Livable Communities -- And How to Achieve Them

Posted on June 10, 2010 by Seth Jaffe

With work on financial reform almost complete, Senator Dodd announced this week that his remaining legislative priority is the enactment of the Livable Communities Act, S. 1619. There is a companion house bill, H.R. 4690. A hearing on the Senate bill will be held tomorrow.

It’s hard to be against livable communities and I may just be getting crotchety, but this legislation seems some combination of pointless and misguided. The legislative findings discuss traffic congestion, the percentage of oil used for transportation and CO2 generated from transportation, and the need to encourage and sustain compact development and historical town centers.  And we’re going to solve this – or even make a dent – by making grants to “micropolitan” statistical areas? I don’t think so.

I agree that sprawl is a problem. I support transit-oriented development. However, there are reasons why we see development where we sit it in the United States. People still like the freedom and flexibility of personal automobile use. If we think that all that driving causes externalities – and I do – I’ve got two words for you: carbon tax. Until we make people internalize the cost of their living choices, they will continue to make those same choices and money spent on encouraging livable communities will be largely wasted. If we can’t summon the political will to tax carbon, we shouldn’t pretend that we’re solving the problem by spending money on micropolitan areas.

No New Standards for Chemical Plant Security This Year

Posted on June 8, 2010 by Susan Cooke

Despite earlier expectations, it appears increasingly unlikely that the House and Senate will consider passage of legislation this year on the Chemical Facility Anti-Terrorism Standards (“CFATS”) program.[1] Under that program the Department of Homeland Security (“DHS”) adopted regulations at Title 6 Part 27 which list about 300 chemicals of interest, each with a screening threshold quantity. Facilities with a chemical of concern above the screening threshold quantity are required to complete a screening questionnaire for review by DHS. 

If the DHS determines that the facility presents a high level of security risk, it notifies the facility which must then prepare a security vulnerability analysis and file the analysis with DHS. This analysis must address each vulnerability that is identified, and it must satisfy security performance standards set forth in the regulations, most of which are phrased in very general terms. DHS may inspect such high risk facilities to assess their compliance with regulatory requirements, and it may issue orders assessing civil penalties which it can enforce through an adjudicatory hearing process.

The statutory provisions governing CFATS are due to expire on October 4, 2010, and Congress was expected to consider substantive revisions to the program and extend it for several years before its expiration in October. Two bills, H.R. 2868 and S. 2996, were expected to receive serious attention in crafting that legislation.

[1] The program was established under the Department of Homeland Security Appropriations Act of 2007, § 550, Pub. L. 109-295, and was extended by the Department of Homeland Security Appropriations Act of 2010, § 550, Pub. L. 111-83.


H.R. 2868 passed the House in November 2009 and is entitled the “Chemical and Water Security Act of 2009”. It would extend the program’s current requirements to facilities that treat drinking water or wastewater, with the requirements administered by the U.S. Environmental Protection Agency and state authorities rather than DHS. The House bill would also require high risk facilities to assess inherently safer technology (“IST”) alternatives (referred to in the bill as “methods to reduce the consequences of a terrorist attack”). In addition, the bill would provide for citizen petitions seeking DHS investigation of a chemical facility allegedly in violation of CFATS requirements.

The Obama Administration has advocated modifications to CFATS that are similar to the provisions of H.R. 2868, and Senator Lautenberg who chairs the Senate’s Environment and Public Works Committee has stated his intention of introducing a chemical security bill which is expected to be at least as stringent as the H.R. 2868. However, he has yet to introduce such a bill. 

S. 2996 has received the support of several industry sectors and is entitled “Continuing Chemical Facility Antiterrorism Security Act of 2010”. It would extend CFATS for another five years, leaving the current provisions essentially intact except for the addition of voluntary chemical security training and exercise programs. 

It now appears that the House and Senate will extend statutory authorization of the CFATS program for another year, with supplemental funding provided in the Homeland Security budget bill now under consideration. Of course, the recent oil spill in the Gulf of Mexico could engender renewed interest in the earlier adoption of an IST provision which has been the subject of the greatest discussion. Indeed, one Green Peace blog points to failure of the shut off valve on the oil rig where the Gulf of Mexico oil spill occurred as demonstrating the need for immediate adoption of such a provision. However, absent a major catastrophe on land or connected to a terrorist plot involving a chemical facility or refinery here in the United States, legislative action on proposed changes to the CFATS program is not expected to occur until after the fall elections.

