BRIEFING IN COMPLEX CASES: The More You Have To Say, The Fewer Words You May Have To Say It

Posted on January 30, 2012 by Andrea Field

On August 8, 2011, EPA published its very lengthy Cross-State Air Pollution Rule (CSAPR).  An indication of CSAPR’s complexity -- and its unpopularity with those affected by it -- is that its promulgation prompted states, cities, labor unions, industry trade associations, and individual industry sources to submit to EPA 62 requests for administrative reconsideration and to file 45 petitions for judicial review of the rule.  Because CSAPR is a Clean Air Act rule of “nationwide scope and effect,” under § 307(b), the 45 petitions challenging that rule had to be filed in the D.C. Circuit. 

The focus of my article today is not the content of CSAPR (though there is much in the final rule that is a cause for concern), but rather on some of the procedural difficulties faced by large groups of appellants challenging a complex EPA rule in the D.C. Circuit.  In particular, my focus is on the restrictions placed by the court on the number and length of briefs that can be filed in a case that involves 45 aligned petitioners who say they have over 55 substantive issues that they want to raise in their principal briefs. 

Under Rule 28.1(e) of the Federal Rules of Appellate Procedure (FRAP), an “appellant’s principal brief . . . is acceptable if . . . it contains no more than 14,000 words . . ..”  In a case involving only one appellant challenging a simple agency rule, the D.C. Circuit has appropriately interpreted FRAP 28.1(e) as allowing that one appellant to file a principal brief not to exceed 14,000 words.  But what happens when dozens of aligned petitioners challenge an extremely lengthy and complex agency rule?  And what happens when -- fearing the “speak now or forever hold your peace” aspects of Clean Air Act § 307(b) -- those numerous aligned appellants must address scores of different aspects of the final rule? 

In Alabama Power Co. v. Costle, the first complex Clean Air Act case brought in the D.C. Circuit, the court came up with an innovative -- and effective -- way of allowing the aligned petitioners to present their concerns.  In that case, the court’s Chief Staff Counsel oversaw a process that allowed the aligned petitioners to file a joint statement of the case and a reasonable number of separate, reasonable-length issue briefs.  (In an interview with Business Week during the litigation, the three judges hearing that case commented favorably upon the approach that their Chief Staff Counsel had developed.) 
In the decades following the Alabama Power litigation, however -- as the number and complexity of EPA rules has grown, spawning more lawsuits by increasingly larger numbers of appellants -- the D.C. Circuit has taken steps that have reduced substantially the number and length of briefs that parties can file.  Typically, motions panels on the court direct aligned petitioners, even very large numbers of aligned petitioners, to file just one -- or at most two -- 14,000-word briefs.  And perhaps they will allow a short additional brief to be filed by intervenors and amicus curiae in support of petitioners.  But rarely (if ever) will the D.C. Circuit take the hands-on approach that it did in Alabama Power, i.e., being actively involved in figuring out what the key issues are and ensuring that enough space is devoted to the briefing of each such issue.  Thus, it was not a surprise when, on January 18, 2012, the D.C. Circuit issued a briefing order in the CSAPR litigation, authorizing the 45 aligned petitioners to file “no more than two briefs, not to exceed a combined total of 28,000 words” and allowed intervenors and amicus curiae in support of petitioners to file just one joint “not to exceed 7,000 words[.]” 

Most appellants in these kinds of cases understand (and may even empathize with) the desire of the reviewing judges not to have to read dozens of lengthy briefs addressing the inner workings of labyrinthine Clean Air Act programs.  However, as EPA develops ever-more-complex regulatory programs -- programs that, under the terms of Clean Air Act § 307(b),  must be challenged upon promulgation -- petitioners are in a bind.  Aware that there will be a limit on the amount of space they will have in which to explain a challenged EPA program and to articulate why parts of that program are unlawful, petitioners must often choose to brief only a few issues, thus perhaps waiving their rights to challenge other program elements that are of concern. 

Conspiracy theorists among us might be questioning whether court limits on briefing serve as motivation to EPA to make new regulatory programs even more complex.  In particular, such individuals wonder whether EPA rule drafters are now producing more complicated rules because they know that the more complex new rules are, the less likely it is that rule challengers will -- under current court procedures -- be able to present their concerns fully to the reviewing court. 

This surely had to have been in the mind of one attorney who several years ago had to present oral argument in the D.C. Circuit on an issue which had to be briefed in very few words.  During argument, she was told by one of the judges that she might well have a good point, and it was just too bad that the point had not been developed more fully in her brief.  The advocate in that case is to be commended for not losing her cool and condemning a system under which words per petitioner seem to be allocated in inverse proportion to the complexity of the case(s) before the court.  But she was almost certainly thinking something along those lines.

And speaking of lines, I offer the following lines of verse to make this point: 

The rules produced by EPA
Have caused concerns for years.
But parties once thought courts would hear
Their views with open ears.
In complex cases of today,
Those ears are closed, I fear.
It seems the more you want to say,
The less the courts will hear.      

Bird Brain Idea?

Posted on January 26, 2012 by Stephen Herrmann

Last summer, the U.S. Department of Justice, acting on allegations made by agents of the U.S. Fish and Wildlife Service, brought criminal indictments against three oil companies operating oil fields in North Dakota, charging them with violating the Migratory Bird Treaty Act for acts resulting in the killing in the aggregate four Mallards, one North Pintail, one Red-Neck Duck and a Say’s Phoebe.  The birds allegedly fell victim to the oil companies “reserve pits” -- basically big holes dug into the ground to collect waste water and mud from drilling operations.  When such pits are not properly netted, birds can get into these ponds, get covered in muck and die.

