On September 2, 2010, EPA published two proposed rules designed to “fix” state air permit programs to ensure that the agencies in charge of issuing permits to construct or modify stationary sources of air emissions – such as power plants – will be able to regulate greenhouse gases through those permits.  This is the latest step in the winding and complicated route EPA has taken in order to regulate greenhouse gas emissions.

·        In an April 2007 opinion in the case Massachusetts v. EPA, the United States Supreme Court decided that greenhouse gases are “air pollutants” as that term is used in the Clean Air Act.  Accordingly, the Supreme Court directed the EPA to determine whether greenhouse gas emissions from new motor vehicles cause or contribute to air pollution.

·        In response to the Supreme Court’s Massachusetts v. EPA opinion, which declared that greenhouse gases are “air pollutants”, former EPA Administrator Stephen Johnson issued a memorandum in December 2008 which clarified that an air pollutant is only “subject to regulation” if the Clean Air Act or EPA regulations require controlling the emissions of that pollutant.  At that time there were no rules in place to regulate greenhouse gases, so the Johnson Memo effectively declared that permitting agencies could not regulate greenhouse gases when issuing permits to construct or modify stationary sources.

·        A year later, again in response to the Supreme Court’s directive in Massachusetts v. EPA that EPA determine whether greenhouse gas emissions from new motor vehicles cause or contribute to air pollution, the current EPA Administrator, Lisa Jackson, signed findings – collectively called the “Endangerment Finding” – that (1) six greenhouse gases threaten public health and welfare, and (2) emissions of those greenhouse gases from new motor vehicles contribute to greenhouse gas pollution which in turn threatens public health and welfare

·        Because EPA found in the “Endangerment Finding” that greenhouse gases threaten public health, EPA became compelled by Clean Air Act Section 202(a) to regulate greenhouse gases for light-duty vehicles.  Accordingly, last spring EPA published its Light-Duty Vehicle Rule (“LDV Rule”), which established federal regulation of greenhouse gases for new motor vehicles.

·        The LDV Rule in turn prompted what EPA considers to be a duty to regulate greenhouse gases when issuing permits to construct or modify stationary sources.  The EPA had previously revisited the Johnson Memo and determined that because greenhouse gases would become “subject to regulation” if and when the LDV Rule became effective, regulating greenhouse gas emissions from new motor vehicles would also render greenhouse gases “subject to regulation” in a way that triggers regulation of greenhouse gases for construction or modification of stationary sources.  Because greenhouse gases from new motor vehicles will be regulated at the beginning of 2011, EPA decided that the agencies which issue air permits to stationary sources must also begin regulating greenhouse gases at the beginning of 2011.

EPA’s decision that air permitting agencies must regulate greenhouse gases has raised several problems, including the problem that many states’ laws (the “State Implementation Plans” or “SIPs”) do not have rules in place that allow the state agencies to regulate greenhouse gases for stationary sources.

That is why EPA has published its proposed “SIP Fix” rule in the September 2, 2010 Federal Register.  The SIP Fix is actually two proposed rules: the first proposed rule lists the states that do not have rules in place which will allow the air permitting agencies to regulate greenhouse gases, and the second proposes that unless those states fix their laws by January 2, 2011, or at least set a deadline for fixing their laws, then EPA will take over their permitting programs for permits to construct or modify stationary sources.

For those states that do not revise their SIPs by January 2, 2011, and, as a result, do not issue construction permits which regulate greenhouse gases, EPA will withhold the federal approval for construction required by the Clean Air Act.

Moreover, for those states which refuse to revise their SIPs or fail to do so before an agreed-upon deadline, EPA will immediately issue a Federal Implementation Plan.  In other words, EPA will override the state permitting program and will assume exclusive authority to issue permits for construction or modification of greenhouse gas sources.

The proposed “SIP Fix” can be accessed by clicking the following links: http://edocket.access.gpo.gov/2010/pdf/2010-21701.pdf (the “SIP Call” identifying the states that do not have rules in place which will allow the air permitting agencies to regulate greenhouse gases) and http://edocket.access.gpo.gov/2010/pdf/2010-21706.pdf (the “Federal Implementation Plan” or “FIP”).

Find out more information by contacting Ivan London.

In 1970, Congress directed EPA to devise national standards limiting various pollutants, such as sulfur dioxide. Seven years later, Congress added the Prevention of Significant Deterioration (“PSD”) program so that air quality would not get worse in places that had already satisfied the minimum standards.

The PSD program essentially provides that no one can construct or modify a major emitting facility – like a power plant – until a “PSD permit” for the facility has been granted. In turn, the permitting agency – which is sometimes a state agency and sometimes the EPA – cannot issue a PSD permit unless it is satisfied that the facility will use the “best available control technology” (“BACT”) to control emissions that can cause air pollution, and until the agency sets limits on those emissions from the facility.

This setup begs the question: Does the PSD program only prohibit construction or modification of a facility without a PSD permit and BACT to control emissions, or does the PSD program also impose ongoing operational requirements to use BACT and limit emissions?

In Sierra Club v. Otter Tail Power Company, No. 09-2862 (8th Cir. Aug. 12, 2010), the power company modified its coal-fired power plant in South Dakota several times in the late 1990s and in 2001 without first getting a PSD permit. In 2008 – seven years after the power company started the most recent modification – Sierra Club sued the power company for violating the Clean Air Act by modifying the power plant and then running it without getting a PSD permit.

The power company countered by arguing that Sierra Club’s lawsuit came too late under federal law. According to the power company, the five-year time limit generally allowed for filing a federal lawsuit – the Clean Air Act does not have its own cutoff for lawsuits by citizen groups – started running as soon as the power company made a modification to its power plant. Sierra Club disagreed, arguing that the PSD program creates an ongoing duty that the power company violated every day that it operated the power plant without getting a PSD permit.