SEC Issues Interpretative Guidance on Climate Change Disclosures

Posted on June 7, 2010 by Michèle Corash

by Michele B. Corash and Robert L. Falk

Morrison & Foerster LLP

San Francisco, California



In the first quarter of 2010, the U.S. Securities and Exchange Commission (“SEC”) issued a potentially significant “interpretative release” providing guidance to public companies on their disclosure obligations relating to climate change (Release Nos. 33-9106; 34-61469). The release focused on recent business and legal developments regarding climate change and advised companies to more carefully evaluate the impact these developments may have on their business and whether such impact should be disclosed. 


As a technical matter, an interpretive release by the SEC does not create new legal requirements. Instead, it furthers a policy objective by “clarifying” the applicability of current SEC rules. In this case, the relevant SEC rules require the disclosure of material items associated with the impact of climate change on a business and cover a company’s risk factors, business description, legal proceedings, and management discussion and analysis. 


While the SEC’s Chair, Mary Schapiro, has carefully noted that this interpretive release should not be construed as the SEC making a statement about the facts surrounding climate change or global warning, the release does acknowledge an increase in climate-related legislation and international accords, as well as changing business trends where environmental issues have the potential to create new risks or opportunities for companies. In fact, in the release, the SEC specifically provided the following examples of areas where climate change may trigger disclosure requirements:


  •  Impact of Legislation and Regulation:  When assessing potential disclosure obligations, a company should consider whether the impact of certain existing laws and regulations regarding climate change is material.  In certain circumstances, a company should also evaluate the potential impact of pending legislation and regulation related to this topic.
  • Impact of International Accords:  A company should consider, and disclose when material, the risks or effects on its business of international accords and treaties relating to climate change.
  • Indirect Consequences of Regulation or Business Trends:  Legal, technological, political and scientific developments regarding climate change may create new opportunities or risks for companies.  For instance, a company may face decreased demand for goods that produce significant greenhouse gas emissions or increased demand for goods that result in lower emissions than competing products. As such, a company should consider, for disclosure purposes, the actual or potential indirect consequences it may face due to climate change related regulatory or business trends.
  • Physical Impacts of Climate Change: Companies should also evaluate for disclosure purposes, the actual and potential material impacts of environmental matters on their business.[1]

SEC Commissioner, Luis Aguilar, in speech discussing the SEC’s interpretive release concerning climate change, provided further guidance. He cautioned that each company “should ensure that it has sufficient information regarding [its] greenhouse gas emissions and other operational matters to evaluate the likelihood of a material effect arising from the subject legislation or regulation.”[2] Additionally, the SEC has long reminded companies that in determining whether certain information is material, the company should err on the side of disclosure.

The guidance provided in the SEC’s interpretive release is effective immediately and should be considered during the preparation of all future public company annual reports and SEC filings.

[1] Interpretative Release “Commission Guidance Regarding Disclosure Related to Climate Change,” dated February 2, 2010, is available at:

[2] Speech by SEC Commissioner Luis A. Aguilar: Responding to Investors’ Requests for SEC Guidance on Disclosures of Risks Related to Climate Change, dated January 27, 2010, available at:


Posted on May 27, 2010 by Ridgway Hall

On May 12, 2010, EPA, with the support of six other federal agencies, issued a Strategy For Protecting and Restoring the Chesapeake Bay Watershed. The strategy document is a major milestone in an enormous multi-stakeholder exercise involving issues of science, law, policy and politics launched a year ago by President Obama. Executive Order 13508, 74 Fed. Reg. 23099, entitled “Chesapeake Bay Protection and Restoration,” recognized the unique ecological, economic, recreational and cultural value of the Bay, and the failure of federal and state efforts over the previous 25 years to reverse its serious degradation. The Order directed the seven federal agencies to work together to develop a strategic plan to restore the Bay to a healthy condition by 2025, in consultation with the six states whose lands are included in the Chesapeake Bay watershed and the District of Columbia, plus stakeholder groups, NGOs and concerned citizens among the 17 million people who live in the watershed. While the most relevant law in this effort is the Clean Water Act, other federal, state and local laws are also in play. This article briefly describes the problems faced by the Bay and then discusses the strategy for its restoration.