In dismissing the government’s case, the United States District Court for the District of North Dakota stated the Migratory Bird Treaty Act of 1918 is far too vague to justify such indictments.  If inadvertently killing birds and drilling operations ought to be criminalized,  Congress must state so explicitly.  If the Act’s concepts of “take” or “kill” were read to prohibit any activity that could accidentally result in a dead migratory bird many every day activities could be criminally prosecuted such as “cutting brush and trees, and planting and harvesting crops, driving a vehicle, owning a building with windows or owning a cat.”

According to the U.S. Fish and Wildlife Service, here are some estimates on how many birds die from crashes involving: 
                     Windows                                 100 million killed
                     Communication Towers        5-50 million killed
                     Power Lines                            10,000 to 174 million killed
                     Cars                                         60 million killed
                     Windmills                               39,000 killed

Even for those of us, bird lovers and hunter, who support efforts to save migratory birds, it is hard to disagree that if the court were to decide otherwise  “many every day activities become unlawful -- and subject to criminal sanctions -- when they cause the death of pigeons, starlings and other common birds.”  Such prosecutorial actions fuel resistance to proper enforcement of environmental laws.

Adaptation to Climate Change: Emerging Priority

Posted on January 25, 2012 by Ralph Child

There is no alternative.  Whatever the causes, pace or impacts of climate change, people, cultures, economies and eco-systems will adapt to climate change as it occurs.  What’s in question is where, how much and when adaptation will occur and with what strategic planning, distribution of costs and injury.

To date, the inevitability of adaptation has been over-shadowed by the attention to efforts to prevent global warming.  Scary projections of flooded coastal cities and wholesale ecological change have been used more to support campaigns to reduce CO2 emissions than to promote serious planning for ocean rise and changed eco-systems.  Adaptation planning has not been the priority and has even seemed a cop-out.  But as hopes to prevent or slow climate change are not realized, adaption planning is emerging as a priority.

Indeed, behind the headlines efforts to plan for adaptation are already underway.  President Obama’s initial support for cap and trade got the attention.  But he also issued an Executive Order establishing a Climate Change Adaptation Task Force that is coordinating very significant federal efforts to gather data and plan for adaptation.   Many of those efforts are collected at EPA’s webpage on adaptation.  More than a dozen states have commissioned adaptation plans, e.g., the Massachusetts Climate Change Adaptation Report.  Some universities have developed programs focused on adaptation planning, e.g., UNC’s Center for Law, Environment, Adaptation and Resources (CLEAR).  Insurers and re-insurers, public authorities responsible for long-term infrastructure, and societies of professionals such as engineers and others are putting serious consideration into what adaptation will require over time by way of changed standards for public works and buildings. 

These efforts do not yet amount to a broad plan, but are laying the foundations for adaptation planning to seep broadly into capital planning and resource protection efforts across all facets of our economy.  Compulsory central planning is probably not a politically acceptable option – but the inevitability and breadth of adaptation efforts mean that millions of decision-makers still will plan for adaptation over time.

The Future of Carbon Dioxide Capture and Geologic Sequestration (CCS) Discussed at International Conference

Posted on January 24, 2012 by David Flannery

I had the privilege to be a speaker at a CCS conference held at the Canadian Embassy in Washington DC on January 19, 2012. The conference was hosted by the Global CCS Institute for the purpose of discussing the strategic directions expected to be undertaken in the development and deployment of the geologic sequestration of carbon dioxide. Central to this issue is the national and international concern over climate change at a time when our nation’s energy supply is so closely tied to the use of fossil fuels.

In his keynote speech at the conference Charles McConnell of USDOE’s Office of Fossil Fuels offered the view that coal must be economically advantaged and environmentally sustainable. Much of the conference was dedicated to a review of the many CCS projects being undertaken around the world in an effort to demonstrate the feasibility of the technology.

A key component of the development of CCS is, of course, the cost of the technology and the opportunities that exist to offset those costs. One such opportunity is the use of capture carbon dioxide to enhance the production of oil (EOR). While many of the speakers at the conference recognized the early value of CCS/EOR projects, both Brad Page of the Global CCS Institute and Steve Winberg of Consol Energy pointed out that EOR capacity is only 20% of the ultimate capacity that will be needed to meet the President’s carbon dioxide reduction target. Other alternatives for the geologic sequestration of carbon dioxide include depleted oil and gas reserves and greenfield deep saline formations.

My remarks at the conference were directed at the significant leadership being undertaken by the various states to address the legal and regulatory uncertainties associated with CCS activities. West Virginia is among those states where a legislatively mandated working group has recommended not only a comprehensive set of regulatory requirements, but also a liability transfer mechanism during the post operational phase of a project tied to the establishment of an operator generated trust fund. That working group has also recommended a comprehensive set of policies related to property issues including a determination that the use of pore space may be considered a public use to be authorized by permit.  Click here for the list of conference speakers.

Some Thoughts On Phase I Reliance Letters and CERCLA All Appropriate Inquiry

Posted on January 23, 2012 by Charles Efflandt

Phase I report “reliance letters” issued by an Environmental Professional (EP) may be misunderstood and misused in the context of conducting CERCLA All Appropriate Inquiry (AAI). The term “reliance letter,” in fact, is nowhere to be found in either the Federal All Appropriate Inquiry Regulations or the related ASTM Standard E 1527-05.

