All posts by Shell Bleiweiss
EPA has revised the way that it treats tenants of contaminated properties as
Bona Fide Prospective Purchasers (BFPPs) under CERCLA. CERCLA does not
require that tenants conduct their own All Appropriate Inquiry (AAI) when
leasing a property; they can benefit from BFPP status if the owner properly
conducts an AAI.
Previously, however, if an owner lost its BFPP status, then the tenant would
also lose that protection, and might be subject to CERCLA liability.
However, pursuant to the new guidance, EPA will use its enforcement
discretion on a case by case basis to determine whether or not the tenant
should remain a BFPP.
Under CERCLA’s “prohibited affiliation” provision, a lease might preclude a
tenant from attaining BFPP status. However, EPA has stated that it will use
its enforcement discretion to determine a tenant’s BFPP status on a case by
The new guidance applies to leases executed after January 11, 2002, provided
that the tenant satisfies other BFPP provisions.
Shell has been retained as an expert witness on a land contamination case under CERCLA. It is a legal malpractice case against a big Milwaukee, WI firm, concerning a corporate acquisition and CERCLA cleanup. Shell wrote expert opinions in 2010 and 2011, and testified in 2012.
A recent article by Shell J. Bleiweiss and Jamie Davidson discusses the tension between state guns-at-work laws and the federal OSH Act. State laws prohibiting employers from banning otherwise legal firearms in employee vehicles in company parking lots have been upheld as valid and enforceable. OSHA regulations generally do not apply to firearms in the workplace, however, in the odd workplace where firearms are a “recognized hazard” the OSHA general duty clause might apply. The full article can be read and downloaded here: Guns At Work: A Question Of State Law More Than OSHA Law For Most Industries.
On March 21, 2012, the Supreme Court found in Sackett v. EPA that the Sackett family has the right to a pre-enforcement review of an EPA compliance order under the Clean Water Act. The Court found that the EPA’s compliance order constituted a final agency action because the order “mark[ed] the ‘consummation’ of the agency’s decisionmaking process.” The Court rejected the EPA’s argument that the CWA impliedly precludes judicial review. The Court stated that the Administrative Procedure Act carries a presumption of judicial review of agency actions, which “is a repudiation of the principle that efficiency of regulation conquers all.”
Sackett v. EPA presents the issue of whether pre-enforcement review is available for EPA administrative orders other than CERCLA orders. The other major federal environmental statutes don’t have the express bar of pre-enforcement review that CERCLA has. Sackett is currently on the Supreme Court’s 2011-12 docket and will be the first time the Supreme Court has addressed this issue. More to come.
On June 20, 2011, the U.S. Supreme Court held that the Clean Air Act displaces any federal common-law causes of action that would be intended to abate emissions of carbon dioxide from fossil-fuel fired power plants. In this case, American Elec. Power Co. v. Connecticut, the Court overturned a Second Circuit decision. Citing Mobil Oil Corp v. Higginbotham, the Court explained that the test for determining whether legislation displaces federal common law is simply whether a statute “speak[s] directly to [the] question” at hand. Massachusetts v. EPA confirmed that carbon dioxide is an air pollutant, as defined under the Clean Air Act. The statute therefore authorizes the EPA Administrator to set emissions standards for power plants and allows states and private parties to petition the EPA to set emission standards. The EPA is currently in the process of such a rulemaking and plaintiffs in this case can seek judicial review if they disagree with the result of that process. However, the Court left for consideration on remand whether state nuisance law claims would remain available because the Second Circuit had not reached those claims by plaintiffs.
Some years ago in an article in the Harvard Environmental Law Review, Shell Bleiweiss addressed this issue comprehensively. Environmental Regulation and the Federal Common Law of Nuisance: A Proposed Standard of Preemption, 7 Harv. Envtl. L. Rev. 41 (1983).