The Problem

The Chesapeake Bay is the largest estuary in North America and the third largest in the world. Water quality problems are particularly challenging because it is relatively shallow compared with the land mass—64,000 square miles—which drains into it. EPA has called it a “world-class ecological treasure that is home to several thousand species of plants and animals,” including migratory birds. Its production of crabs, oysters and other seafood, plus recreational uses and shipping, “make the Chesapeake Bay a multi-billion dollar economic driver for the mid-Atlantic.”


Over a century of pollution from heavy industrial, commercial, agricultural and other uses has resulted in serious degradation. The principal pollutants are nitrogen, phosphorus and sediment, which have prevented attainment of water quality standards for dissolved oxygen, clarity/underwater grasses and chlorophyll-a (a measure of algae levels). In the summer large “dead zones” spread out across the Bay where fish cannot live because the oxygen is depleted by decaying algae which bloom as a result of excess nutrient discharges.


For the past 25 years, despite a series of cleanup agreements among federal agencies and the Chesapeake Bay states, with leadership from EPA’s Chesapeake Bay Program established under Section 117 of the Clean Water Act, efforts to stem the pollution have been unsuccessful. Regulation has been weak and enforcement has been lax. Currently 89 of the 92 tidal segments of the Bay fail to meet one or more water quality standards.



The Strategy For Restoration

On May 12, 2009, President Obama issued Executive Order 13508 in response to widespread calls from many of the Bay states and citizens groups for federal leadership. The Order required the seven federal agencies with responsibility for the Chesapeake, including EPA and the Departments of Agriculture, Interior, Commerce (including NOAA), Defense, Transportation and Homeland Security, to develop reports on environmental conditions throughout the watershed, identify tools and resources to protect and restore water quality, wildlife habitat and adjacent lands, and develop a schedule for restoration and protection of these resources by 2025, including measurable 2-year milestones.


EPA Administrator Lisa Jackson is committed to restoration of the Bay and appointed as her Senior Advisor on the Chesapeake Bay and Anacostia River Charles (“Chuck”) Fox. Fox, a Bay sailor who previously served as EPA’s Assistant Administrator for Water under President Clinton as well as Secretary of the Maryland Department of Natural Resources, has been a key player in the implementation of the Executive Order.


The Strategy document issued on May 12 lays out a series of measurable objectives designed to achieve, among other things, sustainable and healthy populations of blue crabs, oysters, fish and other wildlife; restoration of degraded wetlands and creation of new wetlands and forest buffers along the Bay and its tributaries; protection of forests, farms and land that is naturally or historically important; expanded public access, recognizing that people will work to protect the things they enjoy; and an enhanced public awareness of the importance of a healthy Bay and watershed to the enjoyment and economic well-being of its citizens.


At the heart of the Strategy is restoration of water quality, based on the establishment of a total maximum daily load (TMDL)—actually a large number of TMDLs—under Section 303 of the CWA which will cover all 92 segments of the Bay and its tidal tributaries. Based on decades of data gathering and modeling, the final TMDL will be the largest in history. It will include “waste load allocations” for point sources and “load allocations” for non-point sources addressing the three pollutants of major concern: nitrogen, phosphorus and sediment. EPA seeks to finalize it by year end.


The TMDL allocations will be applied to point sources through NPDES permits, and to non-point sources through various state regulatory programs, all of which will be collectively embodied in Watershed Implementation Plans (WIPs) which each Bay state and the District of Columbia are already developing. The WIPs will be evolving documents, updated as experience is gained with their initial application. If states fail to adopt timely WIPs, or the WIPs are not adequate to achieve reasonable progress at two-year milestone intervals, EPA will write the WIP itself, and provide backup enforcement wherever state enforcement is lax.


Compliance challenges may be especially great for non-point sources. For example, EPA currently estimates that approximately 42% of nitrogen, 46% of phosphorus and 72% of sediment discharged to the Bay come from agricultural activities, most of which involve non-point sources such as farms. States currently require nutrient management plans and best management practices for most farms, but the enforcement tools are weak. Legislation is pending before the Senate and House to strengthen the Chesapeake Bay provision of the Clean Water Act, Section 117, but as of this writing the fate of that legislation is uncertain. Funding is available to assist farmers develop and implement improved practices through the U.S. Department of Agriculture and state agencies. Technical resources are available from those agencies and various NGOs and university programs. Given traditional suspicion of government programs, however, substantial community outreach and stakeholder involvement will be required to achieve the goals of the strategy.