Consider the following common AAI situation: A client has contracted to buy property for which a Phase I Environmental Site Assessment (Phase I ESA) report was recently prepared for the seller. To avoid the costs of obtaining a new Phase I report, the client asks whether it can use the Phase I provided by the seller to satisfy its environmental diligence obligations. The Phase I report explicitly states that it can be used and relied upon only by the contracting user for which it was prepared. The EP may be willing to issue a reliance letter to the client for a fee or occasionally at no cost. But what exactly is a reliance letter and how does it relate to the objective of compliance with AAI requirements?

Unauthorized use prohibitions and reliance letters are intended to protect EPs from potential claims by third-parties who may rely on a Phase I report prepared for another. Nevertheless, an unsophisticated third-party recipient of a reliance letter may construe such a letter as documentation of compliance with AAI requirements. A reliance letter establishes the recipient’s status as an authorized “user” primarily for purposes of the party’s legal relationship with the EP. Requesting a reliance letter to establish authorized user status is only one of several AAI issues that should be considered by third-party users of Phase I reports.

Other important questions to be considered include whether the one year/180 day regulatory shelf-life of the report has expired. Also, what independent inquiries must a third-party undertake to satisfy the AAI regulations? Third-party recipients of reliance letters may easily overlook conducting the “user” inquiries required by the AAI regulations.

The ASTM Standard further contemplates that the results of the user’s separate inquiries be provided to the EP prior to completion of the EP’s Phase I tasks (the AAI regulations are less clear). How do those provisions of the ASTM Standard apply to the third-party reliance situation? Is the third-party user obligated to accumulate the necessary user information and provide it to the EP after-the-fact? If so, how should the EP deal with any new substantive information? Also, if the results of the user inquiry are not referenced in the Phase I report, how does the third-party document that it has satisfied those obligations?

Of course, the EP may decline to issue a reliance letter or may impose costs or terms that are unacceptable. The EP may even suggest that, absent such use and reliance authorization, a new Phase I ESA must be conducted. But is that correct? The regulations set out conditions for third-party use of information contained in a Phase I report prepared for another. No requirement that the EP preparing the report issue a reliance letter is included among those conditions. The ASTM Standard specifically provides that no particular legal relationship between the EP and the user is necessary for the user to satisfy AAI obligations. With or without a reliance letter, the AAI regulations and ASTM Standard contemplate that the third-party may use the results of a report prepared for another person to partially satisfy its AAI obligations.

These questions, and perhaps others, suggest that a third-party user of a Phase I report prepared for another should be aware of the limitations of a reliance letter, if issued, and carefully consider all pertinent regulations in conducting its AAI.

Unintended Consequences and the Big Band Sound

Posted on January 20, 2012 by Kevin Finto

My father introduced me to the big band sound he grew up with in the ‘20s, ‘30s and ‘40s.  In addition to the musical skirmishes between the powerful brass and elegant woodwind sections that highlighted the genre, he was fond of the lyrics.  One of his favorite ditties was a playful calypso tune written by Sy Oliver and Trummie Young, first recorded by Jimmie Lunceford in 1939.  The enlightened refrain gives the recipe for being highly effective -- “Tain’t what you do, it’s the way that you do it – that’s what gets results.”  At about the same time Lunceford was leading his show band, sociologist Robert J. Merton was focusing on avoiding the wrong results.  He popularized the concept of “unintended consequences,” the gist of which is humans cannot fully control the outcome of their actions so be careful what you do and for what you ask.  Seventy-five years later, EPA’s recent proliferation of regulations with short time fuses and no existing or foreseeable means of compliance demonstrates no such careful thought.

Merton’s analysis provided five causes for unintended consequences:  ignorance, error, immediate interest, basic values and self-defeating prophecy.  While these five causes could form the outline for comments on almost any rule, the one that might be most applicable to EPA’s recent flurry of regulatory activity is what Merton called “the imperious immediacy of interest” which refers to instances where the actor’s paramount concern with the immediate action excludes the consideration of further or other unforeseen consequences of the same act.  The speed in which the recent rules have been promulgated, the leap in technology that they require, and the brevity of the time period by which compliance is required are unprecedented and seem destined to result in unintended consequences.

Examples of these rules include the corporate average fuel economy (“CAFE”) standards which EPA established in 2009.  Under the CAFE standards, Model Year 2011 vehicles must achieve 27.3 mpg.  The requirement is ratcheted up to 35 mpg by 2016, and a whopping 54.5 mpg by 2025.  Those developing the standards were warned that the standards would result in the production of smaller, lighter and deadlier cars.  The developers not only required increased mileage, they limited greenhouse gases (GHGs), including CO2 emissions, from motor vehicles – the first time that GHGs were regulated as air pollutants under the Clean Air Act.  Standard developers also recognized that regulating GHGs as pollutants for mobile sources would also trigger regulation of GHGs from stationary sources under the Clean Air Act’s prevention of significant deterioration of air quality program.  The latter was not an unintended consequence, but where such regulation might lead our economy and society is anyone’s guess.  We need only look at the recent reports of spontaneous combustion of electric vehicles to get some idea.

Another example is EPA’s issuance of the cross-state air pollution rule which afforded electric generating facilities only four months between its promulgation and the date of compliance on January 1, 2012.  EPA promulgated the rule amid warnings by states and others that the electric system reliability was jeopardized.  Fortunately, the D.C. Circuit stayed the rule on December 30.  Similarly, EPA pushed out the EGU MACT standard after allowing itself only a few months to consider tens -of -thousands of comments on the proposed rule.  Such speed of promulgation without regard for unintended consequences has EPA staffers concerned about the quality of their work product.  Perhaps it’s time to revisit the requirements for regulatory impact analysis to consider new rules in light of Merton’s five causes of unintended consequences and Lunceford’s catchy tune.  The alternative may be to sing another tune Lunceford popularized -- Blue in the Night.

