September 01, 2012

In Brief

Theodore L. Garrett

Constitutional law

The Supreme Court held that the individual mandate of the Affordable Care Act is a constitutional exercise of Congress’ power to tax. Nat’l Fed’n of Indep. Bus v. Dep’t of Health and Human Servs., 132 S. Ct. 2566 (2012). However, the majority rejected the administration’s argument that the individual mandate is constitutional as an exercise of Congress’ power under the Commerce Clause and the Necessary and Proper Clause. The majority also held that the government could not condition continued receipt of a state’s existing Medicaid funding on agreement to implement the Medicaid expansion. The potential loss of more than 10 percent of a state’s overall budget, the Chief Justice wrote, is “economic dragooning that leaves the states with no real option but to acquiesce in the Medicaid expansion.” Some commentators have suggested that the Court’s ruling may prompt challenges to provisions of the Clean Air Act allowing EPA to withhold federal highway funds from states that do not develop adequate implementation plans.

The imposition of criminal fines under the Resource Conservation and Recovery Act (RCRA) was held invalid under the Sixth Amendment. Southern Union Co. v. United States, 132 S. Ct. 2344 (2012). In that case, after a jury found the company’s waste storage practices violated RCRA, a trial judge set the fine based on a finding that the company was in violation for 762 days. Defendant argued that the only violation the jury necessarily found was for one day. Justice Sotomayor’s opinion for the majority states that the doctrine in Apprendi v. New Jersey, 530 U.S. 466, applies to criminal fine as well as imprisonment and guards against “judicial fact finding that enlarges the maximum punishment a defendant faces beyond what the jury’s verdict or the defendant’s admissions allow.” The Supreme Court’s ruling will require the government to prove to juries the facts that govern a criminal fine’s maximum amount.


Rejecting a party’s claim of divisibility, a trial judge granted the government’s request for an injunction compelling the cleanup of polychlorinated biphenyls (PCBs). United States v. NCR Corp., No. 10-C-910, 2012 WL 1490200 (E.D. Wis. Apr. 27, 2012). The court found that cleanup costs did not correspond to the volume of PCBs, noting that some PCBs were near the surface and needed to be dredged while others were buried deep and can be capped relatively cheaply or even ignored altogether. Natural and anthropogenic forces have moved and redistributed river sediment. Because the expense of cleanup was only weakly correlated with the mass of PCBs discharged by the parties and is affected more by collateral effects and independent factors, the court concluded that the harm is not divisible.

A trial court apportioned liability, for perchloroethylene contamination, equally between plaintiff and defendant, after deducting settlement payments. AmeriPride Servs., Inc. v. Valley Indus. Serv., Inc., No. Civ. S-00-113 LKK/JFM, 2012 WL 1413880 (E.D. Cal. Apr. 20, 2012). The court found that traditional “Gore” factors did not “fairly measure apportionment,” the expert testimony was divided on the relative responsibility of the parties, and there was no way of clearly allocating responsibility for the contamination.

Air quality

The D.C. Circuit upheld EPA regulations requiring new major sources and major modifications after January 2, 2012 to implement the “best available control technology” to limit greenhouse gas (GHG) emissions. Coalition for Responsible Regulation, Inc. v. EPA, No. 09-1322, 2012 WL 2381955 (D.C. Cir. June 26, 2012). The court held that EPA’s “endangerment” finding was supported by the record, and the existence of some uncertainty was not fatal given that the statute is precautionary in nature. Once EPA made the endangerment finding, the Clean Air Act imposed a non-discretionary duty on EPA to adopt regulations applicable vehicle GHG emissions. The court also rejected petitioner’s argument that Prevention of Significant Deterioration could be triggered only by emissions of National Ambient Air Quality Standards pollutants, concluding that the reading of “any air pollutant” to mean “any pollutant regulated under the Clean Air Act” including GHG emissions, was compelled by the language of the statute. Finally, the D.C. Circuit rejected remaining challenges, concluding that petitioners’ lack standing to challenge the Timing and Tailoring rules, which “actually mitigate petitioners’ purported injuries.”