EPA is also launching several related regulatory initiatives. These include more effective regulation of concentrated animal feeding operations (CAFOs) to reduce runoff from animal manure and process waste, expanded regulation of municipal separate storm sewer systems, supporting state and local regulation of septic systems, and developing nutrient trading programs and the use of offsets for new and expanded discharges. More rigorous regulation is being considered for stormwater runoff from impermeable surfaces and construction sites from which large quantities of sediment are washed into rivers and streams. To address air emissions of nitrogen which result in atmospheric deposition on the Bay, the Strategy proposes more stringent regulation of power plants and other sources of nitrogen to the air.


This brief summary does not address many elements of this massive Strategy. For more information, see the EPA Executive Order web site and EPA’s web site for the Chesapeake Bay TMDL. EPA and the Bay states are conducting public meetings and outreach efforts throughout the watershed.



The Chesapeake Bay Restoration Strategy will, among many other things, provide numerous opportunities for lawyers to provide counseling to those who will be subject to federal and state permitting and regulatory requirements driven by the TMDL and the related WIPs. The restoration effort provides many opportunities to find novel approaches outside the courtroom for resolving the problems and conflicts which will inevitably result during the course of implementation. Finally, much of this activity will provide models for addressing similar problems elsewhere around the country.

Just What We Need: More Community Engagement in Superfund Sites

Posted on May 26, 2010 by Seth Jaffe

Last week, EPA’s Office of Solid Waste and Emergency Response announced release of its Community Engagement Implementation Plan. Who could be against community engagement? It’s as American as apple pie. It’s environmental justice. It’s community input into decisions that affect the community. It’s transparency and open decision-making.


Call me a curmudgeon, but I’m against it. Study after study shows that, in terms of the actual risks posed by Superfund sites, we devote too many of our environmental protection dollars to Superfund sites, when we should be focusing on air and water. Why do we keep doing this? Because the community demands it. As Peter Sandman has noted, perceptions of risk are driven only partly by the actual hazard posed. To a significant degree, those perceptions are more driven by outrage over the situation. In some circumstances, what Sandman calls outrage management makes sense, but I’m skeptical that EPA’s community engagement initiative is really about outrage management.


In any case, here’s the public policy question of the day. Does it really make sense to spend scarce environmental protection resources, not to reduce risk, but to reduce outrage?

BNSF No Big Deal, says U. S. District Court

Posted on May 25, 2010 by Rick Glick

The U. S. District Court for the Eastern District of California has denied reconsideration of its pre-BNSF order finding defendants jointly and severally liable under CERCLA. U. S. v. Iron Mountain Mines. Defendants had argued that the Supreme Court in the BNSF case mandated the district courts to consider grounds for reasonable apportionment. They had earlier argued for apportionment before BNSF and then cited the Supreme Court’s decision as an intervening change of law that entitles it to reconsideration.


The court disagreed, finding that BNSF did not change the law, rather it simply reaffirmed existing law and applied it to a specific set of facts. It seems strange that the Supreme Court would grant cert in a case where the law is settled just to apply the facts. In fact, the working presumption in CERCLA litigation had been that joint and several liability is the rule and apportionment is rare, even though CERCLA doesn’t say that. Most practitioners saw BNSF as a game changer, reopening the possibility of a hard look given to reasonable bases for apportionment in mediated allocations and in court. But the District Court followed the lead of the Justice Department, which has consistently said BNSF marks no departure from standard CERCLA jurisprudence.


It sure would be great if the Supreme Court would provide some clarity in its environmental decisions. Few would think Rapanos helped much with our understanding of the Clean Water Act, and now we need to muddle through a certain lack of precision in representing clients in Superfund matters. While BNSF opens the window, it remains to be seen whether the opening is just a crack or will really let some fresh air in.

Fighting the Last War: The Relevance (and Irrelevance) of the Exxon Valdez Spill to the Deepwater Horizon Spill

Posted on May 24, 2010 by Bradley Marten

A number of us in the Pacific Northwest can remember the phone call that came in the spring of 1989 telling us to come to Alaska. There had been an oil spill, the caller said, and we had better get up there right away. We packed up and left, sometimes with just a couple of sets of clothes, and ended up staying for months, or years. We were lawyers, not scientists, and we could neither contain the spill nor predict its impacts. What we could do – or thought we could do – was assess blame and assign damages. That turned out to be harder than any of us imagined.