Republican Environmentalism: An Oxymoron?

Posted on January 17, 2012 by E. Donald Elliott

Our dramatic progress in environmental policy from 1970 to 1992 resulted from a healthy competition between the two political parties, I argue in Politics Failed, Not Ideas. Competition between Republicans and Democrats gave us the Clean Air and Water Acts, the Acid Rain Trading program, and the 1992 Rio Treaties on Climate Change, Biodiversity and Sustainable Development.  With Mitt Romney’s victory in the New Hampshire primary, it is time to ask whether this healthy competition over environmental issues will ever return, or whether the concept of  “Republican Environmentalism” is an anachronism, if not an oxymoron.   

A new renaissance of Republican environmentalism may be just around the corner, according to Joe Klein.  In his December Time Magazine article, Why Don't They Like Me, Klein argues that both Romney and Gingrich are “empowerment Republicans” of the 1990’s, who don’t really oppose progressive goals so much as they maintain that they can accomplish them in a better way. A lot of this is damning with faint praise by a partisan who is trying to de-legitimate Romney with voters by creating a perception that he lacks character and flips-flops on issues.  But at least on the environment, there is a core of truth to the point.  After all, occasional claims to the contrary notwithstanding, most Republicans don’t actually want to poison our children and befoul our air and water.  Republican objections to federal environmental initiatives in recent years have had more to do with means than ends.

Republicans generally oppose big government and centralized planning of the economy.  But the press has come to define “strong” environmental policies in terms of the level of federal government coercion rather than the amount of progress made toward meeting environmental goals.  For example, the George W. Bush Administration made some progress in reducing emissions of some Greenhouse Gases (GHGs) through the Methane to Markets program (which in fairness, it inherited from the Clinton Administration).  This successful program worked co-operatively with companies to plug leaks of methane from pipelines – a classic win-win for the environment and the economy – and has now gone global under Obama. However, repeatedly we were told that the Bush Administration was “doing nothing” about GHGs because they were opposed to a federal cap-and-trade program for CO2.

A second basic difference between Republicans and Democrats on the environment is that Republicans generally need to be shown credible proof that environmental regulation will produce benefits several times greater than its costs.  Most Democrats, on the other hand, already “know” in their hearts that environmental programs are good without needing to be convinced by data.  Then Chair of the Senate Environment and Public Works Committee, California Democrat Barbara Boxer, once exclaimed in frustration at a scientific witness during a hearing: “Doctor, I may not know the facts, but I know what’s right!”   On the other hand, Bush Office of Information and Regulatory Affairs Administrator John Graham was able to get tough environmental regulations such as the off-road diesel rule or the first tightening of CAFE standards in a generation through a skeptical White House when he could show the doubters that regulation would produce health benefits several times greater than their cost.  For further discussion on this issue click here.

Republicans and Democrats do look at environmental policies differently, just as they look at what creates true international security or the government’s proper role in energy policy differently.  But if a Republican ends up in the White House on January 21, 2013, we could begin to make progress on the environment again if we focused on the areas where we can find common ground rather than wedge issues that make people on both sides feel morally superior but don’t get things done.

Oral Argument In Sackett v. EPA (US Supreme Court): Judicial Review Of An EPA Compliance Order

Posted on January 12, 2012 by Theodore Garrett

The Supreme Court heard oral argument this morning (January 9, 2012) in Sackett v. EPA, No. 10-1062.  EPA had issued a compliance order charging the Sacketts with filling in a wetlands, in the course of building their home, in violation of the Clean Water Act and requiring them to restore their property.  The Sacketts dispute that their property is a wetlands and seek an opportunity for judicial review of EPA’s order.  EPA argues that the Sacketts could comply with the EPA order or submit an application for a wetlands permit or defend if EPA brings an enforcement action, but may not seek judicial review of EPA’s order. 

The tenor of the oral argument did not bode well for the United States.  Some of the Court’s questions seemed to focus on how to write the opinion and the consequences of a ruling for the Sacketts.  If the Sacketts prevail, it will be important to see how EPA responds and what if any changes are made to EPA’s practice and procedure for issuing orders in wetlands and perhaps other matters.  The transcript of the Supreme Court argument is available [here].

The toughest questions and comments were aimed at counsel for the United States, Malcolm Stewart.  Justice Alito stated:  “Mr. Stewart, if you related the facts of this case as they come to us to an ordinary homeowner, don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?”  (Tr. 37)

Chief Justice Roberts asked “what would you do, Mr. Stewart, if you received this compliance order? (Tr. 35).  When Stewart responded that one could apply for an after-the-fact permit,”  Chief Justice Roberts replied “You wouldn’t do that, right? You know you will never get an after the fact permit if the EPA has sent you a compliance order saying you’ve got wetlands.”  (Tr. 36)  Earlier, Justice Kagan had asked counsel for the Sacketts rhetorically whether the critical point wasn’t that EPA would not entertain an after-the-fact permit while a compliance order is outstanding. (Tr. 12).  Justice Alito expressed the view it “seems very strange for that, for a party to apply for a permit on the ground that they don't need a permit at all.”  (Tr. 14). 

The government’s alternative solution, that one could comply with the compliance order, met with an incredulous response from Chief Justice Roberts:  ”That's what you would do? You would say, I don't think there are wetlands on my property but EPA does, so I'm going to take out all the fill, I'm going to plant herbaceous trees or whatever it is, and I will worry about whether to -- that way, I'll just do what the government tells me I should do.” (Tr. 36-37). 