The federal district court judge in South Dakota agreed with the power company. When Sierra Club appealed, the Eighth Circuit Court of Appeals agreed with the district court and held that the PSD program does not impose ongoing operational requirements. According to the court, although the power company was required to apply for a PSD permit so that it could be issued emission limits and determine BACT, “by failing to apply for PSD permits in the first place, it does not continue to do so by failing to comply with a hypothetical set of operational parameters that would have been developed through the permitting process.”

The question whether the PSD program creates an ongoing operational requirement might not be resolved yet. The federal courts are arguably split on the issue, so it might ultimately be headed for the United States Supreme Court for the highest court’s decision.

The Eighth Circuit’s opinion can be found here: http://www.ca8.uscourts.gov/opndir/10/08/092862P.pdf.
Find out more information by contacting Ivan London.

King seeks damages for harm to Alabama waters and property; lost state revenues from taxes and royalties; costs expended by the state for removing or cleaning the contamination; costs expended by the state for providing increased or additional public services to address the oil; and costs associated with the long-term stigma of the oil disaster.

This suit adds to the growing number of lawsuits filed against BP and the other main companies involved in the disaster, now reaching approximately 300.

Read More about the lawsuit:
http://news.findlaw.com/ap/f/1310/08-13-2010/20100813000501_01.html

http://www.courthousenews.com/2010/08/17/29648.htm

Read the complaint filed by Attorney General Troy King:
http://www.courthousenews.com/2010/08/17/AlavBP2.pdf

The decision addresses Citizen United’s 2008 documentary entitled Hillary: The Movie, a critical documentary of Democratic Presidential Primary candidate Senator Hillary Clinton.  Citizen United wanted to release the documentary within 30 days of the election through video-on-demand, but feared recourse from the Federal Election Commission based on the BCRA.  Unable to “resolve the case on narrower ground without chilling political speech,” the Court held that the ban on campaign expenditures by corporations is unconstitutional. To read the full opinion, please visit http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf.

The decision has received both praise and criticism.  While President Obama criticized the decision and promised a “forceful response” from Congress, Senate Minority Leader Mitch McConnell viewed the decision as a victory for free speech, “upon which our democracy depends.”  See Analysis: High court ruling a game-changer for campaign spending, link below. 

Justice Stevens delivered a ninety page dissenting opinion, part of which he read aloud from the bench, stating that this decision is a “radical change in the law.” 

For more information, please see:

Supreme Court reject limits on corporate spending in electoral campaigns, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/01/21/AR2010012104866.html?hpid=topnews.

Analysis: High court ruling a game-changer for campaign spending, available at http://www.cnn.com/2010/POLITICS/01/21/supreme.court.analysis/index.html

For more information, please see: http://www.epa.gov/nsr/documents/20100413fs.pdf
For full text of the rule, please see: http://www.epa.gov/nsr/documents/20100413final.pdf

On December 7, 2009, EPA officially determined that climate change caused by emissions of greenhouse gases threatens public health and the environment.  Since then, EPA received ten petitions – including petitions from the States of Texas and Virginia and the United States Chamber of Commerce – challenging the Endangerment Finding.  One of the contentions by the petitioners was that e-mails among scientists at the University of East Anglia's Climatic Research Unit prove that temperature data and trends supporting the Endangerment Finding were manipulated.

On July 29, 2010, EPA officially rejected the ten challenges by denying the petitions to review the Endangerment Finding.  According to EPA, the East Anglia e-mails are not a “smoking gun” that disproves the science behind the Endangerment Finding.  Further, EPA characterized the challenges as: “inadequate and generally unscientific arguments and evidence that the underlying science supporting the Findings is flawed, misinterpreted or inappropriately applied by EPA.” 

EPA published its rejection in the Federal Register on August 13, 2010: http://edocket.access.gpo.gov/2010/pdf/2010-19153.pdf.

What this means: while EPA’s Endangerment Finding does not itself impose any requirements on industry, the Endangerment Finding is a prerequisite to EPA’s regulation of greenhouse gas emissions for vehicles. Pursuant to the Supreme Court’s Massachusetts v. EPA opinion, the regulation of greenhouse gas emissions for vehicles triggers a duty to also regulate greenhouse gas emissions for industry.  For example, in the Spring of 2010, EPA finalized the “Greenhouse Gas Tailoring Rule”, which specifies that beginning in 2011, industrial projects that will increase greenhouse gas emissions substantially will require an air permit.

Find out more information by contacting Ivan London: ilondon@ryanwhaley.com.

Under CERCLA Section 106, 42 U.S.C. § 9606, when EPA determines that an environmental cleanup is necessary at a contaminated site because “there may be an imminent and substantial endangerment to public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility”, the agency may issue a UAO instructing potentially responsible parties (“PRP”) to clean the site.

CERCLA Section 113 bars PRPs from obtaining immediate review of a UAO. As a result, upon receiving a UAO a PRP can either (1) comply with the order and afterward seek reimbursement from EPA or (2) refuse to comply with the order. If the PRP refuses to comply, then EPA can either sue the PRP to enforce the UAO, or clean the site itself and sue the PRP for cost recovery. Either way, if the court finds that the PRP “willfully” failed to comply with the UAO “without sufficient cause”, then the court “may” impose fines. Moreover, if EPA chooses to clean the site and sues the PRP for cost recovery, the court may award punitive damages equal to treble recovery costs.

According to General Electric, the statutory regime presents a “Hobson’s choice” because the lack of immediate judicial review of the UAO and the threat of severe penalties combine to effectively force the PRP to comply with the UAO even when the order is improper. The D.C. Circuit disagreed. First, the court held that Congress did not violate the Due Process Clause of the Fifth Amendment by enacting the UAO regime because Congress did provide procedural safeguards. To wit, although immediate judicial review of a UAO is precluded by CERCLA, Sections 106 and 107 only permit a judge to impose fines and treble recovery costs if the judge finds that (1) the UAO was proper, (2) the PRP “willfully” failed to comply “without sufficient cause”, and (3) fines and treble damages are appropriate under the circumstances. In other words, the UAO regime is constitutional because a judge is not required to penalize a PRP for refusing to comply with a UAO. Second, the court similarly held that EPA does not violate the Constitution by issuing and enforcing UAOs because only a federal judge – and not EPA – can decide whether and what penalty to impose on the noncompliant PRP. Also, the court pointed to the “extensive” notice and comment provisions in CERCLA Sections 113 and 117 and the National Contingency Plan in support of its holding that EPA’s implementation of the UAO regime affords PRPs sufficient procedural protections.

