March 01, 2013

In Brief

Theodore L. Garrett

Constitutional law

The Supreme Court held that government-induced flooding of land may be a takings compensable under the Fifth Amendment even if it is limited in duration. Arkansas Game & Fish Comm’n v. United States, 133 S. Ct. 511 ((2012). From 1993 to 2000 the U.S. Army Corps of Engineers (Corps) periodically authorized flooding into a 23,000 acre wildlife management area during the peak timber growing season. The Arkansas Game and Fish Commission sued the United States, alleging that the temporary flooding adversely impacted the wildlife management area and constituted a taking of property that entitled the commission to compensation. The Court of Federal Claims’ judgment in favor of the commission was reversed by the Federal Circuit, which held that the Corps’ actions could give rise to a taking claim only if the flooding is “permanent or inevitably recurring.” The Supreme Court reversed, finding no justification for setting flooding apart from other government intrusions on property. The Court rejected the government’s argument that reversing the Federal Circuit’s decision risks disrupting public works dedicated to flood control. The government’s other arguments relating to causation, foreseeability, and substantiality remain open to consideration upon remand.

A land owner who was denied a Clean Water Act (CWA) § 404 permit to fill wetlands to develop his property was held not entitled to compensation under the Fifth Amendment. Mehaffy v. United States, 2012 WL 6097768 (Fed. Cir. Dec. 10, 2012) (not certified for publication). The plaintiff purchased the property in May 2000, long after the enactment of the CWA, and thus he did not have a reasonable, investment-backed expectation that he could develop the property without being subject to the permit requirements of the act. The fact that an easement was granted to a prior owner before the passage of the CWA is not probative, because the reasonableness of plaintiff’s expectations must be considered as of the time he purchased the property and plaintiff knew as early as 1980 that the Army Corps of Engineers intended to apply § 404 to the property.

Clean Water Act

The Supreme Court held that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants under the Clean Water Act. L.A. Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc., 133 S. Ct. 710 (Jan. 8, 2013). The Natural Resources Defense Council, Inc. and other parties had filed a citizen suit alleging that the District was violating the terms of its separate storm water system permit based on water stations located at monitoring stations where water flowed out of concrete-lined portions of the rivers to the unlined portions of the same rivers. The Court relied on its opinion in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 109–112 (2004), holding that the transfer of contaminated water between two portions of the same water body did not constitute a discharge of pollutants under the act.


A district court granted summary judgment to the United States concerning the propriety of the remedy to clean up the Lower Fox River Site. United States v. NCR Corp., No. 10-C-910, 2012 WL 5879106 (E.D. Wis. Nov. 21, 2012). A 2007 Record of Decision (ROD) remedy involved dredging, sand covering and capping PCB-contaminated sediment. By 2009 it had become clear that the ROD remedy would cost $701 million and that capping, which was estimated to cost $484 million, would be much cheaper. The district court agreed with the agencies that the cost increases alone are not a “fundamental” change in the basic nature of the remedy and thus do not require a ROD amendment. Rather, issues such as the method of remediation, the public impact, and feasibility “might be amenable to public comment, which is the very purpose of the ROD amendment procedures.” The initial cost estimates for the remedy had anticipated as much as a 50 percent cost overrun, and the record demonstrates a substantial effort by the agencies to “consider all options fairly and honestly—without prejudice, without arbitrariness and without caprice.”

Air quality

The D.C. Circuit upheld EPA’s regulation of hazardous air pollutants (HAPs) from gold mine ore processing and production. Desert Citizens Against Pollution v. EPA, 699 F.3d 524 (D.C. Cir. 2012). The D.C. Circuit rejected petitioner’s claim that whenever EPA sets maximum achievable control technology (MACT) standards for a source under Clean Air Act (CAA) § 112(c)(6), which governs seven specific HAPs, it must impose MACT standards for emissions from that source of any HAP listed anywhere in § 112 of the CAA. The court deferred to EPA’s interpretation of the statute, noting that petitioner’s view would risk undercutting the priority that Congress assigned to the § 112(c)(6) HAPS. The court also held that EPA properly concluded that the record before it provided insufficient information to regulate fugitive emissions.

The D.C. Circuit vacated EPA’s determination that it had met the regulatory obligations imposed on it by CAA § 112(c)(6) to list sources accounting for not less than 90 percent of the aggregate emissions of the pollutants subject to standards under § 112(d)(2) or (4). Sierra Club v. EPA, 699 F.3d 530 (D.C. Cir. 2012). The court held that EPA failed to provide notice and an opportunity for comments on the determination in violation of the Administrative Procedure Act. The court also rejected EPA’s argument that the Sierra Club was using the present suit as a back door to attack long past rulemakings as satisfying the requirements of § 112(c)(6).

A coal-fired electric plant that replaced reheaters was held not entitled to the “routine maintenance, repair or replacement” (RMMR) exception to the new source review requirements for major modifications. United States v. La. Generating, LLC, No. 09-100-JJB-CN, 2012 WL 4107129 (M.D. La. Sept. 18, 2012). The district court reviewed the nature, extent, purpose, frequency, and cost of the work, the “WEPCO Factors,” and emphasized that one should look across the industry at similar work on similar units in determining whether the work is routine. The court concluded that “[c]ommon sense dictates that when a generating facility takes 25 days and spends $4.5 million—the largest amount ever spent on the unit—with the intent to decrease forced outages and therefore increase future generation, this work cannot in any way be considered routine.”

Endangered Species Act

The Ninth Circuit invalidated the approval of a 678-mile natural gas pipeline project from Wyoming to Oregon. Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir. 2012). The court held that the biological opinion by the U.S. Fish and Wildlife Service (FWS) improperly relied on voluntary measures not part of the proposed action and not enforceable under the Endangered Species Act. The court also found that the FWS failed to consider the impacts on fish of withdrawal of groundwater, along the pipeline, that could affect surface water levels, and the court invalidated the Bureau of Land Management’s Record of Decision that relied on the Biological Opinion.

Theodore L. Garrett

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