Justice Breyer focused on the finality of the EPA order for purposes of judicial review, stating “for 75 years the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite. And yet -- so here you are saying that this statute that says nothing about it precludes review, and then the second thing you say is that this isn't final. So I read the order. It looks like about as final a thing as I have ever seen.”  (Tr. 41)

Justice Ginsburg asked Mr. Stewart whether, once EPA made the determination that there were wetlands, that be the end of the matter as far as EPA is concerned.  Mr. Stewart got himself in difficulty when he replied “ I think they have reached that conclusion for now. I don't think it would be accurate to say that we have done all the research we would want to do if we were going to be required to prove up our case in court.” (Tr. 51)  Justice Alito was not pleased with that reply:  “Well, that makes the EPA's conduct here even more outrageous.  We think now that this is -- these are wetlands that -- that qualify, so we're going to hit you with this compliance order, but, you know, when we look into it more thoroughly in the future, we might change our mind?” (Tr. 51)

In questions to counsel for the Sacketts, Justice Breyer noted the government’s concern that “when you get judicial review of this kind of order, the Court doesn't refer on fact-finding that isn't made on a record.  * * * And so they'll have a hard time -- or a harder time -- in each of these cases subjecting it to judicial fact-finding.”  Justice Breyer suggested that EPA might change its procedure if the Sacketts prevail, and providing some type of pre-order or post-order procedure that would be open to change. (Tr. 55) 

It is of course always difficult to predict the outcome of a Supreme Court case with certainty simply based on oral argument.  That being said, it is also difficult to be optimistic about the government’s chances of prevailing based on the comments made by the court during oral argument today.  Whatever the outcome, the Court’s ruling will likely be an important environmental and administrative law precedent. 

Supreme Court Hears Oral Argument in Sackett

Posted on January 11, 2012 by Seth Jaffe

I am generally loath to speculate about what the Supreme Court will do based on oral argument, but the overwhelming reaction to the oral argument in Sackett v. EPA was that EPA is going to lose. What would a loss mean? In simplest terms, EPA would no longer be able to issue enforcement orders under the Clean Water Act without those orders being subject to judicial review. Such a decision would undeniably be significant. Everyone practicing in this area knows how coercive EPA enforcement orders can be. A person who thinks that he is not liable or that the order is inappropriate, and faced with having to violate the order and wait for EPA to bring an enforcement action to obtain judicial review, is truly between a rock and a hard place – or perhaps Scylla and Charybdis (I’m not sure which, but it’s not good, either way). The opportunity for preenforcement review would eliminate much of EPA’s coercive power.

The big question is whether a decision against EPA would be so broad as to make it clear that EPA’s order authority under other statutes, such as CERCLA, would be similarly affected. Here, speculation really is difficult, because the Supreme Court could invalidate EPA’s CWA authority several different ways, with differing impacts on other statutes. Readers who want to explore the issue in more depth than a blog post can review an article I did in the ABA Superfund and Natural Resource Damages Litigation Committee Newsletter.

As long as I am speculating, I’m going to go out on limb and predict that the Court’s decision will not be easily limited to the CWA. I think EPA’s order authority is in trouble across the board.

The next big question is when lower courts are going to actually start paying attention to what the Supreme Court says about environmental cases. I’m tired of this pattern. A series of cases are decided by lower courts, almost universally in EPA’s favor. Indeed, one of the striking things about Sackett is that the Supreme Court took the case without a circuit court split – EPA had won before every circuit court that had reached the question. The Supreme Court applies principles that are broadly accepted outside the environmental arena, but which for reasons unknown to everyone but the lower court judges have been thought inapplicable to environmental cases, and EPA loses. The next several years are spent with EPA, DOJ, and the lower courts merrily constructing some new edifice which allows EPA to continue to win – until the Supreme Court takes another case and says “No, we really meant it.”

There is a lesson here for lower courts, if they would but listen. Environmental cases are not sui generis. EPA does not necessarily win just because it is protecting the environment. General principles of corporate, administrative, and constitutional law apply. Under this framework, EPA will still win most of the time. That’s the nature of administrative law. Expert agencies receive a lot of deference from the courts in interpreting their organic statutes and applying their expertise. But they don’t win all the time, and they don’t win just because they are EPA.

Rant over. Let’s see what the Supremes actually do.

California Revives Its “Green Chemistry” Initiative

Posted on January 10, 2012 by Robert Falk

After a failed attempt at the end of the Schwarzenegger Administration, under current Governor Jerry Brown, California is now pushing forward with its new “green chemistry” approach to the regulation of chemicals in consumer products.  These regulations are likely to be formally unveiled early this year and will require extensive risk and life cycle analyses for prioritized products, which are likely to initially include children’s products, personal care products, and household cleaning products. 

The Envisioned Process
The revised California green chemistry regulations will establish a four-step process to identify safer consumer product alternatives.

1.  Chemicals:  The State will publish an initial list of Chemicals of Concern (COCs), likely involving close to 3,000 substances. 
2.  Priority Products:  Next, it will develop a list of Priority Products based on its evaluation of products that contain the identified COCs, as well as the distribution, use, and disposal patterns.
3.  Business Duty to Notify and Evaluate:  Responsible entities will be required to notify the State when their product is listed as a Priority Product and to perform an Alternatives Assessment. 
4.  Product/Chemical Limits/Regulations:  California will identify and impose a “Regulatory Response” to limit potential adverse public health and environmental impacts.

As drafted, the regulations will eventually apply to all consumer products containing a COC that are sold, offered for sale, supplied, distributed, or manufactured in California.  There are limited exemptions for:

•    Products exempted by law (specified medical and dental devices, “dangerous” prescription drugs, food, and pesticides) and products used solely to manufacture a product exempted by law;
•    Products manufactured, stored in, or transported through, California, solely for out-of-state use; and
•    Products regulated by other federal or California state regulatory programs or international trade agreements, where the program or agreement provides an equivalent or greater level of protection of public health and the environment than would be provided if the product were listed as a Priority Product (no examples are specified, but EU programs seem likely candidates).