Additionally, the D.C. Circuit held that both of General Electric’s constitutional claims failed to the extent that the company did not identify a property interest entitling it to due process of law. Specifically, GE based its claims on the argument that a UAO presents a “massive contingent liability” for a PRP which in turn can depress the PRP’s stock price, harm its brand value, and increase its costs of financing. According to the court, the Due Process Clause of the Fifth Amendment does not protect a PRP’s interest in the market’s assessment of the PRP’s stock, brand, and credit worthiness. Stigma alone is insufficient to invoke due process protections. Accordingly, “consequential effects” such as depressed stock prices do not qualify as constitutionally protected property interests.

To access the opinion in General Electric Co. v. Jackson, No. 09-5092 (D.C. Cir. June 29, 2010), please click this link: http://pacer.cadc.uscourts.gov/docs/common/opinions/201006/09-5092-1252407.pdf.

Under the rule as it currently stands, suppliers of fossil fuels or industrial GHGs, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions are required to submit annual reports to EPA. The gases covered by the rule are carbon dioxide (CO₂), methane (CH₄), nitrous oxide (N₂O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), sulfur hexafluoride (SF₆), and other fluorinated gases including nitrogen trifluoride (NF₃) and hydrofluorinated ethers (HFE).

EPA has now proposed to bring facilities in the oil & gas industry within the purview of the rule.  On March 22, 2010, EPA signed a proposed rule for the mandatory reporting of vented and fugitive methane (CH₄) and carbon dioxide (CO₂) emissions from petroleum and natural gas industry facilities emitting 25,000 metric tons or more of carbon dioxide equivalent per year. 

On that same day, EPA signed a proposed rule for the mandatory reporting of GHGs from facilities that inject carbon dioxide underground for the purposes of geologic sequestration or enhanced oil and gas recovery.

The proposed preambles and rules can be found at the following:

1. Subpart W – Petroleum and Natural Gas Systems - http://www.epa.gov/climatechange/emissions/downloads10/Subpart-W_Pre-Publication-Preamble-031210.pdf (preamble) and http://www.epa.gov/climatechange/emissions/downloads10/Subpart-W_Pre-Publication-Rule-031210.pdf (rule) 
2. Subpart RR – Carbon Dioxide Injection and Geologic Sequestration - http://www.epa.gov/climatechange/emissions/downloads10/Subpart-RR_Pre-Publication-Preamble-031810.pdf (preamble) and http://www.epa.gov/climatechange/emissions/downloads10/Subpart-RR_Pre-Publication-Rule-031810.pdf (rule).

The public comment period for these proposed rules will be open for 60 days after publication in the Federal Register. In addition, a public hearing on this proposal will be held on April 19, 2010, in Arlington, VA.

Westlaw Next also offers countless customization options.  For instance, folders can be created to organize research by issue, client, or topic.  Whole documents or snippets of text can be dragged into the folders for quick access in the future.  The new system also allows the researcher to highlight text and attach personal notes to documents.  Further, visual indicators save time by revealing whether the researcher has already viewed the document (eyeglasses icon), saved the document to a folder (folder icon), or added personal notes to the document (note icon). The system also provides a new copy and paste feature that automatically includes the document’s citation, in conformance with official citations, including The Bluebook and ALWD.  Westlaw Next promises to make legal researching faster and more complete so that attorneys can quickly move on to their next challenge of lawyering.

For more information, see www.westlawnext.com.

Without deciding the issue of whether the Plaintiffs’ constitutional rights were violated, the Tenth Circuit held that the Defendant’s actions were protected by the doctrine of “Qualified Immunity.”  “Qualified immunity protects governmental officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Weise v. Casper, 593 F.3d 1163, 1166 (10^th Cir. 2010); see link below.  The Court held that because Plaintiffs could not identify any First Amendment doctrine that prohibits the government from excluding persons from an official speech on private property on the basis of their viewpoint, the Defendant’s actions were protected under qualified immunity.  In other words, the constitutional right claimed by the Plaintiffs was not clearly established at the time of the alleged violation, according to the Court. 

To read the full opinion, please select the following link:

http://www.ck10.uscourts.gov/opinions/09/09-1085.pdf

The decision addresses Citizen United’s 2008 documentary entitled Hillary: The Movie, a critical documentary of Democratic Presidential Primary candidate Senator Hillary Clinton.  Civil United wanted to release the documentary within 30 days of the election through video-on-demand, but feared recourse from the Federal Election Commission based on the BCRA.  Unable to “resolve the case on narrower ground without chilling political speech,” the Court held that the ban on campaign expenditures by corporations is unconstitutional. To read the full opinion, please visit http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf.

The decision has received both praise and criticism.  While President Obama criticized the decision and promised a “forceful response” from Congress, Senate Minority Leader Mitch McConnell viewed the decision as a victory for free speech, “upon which our democracy depends.”  See Analysis: High court ruling a game-changer for campaign spending, link below. 

Justice Stevens delivered a ninety page dissenting opinion, part of which he read aloud from the bench, stating that this decision is a “radical change in the law.” 

For more information, please see:

Supreme Court reject limits on corporate spending in electoral campaigns, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/01/21/AR2010012104866.html?hpid=topnews.

Analysis: High court ruling a game-changer for campaign spending, available at http://www.cnn.com/2010/POLITICS/01/21/supreme.court.analysis/index.html

Earlier this month, the EPA proposed the strictest health standards to date for ground-level ozone aka “smog.” Our summary of the proposed smog standards can be found by clicking here: http://www.ryanwhaley.com/epa-proposes-to-strengthen-8-hour-ozone-standard--more-areas-could-become-nonattainment.