A citizen group may not sue to compel a state to administer a federal Clean Air Act (CAA) regulation that the state no longer wishes to enforce. Sierra Club v. Christopher Korleski, 681 F.3d 342 (6th Cir. 2012). In 2006, the Ohio General Assembly enacted legislation that allows the Ohio EPA Director to issue permits to sources emitting less than 10 tons per year without first determining whether those sources will employ “best available technology.” The majority opinion concludes that a state’s failure to regulate is not a “violation” of the CAA, and that the statute does not allow citizen suits against state regulators qua regulators. If a state fails to enforce a State Implementation Plan or permit program, EPA has various remedies against the regulated parties. Moreover, the CAA provides that if a state has failed to implement a requirement in its SIP after an 18-month cure period, EPA “shall” impose one of the sanctions in the statute. The majority thus concludes that if the plaintiffs “want to sue a regulatory agency, they can do so. They have simply chosen the wrong one. The agency that the Act authorizes them to sue is the federal EPA.”

Water quality

EPA’s Environmental Appeals Board (EAB) remanded permits for two wastewater injection disposal wells for a Pennsylvania-based hydraulic fracturing operation. In Re: Bear Lake Properties, LLC, 2012 WL 2586960 (EAB June 28, 2012). The EAB found that the record does not support a finding that EPA satisfied its obligation to show that all drinking water wells within the area of the injection wells would be protected. The petition argued that the permittee failed to supply complete and accurate information on the depth of nearby water wells and the number of total water wells located within a mile of the planned underground injection control wells. The EAB concluded that the Region 3 had “failed to clearly articulate its regulatory obligations or compile a record sufficient to assure the public that the Region relied on accurate and appropriate data in satisfying its obligations.” On remand, the Region must “clearly articulate its obligations and the data relied upon in complying with its obligations,” the EAB concluded, adding that if EPA Region 3 decides to reissue the permits, it must “include specific and detailed findings” for public comment.


A federal district court dismissed a suit under RCRA seeking to reduce diesel particulate emissions from locomotives and other equipment operating in rail yards in California. Ctr. for Cmty. Action & Envtl. Justice. v. Union Pac. Corp., 2012 WL 2086603 (C.D. Cal. May 29, 2012). The court found that diesel exhaust emissions, which plaintiffs alleged contained the hazardous substances arsenic and cadmium, are not a solid or hazardous waste under RCRA. The court stated that “a finding that emission of diesel exhaust constitutes disposal of solid waste in this instance would nonetheless bring every diesel-burning vehicle within the scope of RCRA.” Congress decided to prohibit federal regulation of indirect sources of emissions under the Clean Air Act, the court noted, and it would be unreasonable to assume that Congress intended to regulate indirect source emissions through the citizen suit provisions of RCRA.


The Fifth Circuit dismissed challenges against the government’s approval of sixteen Gulf of Mexico oil and gas exploration and production plans. Gulf Restoration Network, Inc. v. Salazar, No. 10-60411, 2012 WL 1943636 (5th Cir. May 30, 2012). Petitioners argued that the Department of the Interior’s approvals of the plans violated both the Outer Continental Shelf Lands Act and the National Environmental Policy Act, because the government failed to consider the BP Deepwater Horizon disaster in approving further deepwater drilling, and because the government applied categorical exclusions from NEPA requirements even though the oil and gas plans involved drilling in areas of high biological sensitivity and high seismic risk. The Outer Continental Shelf Lands Act provides that judicial review “shall be available only to a person who participated in the administrative proceedings related to the actions” of the government about which he or she complains, 43 U.S.C. § 1349(c)(3)(A), and the Fifth Circuit found that the environmental petitioners had failed to participate in the underlying administrative approval processes.

Theodore L. Garrett

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