There are de minimis exemptions for products with COCs at concentrations equal to:

•    0.01% by weight for chemicals exhibiting one of nine specified hazard traits (carcinogenicity, developmental toxicity, reproductive toxicity, endocrine toxicity, genotoxicity, immunotoxicity, neurotoxicity, bioaccumulation, or environmental persistence);
•    0.1% by weight for chemicals that do not exhibit any of the nine specified hazard traits and environmental and toxicological endpoints; or
•    A lower or higher concentration if specified by DTSC in the Priority Products list.

The regulations apply to any “responsible entity,” which includes the manufacturer, or, if the manufacturer does not comply, the importer or retailer. 

Alternatives Assessment
This assessment remains at the heart of the Green Chemistry regulations.  Each must be conducted in two stages, with a report sent to State regulators at the end of each stage.

Necessity/Identification of Alternatives:  In the first stage, product criteria are identified (e.g., by function, performance, technical, and legal requirements).  A statement must be provided on whether the COC or a substitute chemical is necessary to meet the product’s requirements.  Next, alternatives to the usage of the COC must be identified and screened, and a work plan proposed for the second stage.   
Detailed Assessment of Alternatives:  The second stage requires a more detailed assessment of alternatives.  The product and each alternative must be evaluated with respect to relevant factors and associated exposure pathways and life cycle segments.  At this stage, the responsible entity selects an alternative that will replace or modify the Priority Product or decides not to modify the Priority Product (or discontinue the distribution of the product in California). 

Regulatory Responses
At a minimum, product information will be required to be provided to consumers if a Priority Product contains a COC above the de mimimis level. Additional possible regulatory responses include mandating implementation of engineered safety measures designed to control access or limit exposure to the COC in a Priority Product and, at the extreme, a potential prohibition on sale of the Priority Product within California. 

With reform of the Toxic Substances Control Act stalled in Congress, Governor Brown’s Administration appears more determined than its predecessor to take the lead in product stewardship and chemical regulation through California’s so-called “green chemistry” initiative.


Enforcing Workers’ Compensation in Toxic Tort Birth Defects Cases: Delaware Court Rejects First in Series of Preconception Tort Cases

Posted on January 9, 2012 by Patrick Dennis

By:    Patrick W. Dennis and Perlette Michèle Jura
         GIBSON DUNN

In the past few years, more than 25 multi-party cases have been filed against semiconductor manufacturers, alleging that employees working in “clean rooms” were exposed to chemicals, such as ethylene glycol ethers, which caused birth defects in the employees’ children.   The majority of these cases have been filed in Delaware state court and seek direct recovery in tort for children plaintiffs, who allege that they were exposed to these chemicals through their employee-parents prior to conception or in utero.   In addition to raising a number of environmental and causation issues, these cases present significant questions about the scope and extent of the duties employers in the non-medical industries have to unborn persons.  They also raise important questions about whether such claims should be addressed through civil litigation, or whether they fall within the exclusive domain of workers’ compensation. 

In a pivotal opinion, on September 30, 2011, Delaware Superior Court Judge Jan R. Jurden (who is presiding over more than a dozen clean room cases) dismissed a clean room case, Peters v. Texas Instruments.  Applying Texas law (where the alleged exposures occurred), Judge Jurden found that the exclusivity provision of the Texas Workers’ Compensation Act (which provides that workers’ compensation is the exclusive remedy for alleged workplace injuries) barred the child’s (and its parents’) civil claims against defendant Texas Instruments, because the child plaintiff’s claims were derivative of and dependent on the parent-employee’s.  Id.  The court also found that, to the extent that the plaintiffs sought to hold Texas Instruments liable for acts predating the child’s conception, Texas courts have not recognized preconception tort liability and it would be improper for Delaware courts to do so when applying Texas law, particularly because expansion of a legal duty falls within the realm reserved to the legislative, as opposed to judicial, branches. It is noted that the Plaintiffs are seeking reconsideration in Peters, but it will be a difficult decision to change from a legal perspective.

The Peters decision may be the first of many dismissals in the series of clean room birth defects cases.  Peters is also an important decision in the developing body of transgenerational tort law and birth defects cases generally.   While a handful of courts have recognized that medical professionals can be liable to individuals for their actions prior to that person’s birth, numerous courts have recognized that imposing duties to unborn children beyond a very narrow set of circumstances would not only prove unworkable, but would also constitute an improper judicial interference in a realm reserved for the legislative branch. An example is the Texas Appellate Court decision in Chenault v. Huie.   Further, employers spend millions on workers’ compensation every year.  One of the benefits that workers’ compensation schemes offer to employers is the promise of exclusive and limited liability: an employee’s recovery for work-related injuries is limited to the amount fixed by the governing workers’ compensation scheme and the employer will not be liable in tort, unless the injury was intentionally caused.  If parent-employees could bring lawsuits on behalf of their minor children for birth defects allegedly caused by preconception or in utero exposures in the course of their employment, it would create a significant loophole in workers’ compensation schemes and disrupt the delicate balance state legislatures have struck between employer and employee interests in the workers’ compensation arena. 