The EPA’s new NO2 standard is a further attempt to address smog, primarily in urban areas. In the new action, the EPA has set the new 1-hour standard for NO2 at a level of 100 parts per billion. In other words, 100 ppb of NO2 is the maximum allowable concentration allowed for any place over the period of 1-hour.

The EPA also is retaining the existing annual average standard of 53 ppb. Lastly, to determine compliance with the new standard, the EPA is establishing new ambient air monitoring networks and reporting requirements for NO2. Specifically, the EPA will be adding “near-road” monitoring networks to revising its “community-wide” monitoring networks.

According to the EPA, only one county in the nation would be in “nonattainment” status for the new 1-hour standard based on emissions from 2006-2008: Cook County, Illinois, which is home to the Chicago metro area.

The EPA has identified two Oklahoma counties of interest:

·    Cherokee County        34 ppb

·    Oklahoma County       53 ppb

Notably, Oklahoma County is currently at the attainment threshold for the annual average NO2 standard of 53 ppb.

The EPA expects to designate areas as “attainment” or “nonattainment” with the new 1-hour standard by January 2012. These designations will be based on the existing community-wide monitoring network. Areas with monitors recording violations of the new standards will be designated “nonattainment.”

Once the expanded network of NO2 monitors is fully deployed and three years of air quality data have been collected, the EPA intends to re-designate areas in 2016 or 2017, as appropriate, based on the air quality data from the new monitoring network.

For more information and to access the new rule, please click on http://www.epa.gov/air/nitrogenoxides/actions.html#jan10.

The Committee’s opinions are only advisory and do not have the same binding force of a ruling from the Florida Supreme Court.  However, as Professor Anita Ramasastry points out, “[the opinion] is interpretive and persuasive, and it may be a sign of how other judicial ethics bodies in other states—or in the federal system—might weigh in on this issue.”[1]  In fact, the Florida Judicial Ethics Advisory Committee opinion follows a similar opinion issued by the South Carolina Advisory Committee on Standards of Judicial Conduct earlier this Fall.  In October, the South Carolina committee decided that while it is ethically permissible for a judge to be friends with law enforcement officers and employees of the magistrate’s office on Facebook, such judges may not discuss anything related to the judge’s position as magistrate. 

Read the opinions here:

http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html

http://www.judicial.state.sc.us/advisoryOpinions/displayadvopin.cfm?advOpinNo=17-2009

For more information on both opinions, see the links below. 

http://www.nytimes.com/2009/12/11/us/11judges.html

http://www.myfoxnepa.com/dpp/news/dpgo-Opinion-Fla-Judges-Lawyers-Facebook-Friends-fc-200912151260894627257

http://www.wistv.com/Global/story.asp?S=11681740

GHGs are the primary contributors to climate change, which results in hotter, longer heat waves that threaten the health of the sick, poor and elderly.  Additionally, the accumulation of CO2 and other GHGs increase ground-level ozone pollution, linked to asthma and other respiratory illnesses, among other threats to human health. 

EPA Administrator Lisa P. Jackson stated: “These long-overdue findings cement 2009’s place in history as the year when the United States Government began addressing the challenge of greenhouse-gas pollution and seizing the opportunity of clean-energy reform. . . This continues our work towards clean energy reform that will cut GHGs and reduce the dependence on foreign oil that threatens our national security and our economy.” See Cathy Milbourn, E.P.A.: Greenhouse Gases Threaten Public Health and the Environment (12/07/2009), see link below.

To learn more, including information from the EPA’s own website, click on the following links:

Cathy Milbourn, EPA: Greenhouse Gases Threaten Public Health and the Environment (12/07/2009): http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/08d11a451131bca585257685005bf252!OpenDocument

Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act (10/07/2009):
http://www.epa.gov/climatechange/endangerment.html

John M. Broder, Greenhouse Gases Imperil Health, EPA Announces (12/7/2009)
http://www.nytimes.com/2009/12/08/science/earth/08epa.html?_r=2&ref=energy-environment

In early 2009, environmental groups sued the EPA for failing to perform its nondiscretionary duty to review and, if appropriate, revise 40 C.F.R. Part 60, Subpart G – “NSPS for Nitric Acid Plants” – as required by the Clean Air Act. The case is styled Environmental Integrity Project et al. v. EPA, No. 09-218 (D.D.C.).

On November 16, 2009, the parties entered into a proposed consent decree that requires the EPA to submit either a proposed rule revising Subpart G or a final determination that no revision is necessary. The proposed rule or determination not to revise must be submitted for publication no later than November 15, 2010, and a final rule or determination not to revise must be submitted for publication no later than November 15, 2011. The EPA Docket is EPA-OGC-2009-0854, and the consent decree can be accessed by clicking here.  The announcement is at 74 Fed. Reg. 58, 954.

In another action, several environmental groups sued EPA in late 2008 alleging that the EPA had failed to promulgate emissions standards for major sources of HAPs from PVC production facilities as required by the Clean Air Act. The case is styled Mossville Environmental Action Now et al. v. EPA, No. 08-1803 (D.D.C.).

On November 16, 2009, the parties entered into a proposed settlement agreement that requires the EPA to submit a proposed rule establishing HAP standards for PVC facilities by October 29, 2010, and a final rule promulgating the standards no later than July 29, 2011. The EPA Docket is EPA-HQ-OGC-2009-0848, and the settlement agreement can be accessed by clicking here.  The announcement is at 74 Fed. Reg. 58,955.

