January 01, 2015

In Brief

Theodore L. Garrett

Constitutional law

A California state law that established very strict cleanup standards for radioactive contamination at a federal nuclear site interferes with the functions of the federal government in violation of the Supremacy Clause, the Ninth Circuit held. Boeing Co. v. Movassaghi, 768 F.3d 832 (9th Cir. 2014). The Ninth Circuit found that the California state law discriminated against the federal government because the standards, requiring cleanup levels suitable for suburban residential or rural agricultural use, are substantially more stringent than applicable elsewhere in California. As the court of appeals put it, “In effect, [the state legislation] would require that hypothetical subsistence farmers could live safely on their farms eating nothing but their chickens, eggs, crops, and cheese and drinking their milk from their cows eating the grass, in this patch of nuclear and chemical toxic waste in the Los Angeles suburbs.”

The Ninth Circuit held that a California county’s “first in the nation” Safe Drug Disposal Ordinance, requiring manufacturers to collect and safely dispose of unwanted prescription drugs regardless of who manufactured the drugs, was constitutional under the Commerce Clause. Pharm. Research and Mfrs. of Am. v. County of Alameda, 768 F.3d 1037 (9th Cir. 2014). The court rejected claims that the ordinance violated the Commerce Clause because the ordinance applies to all manufacturers that make their drugs available in the county without regard to the geographic location of the manufacturer. The court also rejected the claim that the ordinance substantially burdens commerce because the plaintiffs failed to provide evidence that the ordinance will affect the interstate flow of goods. The court noted that the parties did not contest the environmental, health, and safety benefits of the ordinance for purposes of the cross-motions for summary judgment.

Citizen suits

A federal district court ordered the Sierra Club to pay $6.4 million in attorneys’ fees to a utility that prevailed in a Clean Air Act citizen suit. Sierra Club v. Energy Future Holdings Corp., No. 6:12-cv-00108-WSS (W. D. Tex. Aug. 29, 2014). The court found that the Sierra Club’s complaints about emission limit violations were subject to an affirmative defense under the utility’s Title V permit because the exceedances were due to malfunction, startup, and shutdown events. The Sierra Club’s claims of repeated particulate and/or opacity violations “were frivolous, unreasonable, or groundless, and thus Defendants are entitled to an attorneys’ fees award.”

CERCLA

The Seventh Circuit vacated a district court’s injunction requiring potentially responsible parties (PRPs) to comply with a U.S. Environmental Protection Agency (EPA) Superfund order, finding it an “inappropriate mechanism to enforce an administrative order” under section 106(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). U.S. v. P.H. Glatfelter Co., 768 F.3d 662 (7th Cir. 2014). The court affirmed much of the district court’s decision in favor of the government in this complex multi-river and lake site in Wisconsin. The court found that EPA properly addressed a 62 percent increase in the cost of the remedy for a dredge and capping operation in an explanation of significant differences and that this increase did not require an amendment to the Record of Decision. But, the court reversed the lower court’s issuance of a permanent injunction compelling the PRPs to comply with EPA’s unilateral administrative order. The court noted that CERCLA already authorizes civil penalties for violation of such an order without sufficient cause and that one of the parties, NCR, had already committed to perform the cleanup. Finally, the court held that NCR could make showing of divisibility on remand, reversing the district court’s holding that contamination and resulting harm were “binary in nature.” The court stated that if NCR could establish the extent to which it contributed to polychlorinated biphenyl (PCB) levels in a particular operable unit, then NCR might be able to establish a basis for apportionment because “remediation costs are still a useful approximation of the degree of contamination” in that area.

Air quality

Plaintiffs’ failure to file suit within the statutory 60-day deadline after EPA’s published decision not to object to a state-issued Title V permit does not deprive a court of jurisdiction, the Seventh Circuit held. Clean Water Action Council of Northeastern Wisconsin v. EPA, 765 F.3d 749 (7th Cir. 2014). The panel rejected EPA’s argument that the lawsuit necessarily challenges EPA’s regulations governing which permits may be renewed, and thus plaintiffs should have filed their suit in the D.C. Circuit and within 60-days of publication of the regulations. The Seventh Circuit concluded that that “the venue and filing provisions of [42 U.S.C.] § 7607(b) are not jurisdictional.” The court held that the Clean Air Act’s venue and “claims-handling” provisions are not jurisdictional requirements, although the decision creates a conflict among the circuits.