Claims of Predetermination Under the National Environmental Policy Act

Posted on January 6, 2012 by Andrew Brown

In recent years, several courts have addressed the issue of what standard a plaintiff must meet to successfully challenge agency action on the ground that it was improperly predetermined in violation of the National Environmental Policy Act (NEPA). Because federal agencies conducting major federal action subject to the requirements of NEPA frequently have a preferred alternative in mind when conducting environmental review, legal challenges based on claims that the agency improperly predetermined the outcome of its NEPA analysis are common.  When an agency action is successfully challenged for improper failure to prepare an Environmental Impact Statement (EIS) and the agency reaches the same result upon completion of an EIS, plaintiffs may raise a claim of improper predetermination, contending that the result is essentially a foregone conclusion.

Circuit courts have generally imposed a stringent burden on plaintiffs seeking to prove predetermination in violation of NEPA. Most recently, the Tenth Circuit addressed the appropriate standard for predetermination in Wyoming v. United States Department of Agriculture.  In Wyoming, the State of Wyoming challenged a final rule promulgated by the United States Forest Service that prohibited road construction and commercial timber harvesting in inventoried roadless areas of the National Forest System.  The State alleged, among other claims, that the Forest Service impermissibly predetermined the outcome of the Roadless Rule proceeding.  The Tenth Circuit Court of Appeals reversed the district court, relying on the stringent standard it had set forth in Forest Guardians v. United States Fish & Wildlife.  The court noted that “predetermination occurs only when an agency irreversibly and irretrievably commits itself to a plan of action that is dependent upon the NEPA environmental analysis producing a certain outcome, before the agency has completed the environmental analysis….”

The Ninth Circuit adopted a similarly stringent standard.  Metcalf v. Daley.  In Metcalf, the court found improper predetermination where the agency signed two written agreements binding them to support the proposal under consideration before preparing an Environmental Assessment and Finding of No Significant Impact.  The Ninth Circuit held that the agencies had violated NEPA by making an “irreversible and irretrievable commitment of resources” prior to completing the environmental review.

In Forest Guardians, the Tenth Circuit also addressed the question of what evidence should be considered by a court in evaluating whether an agency has improperly predetermined its outcome in violation of NEPA.  The court concluded that review of evidence outside the environmental review itself is proper where there is a claim of predetermination. In reaching this conclusion, the Court expressly rejected the dicta of the Fourth Circuit in National Audubon Society v. Department of the Navy, stating that a reviewing court “should generally restrict its inquiry to the objective adequacy of the EIS . . . [and] should not conduct far flung investigations into the subjective intent of the agency.”  The Fourth Circuit reasoned that “[w]here an agency has merely engaged in post hoc rationalizations, there will be evidence of this in its failure to comprehensively investigate the environmental impact of its actions and acknowledge their consequences.”  Because such evidence was absent, the Fourth Circuit affirmed the district court’s conclusion that the Navy had failed to undertake the hard look at environmental consequences that NEPA requires.  

In light of these decisions, plaintiffs alleging that an agency has improperly predetermined the outcome of its environmental review in violation of NEPA face an uphill battle in establishing liability.  The imposition of such a stringent burden is well supported by the language of the Council for Environmental Quality regulations implementing NEPA, see 40 C.F.R. § 1502.14(e), as well as by Supreme Court precedent holding that there must be a strong showing of bad faith or improper behavior before inquiry into the mental processes of administrative decision makers may be made.  Citizens to Preserve Overton Park, Inc. v. Volpe

EPA Proposes New Boiler MACT Standards

Posted on January 5, 2012 by Karen Crawford

By: Karen Aldridge Crawford and Stacy Kirk Taylor
      Nelson Mullins Riley & Scarborough

On December 2, 2011, EPA proposed its fourth round of regulations governing industrial boilers and process heaters (i.e. the boiler MACT standards).  [EPA Notice]  Although additional changes are unlikely (given that this is EPA's fourth set of revisions), EPA is providing a 60-day comment period and does not expect to finalize the regulations until spring (likely April) of 2012.

EPA maintains that the reworked regulations provide greater flexibility, reduce the number of boilers to which the regulations would actually apply, and will ultimately cut the cost of implementation by nearly 50% from the original 2010 proposed rules.  Groups such as the National Association of Manufacturers, however, remain opposed and continue to press for a legislative fix if EPA fails to sufficiently consider the added expense that even the newly proposed regulations will impose on goods manufactured in the United States.  In response to EPA's issuance of the proposed rules, Senator James Inhofe (R-Okla.) of the Senate Committee on Environment and Public Works stated that, although he appreciated EPA's acknowledgment of the potential economic impacts and efforts to revise the rules, the revised rules would still have too great an economic impact on the United States.  Sen. Inhofe then pressed Senate Majority Leader Harry Reid (D-Nev.) to allow a vote on the House-passed EPA Regulatory Relief Act. 

[Inhofe's Comment]   

According to EPA, the major source proposal, which is the part of the proposed regulations that impose actual control technology, would now cover less than 1% of the boilers in the United States (approximately 14,000 boilers).  For boilers located at smaller facilities, such as universities, hospitals, and commercial buildings, only a very small number would actually have to take any additional steps to comply with the proposed rule; the vast majority would simply be required to perform maintenance and routine tune-ups.  Highlighting some of the specific changes, the proposed regulations:

•    Set new emission limits for mercury, hydrogen chloride, particulate matter, and carbon monoxide (the last two of which serve as surrogates for metallic and organic pollutants), many of which, however, are as stringent or actually more stringent than the limits provided in the previous version of the regulations.

•    Increase the number of boiler subcategories (for which subcategory-specific emissions limits are proposed) to fourteen.

•    Eliminate the numeric emission limit for dioxins/furans, noting in the preamble that the level     previously proposed could not be accurately measured with existing technology, and instead tackle dioxin/furan emissions by imposing work practice standards that include periodic tune-ups to ensure good combustion. 