A significant addition to the new rules is a method for calculating the “last day” of a time period.  The new Rule 6(a)(4) differentiates between electronic filing and other means of filing.  For electronic filing, the last day expires at midnight in the court’s time zone.  For all other means of filing, the last day expires when the clerk’s office is scheduled to close. Rule 6(a)(1)(C) still extends the time period for filing when the last day of the period is a weekend or legal holiday, and allows filing until the end of the next day that is not a weekend or a legal holiday.  Moreover, if the Clerk’s office is “inaccessible” on the last day for filing, the deadline is extended until the “first accessible day” that is not a Saturday, Sunday, or legal holiday under Rule 6(a)(3)(B).

The new Rule 6(a)(2) also provides a method of calculating time periods stated in hours.  The rule states that counting for a period stated in hours begins “immediately on the occurrence of the event that triggers the period.”  The rule further mandates that “every hour is counted, including hours during intermediate Saturdays, Sunday, or legal holidays.”  In the event that the last hour falls on a Saturday, Sunday, legal holiday, or on a day the Clerk’s office is inaccessible then the deadline is extended to the same time on the next day that is not a Saturday, Sunday, or legal holiday, or the court is accessible.

The amendments to the current Federal Rules attempt to simplify the attorney’s life with regard to timing and deadlines.  Will the new rules have such an outcome? Only time will tell. 

For a full text of the amended rules, visit www.uscourts.gov/rules.
To view the Power Point Presentation, The Days of Our Circuit Court Lives, click here www.uscourts.gov/rules/presentation.html
To view Time Changes Coming to the Federal Rules, click here http://www.uscourts.gov/ttb/2009-06/article02.cfm. 
See Fed. R. Civ. P. 6 (2009).

The federal Clean Air Act requires the EPA to set and periodically review limitations on emissions of hazardous air pollutants (“HAPs”) for several sources, and the EPA’s limitations for coal- and oil-fired power plants were due in 2002.

Rather than set limitations for the power plants, EPA issued the Clean Air Mercury Rule (“CAMR”). But a federal court struck down CAMR in an early 2008 opinion titled New Jersey v. EPA, 937 F.2d 649 (D.C. Cir. 2008), which can be found here: http://pacer.cadc.uscourts.gov/docs/common/opinions/200802/05-1097a.pdf.

Subsequently, several medical and environmental groups sued the EPA last winter for its failure to set emissions limitations for coal- and oil-fired power plants. That case is called American Nurses Association v. Jackson, No. 08-2198 (D.D.C.).

As a result, last Thursday the EPA informed the federal court hearing the case that it had reached a settlement with the plaintiffs, and that it would sign a “notice of proposed rulemaking” by March 16, 2011, and a “notice of final rulemaking” for publication no later than November 16, 2011.

Once the “notice of proposed rulemaking” is published, the public will have an opportunity to comment on the proposed limitations on emissions of HAPs by coal- and oil-fired power plants. Afterward, the EPA will consider the public comments and issue the final rule.

The Consent Decree can be found by clicking here.

In Comer v. Murphy Oil USA , the United States Court of Appeals for the Fifth Circuit overturned a lower court decision that dismissed a punitive class action brought by several plaintiffs who alleged they suffered harm from the defendants whose conduct of operating energy, fossil fuels and chemical industries that contributed to “global warming” climate change, which then increase global surface temperatures causing a rise in sea levels and “strengthening the ferocity” of hurricane Katrina.  The plaintiffs’ claims were based on theories of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. 

The defendants moved to dismiss the plaintiffs’ claims asserting the plaintiffs’ lacked standing as their claims presented a nonjusticiable political question.  Applying Mississippi constitutional law, the lower district court dismissed the plaintiffs’ claims.  The Fifth Circuit Court of appeals disagreed.  The Fifth Circuit held that under Mississippi law the plaintiffs’ claims for nuisance, trespass and negligence did not present a political question.  However, the court dismissed the plaintiffs remaining claims for unjust enrichment, fraudulent misrepresentation and civil conspiracy for failing the prudential standing doctrine.

The district court had ruled in favor of the defendants who argued that the plaintiffs had failed to show that their alleged harms were traceable to the defendants’ actions, and, therefore, that the plaintiffs’ theory was too attenuated.  The Fifth Circuit Court of Appeals disagreed stating that such an argument essentially called upon the court to evaluate the merits of the plaintiffs’ causes of action, which is misplaced at the threshold standing phase of the litigation.

Hence, the Fifth Circuit considered the Plaintiffs’ allegations (that the defendants’ actions had caused the global warming and strengthening of the hurricane) as if they were true.  Since the court considered the plaintiffs’ claims as true, it found their claims to be redressable through monetary damages.  The court went on to explain that as plead under Mississippi law the defendants’ willful, unlawful, unreasonable use of their property to emit greenhouse gases constituted a private nuisance that inflicted injury upon the plaintiffs’ land by causing both the rising sea levels and strengthening of the hurricane. 

However, the Fifth Circuit Court of Appeals dismissed the plaintiffs’ claims for unjust enrichment, fraudulent misrepresentation and civil conspiracy, holding that these claims failed the prudential standing doctrine because the plaintiffs’ had failed to identify a particularized injury that must affect the plaintiff in a personal and individualized way.

In Village of Kivalina v. ExxonMobil Corp. , The United States District Court for the Northern District of California dismissed the plaintiffs’ federal common law nuisance claims.  In this case, the Native American plaintiffs and their village, which is a self-governing federally recognized tribe, sued twenty-four corporate defendants.  The plaintiffs alleged that the defendants destroyed their native island habitat by contributing to “global warming,” which caused a rise in sea levels and diminished the amount of seasonal sea ice that packs along the island surf leaving the island’s beaches exposed to excessive erosion, which made the small island even smaller and essentially uninhabitable. 

The district court dismissed the plaintiffs’ nuisance claims for lack of standing as a nonjusticiable political question.  In doing so, the court held that the plaintiffs’ nuisance claims were void of any judicially discoverable and manageable standards since resolution of a nuisance claim is not based on whether the plaintiff finds the invasion unreasonable, but rather, whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.  