On May 3, 2011, the Seventh Circuit Court of Appeals found in favor of plaintiffs in Adkins v. Vim Recycling, Inc., a case under RCRA that considered whether a narrower state agency lawsuit could preclude a broader citizen suit and whether plaintiffs could maintain a citizen suit in federal court once a state agency filed a later suit in state court. 2011 WL 1642860 (2011). The Seventh Circuit reversed the dismissal of the citizen suit by the United States District Court for the Northern District of Indiana. Id.
The Indiana Department of Environmental Management (IDEM) filed suit in state court against Vim Recycling on October 3, 2008 for violations of an Agreed Order requiring Vim to remove “C” grade waste from its facility. Id. at 3. Plaintiffs attempted to intervene and expand the scope of this case. Id. at 3. When the state court refused to expand the scope, the plaintiffs withdrew all claims beyond the scope of the IDEM suit and filed suit in federal court on October 27, 2009. Id. at 4. IDEM continued to find violations and filed an additional suit against VIM in state court on December 21, 2009. Id. at 5. Consequently, VIM moved to dismiss the citizen suit in federal court. Id. at 5.
The Seventh Circuit first held that the district court and the parties had incorrectly treated the dismissal as a question of subject matter jurisdiction. Id. at 6. The issue of whether a RCRA citizen suit should be dismissed or precluded because of a state agency’s enforcement action is dealt with by statutory language that bars citizen suits in certain circumstances. The court explained that to treat this statutory bar as “jurisdictional” – as a matter of whether the court has the authority to adjudicate – would alter “‘the normal operation of our adversarial system.'” Id. at 6. In other words, the statutory language addresses the situations in which a citizen suit is barred, and that is a separate issue from whether a court has the authority to decide a case that interprets that language.
In treating the issue as a Rule 12(b)(6) motion to dismiss, the court found that the plain language of 42 U.S.C. § 6972(b)(1)(B) could not be used to dismiss the plaintiffs’ suit. Id. at 7. This subsection prohibits the commencement of a citizen suit if a state or federal agency “has commenced and is diligently prosecuting a civil or criminal action.” However, it does not deal with citizen suits that were filed before the agency action. Id. at 8. Therefore, IDEM’s second suit against VIM could not be used to dismiss the plaintiffs’ citizen suit.
In regards to the first IDEM suit that had been filed before the citizen suit, the court looked to 42 U.S.C. § 6972(b)(1)(B), which states that a citizen suit is barred when a prior government suit requires “compliance with such permit, standard, regulation, condition, requirement, prohibition, or order.” The court interpreted this to mean that if the citizen suit and the government suit sought to enforce compliance with the same requirements, then the citizen suit would be barred. Id. at 9. However, in this case, the plaintiffs pursued relief for RCRA violations relating to “A,” “B,” “C,” and “D,” grade waste and uncategorized waste. Id. at 4. The court found these to be beyond the scope of the first IDEM suit that dealt only with “C” grade waste. Id. at 9. Among several reasons for recognizing the different grades of waste as an indication of the broader scope of the plaintiffs’ suit, the court explains that IDEM’s first suit against VIM brought claims under Indiana state law regarding “C” grade waste, whereas the plaintiffs brought suit under RCRA. Id. at 10. The court explained that these two suits “simply cannot overlap with respect to “A” grade waste.” Id. at 10. Therefore, the court held that “to the extent that the plaintiffs’ claims do not overlap with those asserted in the first IDEM suit, the plaintiffs’ claims are not precluded.” Id. at 9.
The court also found that the Colorado River and Burford abstentions were not applicable here. Id. at 10.
Rapanos, the landmark Supreme Court case addressing wetlands jurisdiction under the Clean Water Act, has been impacting NPDES permitting jurisdiction as well as wetlands jurisdiction. In this well written article, the authors discuss this trend, what the regulated community is doing, and what Congress may do in response.