•    Provide greater flexibility than was previously allowed by providing for the use of a variety of     alternative emissions limits and compliance demonstration methods (for example, a facility with more than one boiler can now choose to average emissions as long as the source as a whole is less than 90% of the applicable standard). 

•    Eliminate requirement for continuous monitors for particulate matter. 

•    Revise the compliance deadlines, providing three years from publication of the final rule to comply (the June 4, 2010 date of the initial proposed regulations, however, will remain the date for determining whether a unit is considered a "new" or "existing" unit).  

In conjunction with reworking the boiler MACT standards, EPA revisited the Commercial/Industrial Solid Waste Incinerators (CISWI) rules and the Non-Hazardous Secondary Material (NHSM) rules to provide greater clarity and flexibility as to what types of secondary materials constitute a non-waste fuel.  The changes to the regulations also expressly classify a number of secondary materials as non-wastes when used as fuel and provide a mechanism for requesting such a determination from EPA for other materials.

Draft Policy Would Limit Reach of Endangered Species Act

Posted on January 4, 2012 by Linda Bullen

On December 8, 2011, the Obama administration released a draft policy interpreting a key phrase in the Endangered Species Act (the "Act") that determines when species qualify for protection under the Act.  The Act defines an endangered species as any species “in danger of extinction in all or a significant of portion of its range.” The phrase “significant portion of range” is important, because it means that species need not be at risk of extinction globally to receive protection. The policy proposed on December 8 sharply limits the reach of this phrase by both defining “significant” to mean only where the species currently exists, not its historic range and by defining significant to mean that loss of the species from that portion of range would threaten the survival of the species as a whole.

The proposed policy has resulted in an outcry of opposition from environmental groups.  For example, the Center for Biological Diversity argues that under the proposed policy, "a species could be absolutely gone or close to vanishing almost everywhere it’s always lived — but not qualify for protection because it can still be called secure on one tiny patch of land."  “The policy absolutely undermines the spirit of the Endangered Species Act and will be a recipe for extinction of our native wildlife if it’s finalized - a loophole that’s really a black hole. It will allow for massive species decline and habitat destruction.”

Alec L. and the Tortious Development of Climate Change Litigation

Posted on January 3, 2012 by David Buente

For some advocates of greenhouse gas regulation, tort law has become the primary vehicle to achieve their goal.  Dissatisfied with their progress in the political branches, they’ve begun presenting their claims to courts as tort lawsuits.  When the claims are rejected, they repackage them in different common-law wrappings and sue again. 

The first of these suits was Connecticut et al. v. American Electric Power Co. et al. (“AEP”) (dismissed by the U.S. Supreme Court earlier this year), in which several States and land trusts sought to declare greenhouse gas emissions a common law “nuisance” and secure an injunction capping emissions from a small group of national electric utilities at levels the plaintiffs deemed “reasonable.”  Next came Comer et al. v. Murphy Oil USA et al., where a group of Mississippi landowners sued the same utilities, and scores of other companies, for damages caused by Hurricane Katrina, claiming that the defendants’ greenhouse gas emissions constituted a common law “nuisance,” a “trespass,” and “negligence.”  (After dismissal by the district court and Fifth Circuit, the plaintiffs simply refiled the case—motions to dismiss again are in briefing).  Next, in Native Village of Kivalina v. ExxonMobil Corp. et al., an Alaskan village relied on many of these same common law theories, with allegations of a “conspiracy” added for good measure, suing many of the same defendants for costs the village would purportedly incur protecting itself from storms and other risks they attributed to climate change.  (The district court’s dismissal was recently argued to the Ninth Circuit.)  While courts have thus far rejected all of these suits at the pleading stage, the complaints reflect a continuing trend towards regulation by litigation, in which individual groups of plaintiffs endeavor to advance policy goals through common law actions.

The most recent case is Alec L. et al. v. Jackson et al.  Casting aside even the pretense of a traditional tort case, where one party seeks relief for damages caused by another party’s conduct, the plaintiffs in Alec L. are suing five federal Executive Branch agencies (the Environmental Protection Agency, Department of Defense, Department of the Interior, Department of Commerce, and Department of Agriculture), and explicitly seek an order directing those agencies to promulgate regulations addressing greenhouse gas emissions.  Relying on the “public trust doctrine,” an archaic common law concept rarely cited in modern court decisions, the plaintiffs assert that the federal government holds the atmosphere “in trust” for the public, and that these agencies therefore have a fiduciary obligation to protect the atmosphere from greenhouse gas emissions.  In particular, they ask the court to order the agencies to impose immediate and drastic restrictions on greenhouse gas emissions in this country (6% annually), with the ultimate goal of virtually eliminating the use of conventional fuels by the end of the century.

There is no reason to think that the claims in Alec L. will fare any better than those in the other tort cases discussed above.  All of these claims seek to impose liability for global climatic conditions that are attributable (if at all) to greenhouse gas emissions from billions of sources around the planet over the course of centuries, not to any particular, small group of defendants.  Moreover, they would all put a federal court in the position of making fundamental policy determinations regarding the proper regulatory approach to issues of national and international importance, ordinarily reserved for the political branches.  Indeed, in this respect, the claims in Alec L. are even more difficult to rationalize than those in AEP, as Alec L. asks the court to commandeer and control agencies of the federal government in a manner directly contrary to pre-existing statutory mandates and executive directives.  However, what Alec L. does show is that advocates for greenhouse gas regulation, undiscouraged by their lack of reception at the Supreme Court earlier this year, will continue re-wrapping their claims to send them to more courts.