The court said that here the plaintiffs were asking the factfinder to consider the utility of the defendants’ operations against their means by weighing the energy-producing alternatives that were available in the past while considering their respective impact on far ranging issues such as their reliability as an energy source, safety considerations, and the impact of the different alternatives on consumers and business at every level.  The court went on to explain that the factfinder would then have to weigh the benefits derived from those choices against the risk that increasing greenhouse gases would in turn increase the rick of causing flooding along the coast of a remote Alaskan locale.  The count said that the plaintiffs practically ignored this aspect of their claim and otherwise failed to articulate any particular judicially discoverable and manageable standards that could guide a factfinder in rendering a principled, rational and reasoned decision.

The plaintiffs attempted to argue that since they had not sought any injunctive relief that there was no need for the court to determine retroactively what emission limits should have been imposed upon the defendants’ operations.  However, the court found that the plaintiffs’ nuisance claims were problematic in this regard because they called for an initial policy determination that required the court to make a policy judgment of a legislative nature, rather than resolving the dispute through purely legal and factual analysis.  The court said that resolution of the plaintiffs’ nuisance claims required balancing the social utility of the defendants’ conduct with the harm it inflicts.  The court went on to explain that such a process necessarily involves a determination of what would have been an acceptable limit on the level of greenhouse gases emitted by defendants.

In the same vein, the court found that the plaintiffs’ arguments also failed to deal with the fact that resolution of their nuisance claims required the judiciary to make a policy decision about who should bear the costs of global warming.  While the plaintiffs alleged that the defendants caused a substantial portion of greenhouse gas emissions, the plaintiffs also acknowledged that virtually everyone on Earth is responsible on some level for contributing to such emissions.  The court found that plaintiffs, by bringing this lawsuit, had in effect asked the court to make a political judgment that the two dozen or so defendants named in the action should be the only one to bear the costs of contributing to global warming.  Thus, the court held that the allocation of fault and the cost of global warming is a matter that should be left for the executive or legislative branches of government in the first instance.

To see Comer v. Murphy Oil USA click here.

To see Village of Kivalina v. ExxonMobil Corp. click here.

Noting that the median timeframe for beginning a cleanup has increased from 197 days in the early 1990s to 305 days in the late 2000s, EPA enacted the “Interim Policy” which pushes regional superfund directors to promptly conclude remedial design/remedial action (“RD/RA”) negotiations.

Most important, in the “Interim Policy” EPA instructs the regional directors to more aggressively utilize Unilateral Administrative Orders (UAOs). Section 106 of CERCLA authorizes EPA to use UAOs as a means of initiating cleanup when viable private parties exist but cannot reach a timely settlement with EPA to begin remedial work.

The “Interim Policy” encourages the use of UAOs “as a key component for expediting the RD/RA negotiation process.” Arguably, though, once EPA issues a UAO, the private parties subject to the order lose their bargaining power, effectively ending negotiations and resolving any disputes in favor of EPA.

The “Interim Policy” does not mention the recent U.S. Supreme Court case Burlington Northern & Santa Fe Railway Co. v. United States. That opinion arguably gave PRPs more bargaining power by ruling that liability under CERCLA Section 107 is “divisible” where the record reasonably supports the apportionment of liability.

The new “Interim Policy” might be EPA’s reaction to the empowerment of PRPs to avoid liability or prolong negotiations to assess the “divisibility” of liability as provided by Burlington Northern.

Please read EPA’s “Interim Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations” at EPA’s website: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/rdra-neg-timeline-mem.pdf.

Additionally, you can find the U.S. Supreme Court’s Burlington Northern opinion at http://www.supremecourtus.gov/opinions/08pdf/07-1601.pdf, and our discussion of the opinion at http://www.ryanwhaley.com/supreme-court-rules-on-cercla-arranger-liability-and-divisibility.

On September 29, 2009, the EPA announced its own principles for reform, intended to direct Congress in drafting the new legislation.  One such principle includes requiring chemical manufacturers to submit to the EPA the necessary information to conclude that chemicals are safe and do not threaten public health or the environment. Also, the announcement stated that “the EPA should have the authority to take risk management actions when chemicals do not meet safety standards, with flexibility to take into account sensitive subpopulations, costs, social benefits, equity, and other relevant considerations.” Further, the EPA stressed the need to analyze and act on priority chemicals in a timely manner.  Finally, the EPA emphasized increasing “green chemistry,” the production of chemicals that are less toxic, use less energy, or are otherwise advantageous to the environment. See the EPA’s website for more driving principles and fuller explanations: http://www.epa.gov/oppt/existingchemicals/pubs/principles.html.

Rationale:  In analyzing § 101(5)(B) of the Bankruptcy Code, the court stated that in situations where the equitable remedy is unobtainable, such an equitable claim can be reduced to a money judgment if the claim “gives rise to a right to payment.”  Thereafter, the claim can be discharged in bankruptcy.  Distinguishing between a mortgage, which gives rise to a right of payment in the event of default, and an injunction under RCRA, the court reasoned that because RCRA “does not authorize any form of monetary relief,” an injunction under RCRA does not give rise to a right to payment, and merely entitles the government to order clean up at the defendant’s expense.  Defendant argued that the court should distinguish between types of injunctions, such as those that can be complied with internally versus those that require an independent contractor for compliance, in determining whether or not the claim is dischargeable.  The court rejected this argument, holding that such distinctions are arbitrary and would encourage polluters to hire third parties to clean up, even if fully capable of doing so internally.

Case:  United States v. Apex Oil Co., Inc., 579 F.3d 734 (7th Cir. 2009).

EPA will add the new regulations to the existing New Source Review/Prevention of Significant Deterioration construction permit and Title V operating permit programs under the Clean Air Act.

According to EPA, the new regulatory program will require subject facilities to obtain permits that would demonstrate they are using the best practices and technologies to minimize GHG emissions. EPA currently plans to develop sector- and source-specific guidance for making Best Available Control Technology determinations.

Please visit the EPA factsheet concerning this new regulatory program at http://www.epa.gov/nsr/fs20090930action.html. EPA will accept comment on this proposal for 60 days after publication in the Federal Register.

