January 01, 2014

In Brief

Theodore L. Garrett
Constitutional law

The Ninth Circuit affirmed a district court ruling that the state of Nevada may recover costs to clean up soil and groundwater contamination from dry cleaning chemicals, even though the events occurred solely in Nevada. Voggenthaler v. Maryland Square, 724 F.3d 1050 (9th Cir. July 26, 2013). The court rejected the contention that application of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in such circumstances violated the Commerce Clause. Noting that Congress made groundwater protection a priority in enacting CERCLA, the opinion states that groundwater is an article of commerce because groundwater supports irrigated farming that supplies markets worldwide and because groundwater contamination results in cleanup costs that burden commerce.


A party that agreed to undertake cleanup of its industrial property in a settlement with the state may sue a prior owner for contribution under section 113(f) of CERCLA, the Third Circuit held. Trinity Indus., Inc. v. Chicago Bridge & Iron Co., 2013 WL 4418534 (3d Cir. Aug. 20, 2013). The court disagreed with a Second Circuit opinion to the contrary and rejected the prior owner’s argument that section 113(f) contribution extends only to resolution of CERCLA claims. EPA submitted an amicus brief in support of appellant Trinity, which had settled with the state.

The Fifth Circuit affirmed the dismissal of CERCLA and Clean Water Act claims against BP and Transocean following the Deepwater Horizon oil spill. Ctr. for Biological Diversity v. BP Am. Prod. Co., 704 F.3d 413 (5th Cir. 2013). The court held that because BP had been ordered to clean up the site and was proceeding to do so, and in the absence of concrete allegations that the cleanup was deficient, the case was moot: “Because those efforts have been ongoing, and absent a clear reason from the Center to find them deficient, we see no error in the district court’s conclusion that it could grant no further relief to the plaintiff beyond what is already being done.”

Air quality

The court rejected industry’s argument that EPA did not have authority to establish emission standards for sewage sludge incinerators under section 129 of the Clean Air Act. Nat’l Ass’n of Clean Water Agencies (NACWA) v. EPA, 2013 WL 4417438 (D.C. Cir. Aug. 20, 2013). Acting under pressure of a court deadline to establish the standards, EPA used several different methods to estimate the emissions levels achieved by existing incinerators. The D.C. Circuit agreed that EPA may use statistical methods when there are insufficient data to establish maximum achievable control technology standards for sewage sludge incinerators. However, the court found that EPA did not account for the fact that incinerator emissions are affected by factors such as the fuels they use, the ages of individual units, and their use of control devices, and remanded the rule to EPA.

The Eight Circuit upheld EPA’s rejection of a North Dakota emission reduction plan to address regional haze. North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013). The court held that EPA’s decision to reject North Dakota’s determination that selective non-catalytic reduction technology was not best available retrofit technology (BART) for a power plant, for failing to follow guidelines and consider compliance costs, was not arbitrary and capricious. The court rejected arguments by the state and industry that EPA’s role in reviewing a state’s BART determination is limited to ensuring that at least minimal consideration is given to each factor and does not allow EPA to examine the reasonableness of the underlying decision, finding that although the states have “the primary role of determining the appropriate pollution controls within their borders, EPA is left with more than the ministerial task of routinely approving SIP submissions.”

Environmental groups lack standing to bring a Clean Air Act citizen suit to compel a state agency to regulate greenhouse gas (GHG) emissions from oil refineries, the Ninth Circuit held. Wash. Envtl. Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013). The court assumed without deciding that man-made sources of GHG emissions are causally linked to climate change, but held that plaintiffs failed to establish a causal link between their asserted injuries and the refineries’ GHG emissions. The court also held that plaintiffs failed to show that their claimed injuries would be redressed by a court order requiring defendants to control GHG emissions from the refineries.

Water quality

The Seventh Circuit reversed a decision that a mining company was unlawfully discharging stormwater without a National Pollutant Discharge Elimination System (NPDES) permit. Wis. Res. Prot. Council v. Flambeau Mining Co., 727 F.3d 700 (7th Cir. 2013). The state Department of Natural Resources had terminated the company’s Wisconsin Pollutant Discharge Elimination System (WPDES) permit and advised the company that storm water discharges would be regulated by its mining permit. The Seventh Circuit ruled that because the company did not have fair notice that its mining permit was not sufficient, and because the state deemed the mining permit a WPDES permit, the company was protected by the NPDES permit shield.

A U.S. Army Corps of Engineers’ decision that a wetland is a “water of the United States” is not subject to judicial review, a district court held. Hawkes Co. v. U.S. Army Corps of Eng’rs, 2013 WL 3974484 (D. Minn. 2003). The court distinguished the Supreme Court’s decision in Sackett, where violations of an EPA order gave rise to penalties. A jurisdictional decision is not final agency action because the Corps’ jurisdictional determination “does not fix [plaintiffs’] rights or obligations” and “does not order Plaintiffs to take any kind of action.”

A district court held invalid an EPA order finding that rainfall runoff of manure, dander, and litter from the farmyard of a poultry operation without a permit is in violation of the Clean Water Act. Lois Alt v. EPA, 2013 WL 5744778 (N.D. W.Va. Oct. 23, 2013). The opinion concludes that “the litter and manure which is washed from the Alt farmyard to navigable waters by a precipitation event is an agricultural stormwater discharge and therefore not a point source discharge,” thereby rendering it exempt from the NPDES permit requirements of the act. The court also rejected EPA’s argument that the discharge did not have an agricultural purpose.

A district court rejected EPA’s motion to dismiss a suit by environmental groups challenging EPA’s failure to review a state area-wide plan under section 208 of the Clean Water Act. Conservation Law Found. v. EPA. 2013 WL 4581218 (D. Mass. Aug. 29, 2013). As part of the EPA’s annual review process, the court ruled, EPA has a duty to ensure that states are administering their state revolving funds in accordance with an applicable area-wide plan.


Offers of judgment pursuant to Fed. R. Civ. P. 68 may be made in the context of attorneys’ fee disputes under the fee-shifting provisions of the Resource Conservation and Recovery Act. Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 719 F.3d 281 (3d Cir. 2013). The court of appeals rejected appellees argument that offers of judgment were inconsistent with Congress’ decision to allow citizen suits because Rule 68 facilitates settlement without abridging a substantive right.


The Fourth Circuit upheld a trial court order granting summary judgment to the defendant, Chesapeake Appalachia, in a lawsuit for common law trespass. Whiteman v. Chesapeake Appalachia LLC, 729 F.3d 381 (4th Cir. 2013). The Whitemans, who lived on and raised sheep on 101 acres of land, claim that the defendant, which owns lease rights to minerals beneath the Whitemans’ property, used an open system of drill waste disposal for its gas wells. Plaintiffs sought injunctive relief to remove the waste pits in order to eliminate the owners’ possible future liability. The appeals court concluded that the trial court correctly found that creating drill waste pits was lawful and reasonably necessary for enjoyment of the mineral estate (i.e., recovery of natural gas) and did not impose a substantial burden on the plaintiffs’ surface property. 

Theodore L. Garrett

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