A. The Science Behind Climate Change
Lawmakers and scientists sharply contest the issue of climate change. Arguably, the need for climate change laws extends beyond the controversy of whether the climate is changing and what potential affect that might have on the environment. These laws are also intended to mitigate damage from pollution, encourage sustainability, and prevent visible environmental degradation. However, with various economic and political issues at stake, lawmakers must surmount opposition in order to pass laws that ease the effects of climate change on the environment. Science is the most powerful method that convinces leaders and their constituents that binding laws designed to abate climate change are necessary. In 2009, the application of science deeply affected the current state of climate change laws, both in the United States and internationally.
In the United States, the biggest news from the Environmental Protection Agency regarding its interpretation of scientific evidence was its decision to regulate carbon dioxide as a greenhouse gas. In April, the E.P.A. reversed its previous position that it could not regulate carbon dioxide because the gas was not a pollutant. The E.P.A. announced the policy change following the 2007 mandate from the Supreme Court requiring it to again review scientific evidence on climate change. The agency makes its scientific determinations from the assessments of United States agencies, as well as the Intergovernmental Panel on Climate Change. The I.P.C.C.’s most recent comprehensive scientific release, 2007’s Fourth Assessment Report, observed that, “Warming of the climate is unequivocal,” and is very likely due to an increase in greenhouse gases, which include carbon dioxide.
In November, the public questioned the integrity of climate change science in general when the computer systems at the University of East Anglia’s Climatic Research Unit were hacked. The hackers posted e-mails sent between various British climatologists online. Global warming skeptics quickly asserted that the released statements could be construed to imply that the scientists falsified or skewed data to overstate the urgency of their findings. Several of the authors confirmed they wrote the e-mails but defended that their data were properly attained and proved that the climate is warming. As a result of these events, climate skeptics were able to cast some doubt on the veracity of climate change science upon which lawmakers rely.
Shortly after the e-mail scandal subsided, the leaders of many nations met in Copenhagen in an attempt to reach an international agreement to manage climate change issues. The summit was part of the United Nations Framework Convention on Climate Change, the treaty designed to consider how to reduce and cope with its effects. The U.N.F.C.C.C., similarly to the E.P.A., relies on the findings of the I.P.C.C. that warming of the climate is unequivocal, and due to greenhouse gases. However, the representatives in Copenhagen were equally concerned with politics as they were with scientific evidence. The interests of the nations in attendance were highly divided. The largest contributors to greenhouse gas emissions were prepared to make reductions immediately, but only with the same commitment from the global community. In particular, the United States wanted China to agree to international monitoring of its emissions. Meanwhile, emerging developing countries, such as China and India, were hesitant to stifle their own economies to resolve a problem they did not create. This deep divide made it impossible for nations to create a binding world treaty. Instead, the summit ended with the Copenhagen Accord, a document urging nations to achieve certain emission targets. Under the accord, the United States promised to raise billions of dollars to aid other countries, while also agreeing to lower emissions here. However, with the targets not yet incorporated into the accord and the limited enforceability of the international agreement, the Copenhagen Accord is largely considered ineffective by environmentalists.
Politics aside, the science of climate change is carefully monitored in the international arena. The United Nations maintains the annual Climate Change Science Compendium, most recently published in October, 2009. The compendium is useful for providing background information on climate change as well as recent updates. Some of the current information includes an analysis of extreme weather events, a study involving components of the earth’s system that are vulnerable to more abrupt climate change, and new suggestions for interventions that government agencies could use to facilitate ecosystem adaptation to climate change.
In 2010, the state of knowledge of climate change science is bound to evolve. The I.P.C.C. has already begun preparations for its Fifth Assessment Report, scheduled to be completed in 2014. The E.P.A. and industries affected by new United States carbon dioxide regulations will continue to monitor exactly how the gases effect climate change and how new technologies can help curb emissions. Most importantly, lawmakers will continue to struggle with the conflicts between scientific evidence and politics in order to make nationally and internationally binding laws.