such as asbestos, are listed as an “unreasonable risk” but are also categorized as “naturally occurring substances.” Because of this overlap, reporting procedures can be avoided. However, the EPA has not attempted to solve this issue, as this case illustrates. The court dismissed ADAO’s claim under the TSCA reasoning that the ADAO’s claim improperly sought to amend an existing Chemical Reporting Data (CDR) rule, but held ADAO’s claim against the EPA under the APA was proper.

Recent Civil Litigation against Corporations

In November 2019, the U.S. District Court of Washington ruled on motions for summary judgment pertaining to the legitimacy of a citizen suit filed under the CWA. In Waste Action Project v. Port of Olympia, No. C17-5445 BHS, 2019 WL 6215281 (W.D. Wash. Nov. 21, 2019), Waste Action Project, alleged that the Port of Olympia violated two provisions of the CWA for leaking chemicals, including 9,600 gallons of hydrogen peroxide, into water surrounding a peninsula in Olympia for nearly a decade. While the Washington Department of Ecology had been involved in enforcement actions since 2011, the alleged violations had not ceased as of 2019. The court granted Waste Action Project’s motion in part and denied it in part, finding that it was not prohibited from bringing a citizen suit under the CWA because a CWA citizen suit can be maintained so long as the violation is ongoing. The court found that the Washington Department of Ecology’s settlement agreements with Port of Olympia related to this matter did not qualify as penalties because the Waste Action Project was not “piggybacking” on the penalties assessed.

In 2017, nonprofits Environment Texas and the Sierra Club (Citizen Plaintiffs) brought a citizen suit under the Clean Air Act (CAA), against ExxonMobil regarding unauthorized air emissions from a chemical plant near residential communities. In a pretrial hearing on the case Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp., No. CV H-10-4969, 2017 WL 2331679, at *1 (S.D. Tex. Apr. 26, 2017). The court held that the Citizen Plaintiffs had standing to bring suit because residents proved injury in fact, traceability, and redressability. However, there was only actionability on some of the counts because defendant was not in violation of all the counts. The court denied defendant’s motion for declaratory judgment because some violations of CAA were actionable. The court also denied the Citizen Plaintiff’s request for injunctive relief because the public’s respiratory issues did not outweigh the damage the injunction would cause defendant. The court calculated a penalty using the CAA’s penalty factors (size, history, good faith, duration, and economic benefit) and reached a penalty amount of $19,951,278, plus attorney’s fees. This case is currently pending on appeal.

BASF Corporation v. Albany Molecular Research, Inc. No. 1:19-CV-0134 (LEK/DJS), 2020 WL 705367, at *1 (N.D.N.Y. Feb. 12, 2020) is a pending CERCLA case in the Northern District Court of New York. BASF is the current owner of a site responsible for sediment contamination in the Hudson River seeking cost recovery, contribution, and declaratory relief for costs and damages associated with discovering and treating contaminated river sediments from Albany Molecular Research, Inc. other and previous owners. BASF alleges Albany and previous owners were potentially responsible parties responsible for the cost and cleanup because between 1908 and 1976, a sewer line owned/operated by Albany and previous owners discharged untreated wastewater into the Hudson River. The New York State Department of Environmental Conservation issued an Administrative Order of Consent to BASF in 2003 to remediate the pollution by removing contaminated sediment from the river at an estimated cost of $46.9 million. At this point, the court has only ruled on defendants’ motions to dismiss for failure to state a claim and has dismissed BASF’s CERCLA section 113(f)(1) claims against defendants because plaintiff was not sued under CERCLA sections 106 or 107(a). However, the court did not dismiss plaintiff’s CERCLA section113(f)(3)(B) claim because the statute of limitations did not begin running until the state filed its last consent order. Moreover, plaintiff adequately pled successor liability for each relevant defendant

Conclusion

To summarize, the above cases demonstrate that although the EPA’s civil litigation activity has decreased in the enforcement context, civil proceedings are still abundant, often being initiated by plaintiffs including states, tribes, organizations, and corporations.

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    Isela Anchondo, Clair Gardner, and Sarah Hyde

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    Isela Anchondo, Clair Gardner, and Sarah Hyde are J.D. Candidates at the University of New Mexico School of Law, Class of 2021