The plaintiffs in Connecticut v. American Electric Power Company seek to force the defendants to cap and reduce their carbon dioxide emissions in view of the “clear scientific consensus” on global warming. Rather than sue pursuant to the Clean Air Act, however, the plaintiffs have alleged claims under the federal common law nuisance for injuries attributable to global warming such as reduction in mountain snowpack and its concomitant flooding, increased illness from heat waves and smog, prolonged droughts, flooding, and wildfires, and beach erosion and sea level rise.

The Second Circuit’s opinion did not assert that the plaintiffs will succeed in imposing caps on carbon dioxide emissions, but is very important due to the likelihood that it will prompt a rush of litigation by states and municipalities as well as private interest groups against a broad array of companies.

The ruling – especially when combined with a recent opinion by a federal court that ordered the Tennessee Valley Authority utilize specific pollution controls based on a state nuisance law claim, North Carolina v. TVA, 593 F.Supp.2d 812 (W.D.N.C. 2009) – leaves open a nuisance cause of action against any industrial facility that emits significant quantities of greenhouse gases, and that risk will survive unless and until Congress or the Environmental Protection Agency more pervasively regulate carbon dioxide emissions. For our updates on recent developments in carbon dioxide regulation, please see http://www.ryanwhaley.com/epa-will-begin-monitoring-greenhouse-gas-emissions-in-20101 and http://www.ryanwhaley.com/epa-to-regulate-greenhouse-gasses.

Perhaps most important, the opinion will help future nuisance cases survive dismissal by imposing a low bar for proving the link between CO2 emissions and the claimed injuries: “[Causation] is an issue best left to the rigors of evidentiary proof at a future stage of the proceedings, rather than dispensed with as a threshold question of constitutional standing.”

The Connecticut opinion reveals that until there is a national carbon dioxide emissions policy public and private parties will be able to use the federal courts to seek incremental relief by imposing carbon dioxide caps on individual facilities. The Second Circuit stated:

Nowhere in their complaints do Plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change . . . . A decision by a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies for domestic conduct, does not establish a national or international emissions policy (assuming that emissions caps are even put into place).

The Connecticut opinion should be studied closely by plant managers, environmental managers, and counsel for any facility that produces significant quantities of greenhouse gases, so that going forward members of industry can (1) plan for potential litigation and (2) devise an approach for addressing whether comprehensive federal regulation of greenhouse gases will be preferred over piecemeal litigation.

The Second Circuit’s opinion in Connecticut v. American Electric Power Co., No. 05-5104 (2d Cir. Sept. 21, 2009) can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/f7872f7d-579c-48ea-8483-e14964926376/28/doc/05-5104-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f7872f7d-579c-48ea-8483-e14964926376/28/hilite/.

Starting January 1, 2010, EPA will require suppliers of fossil fuels or industrial greenhouse gases (“GHG”), manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions to submit annual reports to EPA.

The gases covered by the proposed rule are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), sulfur hexafluoride (SF6), and other fluorinated gases including nitrogen trifluoride (NF3) and hydrofluorinated ethers (HFE).

EPA’s goal is to account for approximately 85 percent of the nation’s GHG emissions, and the new standard will apply to roughly 10,000 facilities. As a result, the new rule specifically covers many industries, including:

·    Portland cement manufacturing plants

·    Carbon black manufacturing facilities

·    Natural gas distribution facilities

·    Lime and nitric acid production facilities

·    Fossil-fuel fired electric generating units

·    Electroplating, plating, anodizing, and coloring facilities

·    Feedlots, hog and pig farms, and chicken and turkey production

·    Pulp and paper mills and manufacturers of lumber and wood products

·    Chemical manufacturers

·    Petroleum refineries and manufacturers of coal products

·    Manufacturers of motor vehicle parts

·    Lead smelting and refining facilities

·    Municipal solid waste landfills

The first annual reports for the largest emitting facilities, covering calendar year 2010, will be submitted to EPA in 2011.

According to EPA, the rule is intended to provide a better understanding of the sources of GHG emissions, so as to help EPA develop policies and programs to reduce emissions.  EPA provides more information and the text of the rule at its website: http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.

How the removal of the SSM exemption under Section 112 plays out has yet to be decided. The vacatur has not yet taken effect, and will not until the federal court issues a mandate. But recent events indicate that changes are on their way. On July 22, 2009, EPA issued guidance explaining how the court’s decision will affect specific source categories. A link to the EPA Guidance Document is provided on this page.

On July 30, 2009, the federal court denied the petitions for rehearing. In response, EPA and intervenors filed motions asking the court to stay its mandate. The responses to the motions to stay the mandate are due August 20, 2009.

Rationale:  The court found the legislative intent behind the single proceeding process was to alleviate the confusion created by the prior regulatory maze and to provide a straight forward, public-friendly forum for the discussion of the relevant economic and environmental issues. 

Consequences: Effective June 2009, the Utility Act and CECPN law requires all APSC proceedings concerning generating plants and transmission lines to be resolved in a single proceeding. SWEPCO may reapply for a CECPN in accordance with the holding of this case.

Hempstead County Hunting Club, Inc. v. Ark. Pub. Serv. Comm’n, 2009 Ark. App. 511 (2009).

Rationale: In Burlington, the Supreme Court held that “mere knowledge that spills and leaks continued to occur” is an insufficient basis for arranger liability. The PRP alleged that this decision “narrowed the scope of arranger liability under 42 U.S.C. § 9607(a)(3)” sufficiently to dismiss the complaint. In effect, the PRP argued that the plaintiff must allege facts indicating that the PRP overtly arranged for other parties to dispose of hazardous waste. The trial court refused to limit arranger liability to that extreme. Rather, the court held: To the extent that the sewer system, which discharged untreated sewage into a CERCLA site, was owned and operated by the municipality, the PRP’s disposal of hazardous substances via the sewer would fall well within the confines of arranger liability – even after Burlington.