A divided Fifth Circuit panel upheld a district court’s order enforcing administrative subpoenas issued by the Chemical Safety and Hazard Investigation Board (CSB) in connection with an investigation following the disaster on the Deepwater Horizon platform in the Gulf of Mexico. U.S. v. Transocean Deepwater Drilling, Inc., 767 F.3d 485 (5th Cir. 2014). The panel held that although the multi-district litigation found the Deepwater Horizon platform to be a vessel under general maritime law, the platform was nonetheless also a “stationary source” under the Clean Air Act. The court also rejected Transocean’s argument that the incident was a “marine oil spill” over which the CSB lacks jurisdiction. The dissent disagreed, stating that the majority expands the jurisdiction of the CSB “into novel territory disallowed by Congress,” noting that this is the first time that the CSB has sought to investigate a mobile oil platform in connection with an offshore oil spill.

The U.S. Court of Appeals for the Tenth Circuit upheld EPA’s approval of a regional cap-and- trade program regulating sulfur dioxide emissions over the Colorado Plateau established to satisfy regional haze pollution control mandates. Wildearth Guardians v. EPA, Nos. 12–9596, 2014 WL 5334682 (10th Cir. Oct. 21, 2014). The court deferred to EPA’s weight of evidence conclusion that the trading program was a better alternative than a “best available retrofit technology” approach and rejected the arguments of environmental groups that the cap-and-trade program will not make reasonable progress towards eliminating visibility impairment.

Water quality

A district court rejected claims that the Army Corps of Engineers (Corps) must consider potential adverse human health effects associated with surface coal mining when issuing Clean Water Act (CWA) section 404 dredge-and-fill permits. Ohio Valley Envtl. Coalition v. U.S. Army Corps of Eng’rs, No. 2:12–6689, 2014 WL 4102478 (D. W.Va. Aug. 18, 2014). The district court held that the Corps’ review under the Clean Water Act and the National Environmental Policy Act (NEPA) is limited to those effects arising from the “discharge of dredged or fill material,” noting that plaintiffs “do not point to any adverse health effects arising from those discharge activities.”

On remand from the D.C. Circuit, the district court held that EPA’s decision to withdraw the Corps’ grant of a section 404 permit for a West Virginia mine “was reasonable, supported by the record, and based on considerations within the agency’s purview.” Mingo Logan Coal Co. v. EPA, No. 10-0541 AJB, 2014 WL 4828883 (D.D.C. Sept. 30, 2014). The district court held that EPA was not required to have “new evidence” to exercise its veto authority after a permit issues. The court also held that section 404(c) allows EPA “to determine that merely meeting state water quality standards is insufficient” when it is deciding whether section 404 discharges will have unacceptable adverse effects, for example on wildlife or where a state has not issued a section 401 certification.

Federal lands

Reversing his earlier decision, a district judge denied industry groups’ standing to challenge a Department of the Interior decision to withdraw one million acres of federal land near the Grand Canyon from uranium mining for 20 years. Yount v. Salazar, No. CV11-8171-PCT-DGC, 2014 WL 4904423 (D. Ariz. Sept. 30, 2014). The court agreed with the government’s argument that plaintiffs failed to establish both Article III and prudential standing to bring NEPA claims and failed to establish a standing claim within the zone of interests. The economic injury does not fall within NEPA’s zone of interests and plaintiffs did not demonstrate any concrete environmental injury. Without standing, the court could not “conclude that the Secretary abused his discretion or acted arbitrarily, capriciously, or in violation of law when he chose to err on the side of caution in protecting a national treasure—Grand Canyon National Park.”

FIFRA

A federal district court vacated a county ordinance in Hawaii that imposed disclosure obligations regarding the cultivation of genetically modified organism (GMO) crops, concluding that Hawaii state law preempted the ordinance. Syngenta Seeds, Inc. v. County of Kauai, No. 14-00014 BMK, 2014 WL 4215885 (D. Haw. Aug. 25, 2014). However, the court rejected arguments that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Plant Protection Act preempted the ordinance, noting that FIFRA provides for state and local government regulation and the ordinance did not prevent the importing, growing, or exporting of any GMO crop.

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.