May 01, 2012

In Brief

Theodore L. Garrett


A court denied summary judgment to a defendant, Appleton Papers, that purchased assets from NCR, a company that allegedly caused pollution of the Fox River. United States v. NCR Corp. & Appleton Papers Inc., No. 08-CV-00016-WCG, 2011 WL 6987813 (E.D. Wis. Dec. 19, 2011). The court stated that Appleton may have expressly agreed to become liable in the NCR purchase agreement, rejecting Appleton’s argument that the continued existence of NCR precludes a finding that Appleton assumed Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) liability.

A district court granted a dissolved company’s motion to dismiss CERCLA claims because state law required that such claims be brought within two years of dissolution. Lewis v. Russell, No. CIV. 2-03-2646, 2012 WL 201877 (E.D. Cal. Jan. 23, 2012). The court rejected the argument of other defendants that the dissolved company waived the defense because it was not included in its responsive pleadings, stating that the court is aware of no case “in which a court has rejected a defendant corporation’s incapacity defense when it was presented well before trial.” 

Air quality

A district court vacated EPA’s stay of the Boiler MACT that was published May 18, 2011 (76 Fed. Reg. 28,662). Sierra Club v. Jackson, No. 11-1278, 2012 WL 34509 (D.D.C. Jan. 9, 2012). The court found that EPA failed to apply the traditional test for granting injunctive relief or to ground the stay on the existence of litigation in the D.C. Circuit.

The Ninth Circuit vacated EPA’s 2010 approval of a 2004 state plan implementing the 1997 one-hour ozone standard in the San Joaquin Valley because the data supporting the plan was not accurate and current as required by the Clean Air Act. Sierra Club & Medical Advocates for Healthy Air v. EPA, 2012 WL 164839 (9th Cir. Jan. 20, 2012). The court found that EPA failed to explain its decision to rely on emissions estimates using a 2004 computer model when, three years before the plan was approved, EPA had access to data generated by a newer EPA-approved model.

A federal appeals court rejected challenges to a sulfur dioxide (SO2) emissions control plan and emissions limits on flaring of excess gases in EPA’s federal implementation plan for Montana. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174 (9th Cir. 2012). The court was not persuaded by claims that EPA based SO2 limits on modeling and ignored monitoring data, noting that “the Clean Air Act expressly recognizes modeling as an appropriate regulatory tool.” The court also rejected challenges to the infeasibility of flaring limits during startup, shutdown, and malfunction periods, stating that the Clean Air Act requires continuous limits on emissions and that EPA provided an affirmative defense to address such potential violations.

A court of appeals dismissed a lawsuit challenging the inclusion of portions of two Utah counties in the Salt Lake City nonattainment area for fine particulate matter. ATK Launch Systems, Inc. v. EPA, 2012 WL 593097 (D.C. Cir. Feb. 24, 2012). The court stated that EPA reasonably explained its designations, based on a nine-factor method that accounts for diverse considerations, including the varying effects of local topography and meteorology.

Water quality

A court held invalid EPA’s numeric criteria for nutrients in Florida streams, which sought to prevent variations from natural reference levels, stating that “the Administrator was shooting at a target intended to identify any change in nutrient levels, not just a harmful change.” Fla. Wildlife Fed’n v. EPA, 2012 WL 537529 (N.D. Fla. Feb. 18, 2012). For similar reasons, the court rejected EPA’s downstream protective values for unimpaired lakes. Other aspects of EPA’s rule were upheld. The court’s opinion rejected the argument that the adoption of total maximum daily loads avoided the need for numeric criteria, stating that Florida’s impaired waters is evidence “that it needs new criteria to avoid impairment in the first place.” 

The U.S. Supreme Court reversed a Montana Supreme Court decision requiring a hydrologic dam owner to pay back rent for the use of three river beds. PPL Mont. LLC v. Montana, 132 S. Ct. 1215 (Feb. 22, 2012). River beds are navigable for the purposes of state title only if they “were used” or “were susceptible of being used as highways of commerce” at its date of statehood, the opinion states. Evidence of present day use, primarily recreational, relied on by Montana is not sufficient to establish navigability for the purposes of title transfer absent findings concerning susceptibility of commercial use at the time of statehood.

Endangered species

The Ninth Circuit affirmed a ruling vacating the U.S. Fish & Wildlife Service’s (FWS) decision to remove Yellowstone grizzly bears from the threatened species list under the Endangered Species Act. Greater Yellowstone Coalition, Inc. v. Servheen, 665 F.3d 1015 (9th Cir. 2011). The court criticized the FWS for relying on “‘adaptive management’ to justify its decision to delist the grizzly despite the scientific uncertainty.” The court was not persuaded by the agency’s suggestion that the future possibility of relisting a species could justify delisting, stating that “[p]romises to monitor, review, and convene committees do not satisfy the statutory requirement.”

Injunctive relief

Claims by citizens challenging development of a golf course on environmental grounds were dismissed as moot. Weiss v. Sec’y of the U.S. Dep’t of the Interior, 10-1313, 2012 WL 204494 (6th Cir. Jan. 25, 2012). The district court denied summary judgment, and the Sixth Circuit affirmed, stating that because the golf course had been completed, the court could not provide meaningful relief. Asking the agencies to revisit their environmental impacts was like “ask[ing] a meteorologist on Friday to redo the Thursday forecast.” The court of appeals also found the historic preservation claims moot because “any effects on the Park’s historical character have already occurred.”

Migratory Bird Treaty Act

The criminal enforcement provisions of the Migratory Bird Treaty Act do not apply to the operations of an oil reserve pit used to store drilling muds that resulted in the death of migratory birds. United States v. Brigham Oil & Gas, 2012 WL 120055 (D.N.D. Jan. 17, 2012). Noting that the pit was not for the purpose of hunting or poaching, the court held that “lawful commercial activity which may indirectly cause the death of migratory birds does not constitute a federal crime.”

Theodore L. Garrett

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.