Consequences: Pursuant to recent Supreme Court case law, a plaintiff must allege “a plausible entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). This “plausibility standard” requires “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Thus, to survive a motion to dismiss, the complaint must contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

If the trial court had upheld the PRP’s argument, then it would have the effect of forcing plaintiffs to allege facts – prior to discovery – effectively proving that an off-site PRP overtly entered into a transaction for the sole purpose of transporting and discarding a hazardous substance that ended up at the remediation site. The higher pre-discovery pleading standard would likely curtail CERCLA “arranger” suits because plaintiffs rarely have access to a PRP’s private business contracts and communications when filing an action for contribution.

Example: Company incurs remediation costs for a site clean-up. Company believes that an off-site party has contributed to the environmental harm, but the off-site party is not an owner/operator of the remediation site under CERCLA § 9607(a)(1) or (2). Company’s contribution claim can likely survive dismissal by alleging that the off-site party handled hazardous wastes, and that the off-site was connected to the remediation site by sewer lines.

Case: Frontier Communications Corp. v. Barrett Paving Materials, Inc., No. 1:07-CV-113, 2009 WL 1941920 (D. Me. July 7, 2009)

Rationale:  Citizens are required to give a 60-day notice of intent to sue before filing a CWA citizen suit.  Separate provisions in the CWA bar citizen suits when EPA or a state agency has commenced and is diligently prosecuting an enforcement action against a polluter.  The bar contains exceptions language, but defendants typically argue that language only lifts the bar with regard to enforcement by EPA.  The Eleventh Circuit rejected this contention, ruling that the exceptions language applies to both EPA and state enforcement actions based on its plain and ordinary meaning, and that the citizen suit bar is lifted when notice of intent to sue is given before either an EPA or state enforcement action (and the citizen suit is then timely filed).  The Court also found that its interpretation was consistent with Congress's intent to avoid placing obstacles in the way of citizen suits and maximizing the lmiited resources of EPA, states, and citizens as enforcers and guardians of the Nation's waterways. 

Consequences:  This ruling will likely encourage more CWA citizen suits because defendants will not be able to block these suits  by entering into consent orders with state regulators to resolve the violations which led to the citizens' notice of intent to sue.  

Example:  Company fails to comply with stormwater permit and the muddy run-off impacts landowners downstream.  Landowners properly issue 60-day notice of intent to sue before any state enforcement action is taken.  Landowners can maintain suit even if state then takes enforcement action (provided landowners sue within 120 days of notice of intent to sue).

Case:  Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3rd 986 (11th Cir. 2008) (rehearing en banc denied). 

The new rule modifies the Form A eligibility provided by 40 C.F.R. § 372.27:
• Beginning in reporting year 2008, Form A may no longer be used for PBT chemicals.
• For non-PBT chemicals, the rule reinstates the 500-pound annual reporting amount (the total of releases and other waste management) and 1,000,000 pounds “manufactured, processed or otherwise used” Form A eligibility threshold that were in effect before December 22, 2006.

In other words, the new rule returns the eligibility for use of the Form A (in lieu of the more detailed Form R) to the thresholds and eligibility requirements that were in effect prior to the 2006 Toxics Release Inventory Burden Reduction Rule.

Because the new rule was enacted make the regulations consonant with a Congressional legislative mandate, notice and comment rulemaking is unnecessary, and the rule became effective immediately upon publication to the Federal Register.

The new rule can be accessed by clicking: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2009_register&docid=fr27ap09-10.

In Burlington Northern & Santa Fe Railway Co. v. United States and Shell Oil Co. v. United States, an agricultural chemical distributor expanded its operations onto a parcel owned by Burlington Northern. As part of its business, the distributor purchased and stored pesticides from Shell. Over time, many of the chemicals spilled during deliveries. EPA and the California state environmental agency discovered the contamination, and by 1998 had spent over $8m to clean up the site. When the agencies sued Burlington Northern and Shell for response costs (the distributor had gone bankrupt), the district court found them liable. Specifically, Burlington Northern was liable as an owner of a portion of the overall site, and Shell was liable as an “arranger” for its role in delivering pesticides to the site.

Having found liability and legal divisibility of the harms, the district court then ruled that the portions that each defendant contributed to the overall harm at the site were divisible in fact. Based on the percentage of surface area at the site owned by Burlington Northern, the duration of its ownership vis-à-vis the contamination, and the contribution of the chemicals spilled on Burlington Northern’s parcel to the overall harm, along with a factor accounting for math error, the court affixed 9% of the liability for the total cleanup costs to Burlington Northern. Based on an estimate of contribution to the overall harms from spills of Shell’s pesticides on delivery, the court affixed 6% of the liability for the total cleanup costs to Shell. While the Ninth Circuit Court of Appeals upheld the ruling on liability, it ruled that the evidence in the record did not support the divisibility in fact of the cleanup costs.

While the Supreme Court agreed with the trial court with respect to Burlington Northern’s liability under Section 107, it applied the ordinary meaning of the word “arrange” – a term that CERCLA does not define – to hold that “arranger liability” requires an element of intent. Although knowledge of leaks and spills may be used as evidence that a PRP intended to dispose of hazardous wastes, knowledge alone does not satisfy the intent element required for “arranger liability.”

In the other portion of the opinion, the Supreme Court affirmed the growing trend among the Courts of Appeals in favor of dividing Section 107 liability “when two or more persons acting independently caus[e] a distinct or single harm for which there is a reasonable basis for division . . . .” In this case, although the evidence in the record did not yield exact determinations of apportioned harm, it did provide a reasonable basis for affixing 9% of the cleanup costs on Burlington Northern. So the Supreme Court reversed the Ninth Circuit and reinstated the district court’s findings of fact as to Burlington Northern’s proper portion of the cleanup costs. The Supreme Court was careful to note that equitable considerations do not play a role in divisibility, as they only arise under Section 113(f) contribution claims, not Section 107 claims.