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June 2011

Supreme Court – CAA preempts federal common law

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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).

Timing of Environmental Citizen Suits – New Ruling

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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.