Nearly twenty years of litigation followed the Exxon Valdez spill, and there was not a single case, but many. By understanding some of the history of the Exxon Valdez cases, one can appreciate what the lawyers working on the Deepwater Horizon case have in front of them. At the same time, the many differences between the two spills suggest that history will not repeat itself. The legal response to the Deepwater Horizon case, like the cleanup response being carried out in the Gulf at this time, is likely to be far more complex, involve even more parties, and possibly even more time. By way of example:

  • The federal Oil Pollution Act of 1990 ("OPA 90"), one of the principal laws likely to be invoked in response to the Deepwater Horizon, was enacted after (indeed, in response to) the Exxon Valdez. While the elements of the liability case against responsible parties under OPA 90 are similar to those asserted under the Clean Water Act in the Exxon case, OPA 90 allows plaintiffs to potentially recover a broader range of compensatory damages, including: damages to real or personal property; subsistence use; federal, state, and local tax revenues; lost profits and earning capacity; and the cost of providing additional public services resulting from the spill. In that sense, the law is more complex now than it was at the time of the Exxon Valdez spill, involves more parties and more and different potential claims. There is also very little case law decided under it;
  • The causation issues in the Exxon Valdez case were far simpler than in the present spill. There was no question as to the cause of the 1989 spill into Prince William Sound – a tanker hit a reef. In the case of the Deepwater Horizon, on the other hand, press reports and briefings by BP point to a chain of events, each of which may have contributed to the explosion and to the still mounting damages;
  • Unlike the Clean Water Act, OPA 90 expressly allows for contribution claims among responsible parties that were not available under the Clean Water Act. Therefore, the party that initially responds to the spill (BP) may have statutory claims that they choose to assert against other responsible parties at some future time;
  • The Exxon case involved a single state (Alaska) and the federal government (and Alaska Native corporations). By comparison, several states have already become involved in the Deepwater Horizon spill (including Louisiana, Mississippi and Alabama), raising potential jurisdictional questions and possible conflicting claims among the governmental plaintiffs;
  • In oil spill cases, one of the potentially largest claims the government can bring is for natural resource damages. In order to do so, however, the government has to establish a "baseline" of pre-spill conditions. This is much more difficult to do in some of the ports and commercial areas along the Gulf Coast that are already impacted by hydrocarbons, as opposed to the relatively pristine waters of Alaska's Prince William Sound.

II. The Exxon Valdez Litigation

Against this backdrop, it may be helpful to review the history of the litigation that began in March, 1989 with the grounding of the oil tanker Exxon Valdez on Bligh Reef in Prince William Sound, Alaska. Estimates of the quantity of oil spilled range from 10.8 million to 30 million gallons. More than 1,200 miles of coastline were contaminated, 250,000 birds were killed, and 330 civil lawsuits were filed.

  • Criminal Prosecution

The state of Alaska criminally prosecuted the Exxon Valdez’s captain, Joe Hazelwood. The United States prosecuted Exxon for various environmental crimes, including criminal violations of the Clean Water Act, the Refuse Act, and the Migratory Bird Treaty Act. Exxon Corporation pled guilty to one count of violating the Migratory Bird Treaty Act, and Exxon Shipping pled guilty to one count each of violating the Clean Water Act, the Refuse Act, and the Migratory Bird Treaty Act. The corporations were jointly fined $25 million and were ordered to pay restitution of $100 million.

  • Civil Litigation: The Natural Resource Damage Claims

The United States and the state of Alaska sued Exxon for natural resource damages. That litigation was settled by entry of a consent decree under which Exxon agreed to pay $900 million over a period of ten years. The money was used at the direction of the Oil Spill Trustee Council for species and habitat restoration and recovery. The consent decree contain a reopener provision that allowed the governments to make additional claims of up to $100 million for natural resource damages not known when the settlements were reached.

In 2006 the Department of Justice and the State of Alaska asserted a claim against Exxon under the reopener provision, seeking payment of $92 million clean up oil the governments contend remains in the environment from the 1989 spill. Exxon responded that the nearly 350 studies that have been conducted demonstrate that the spill has left no lingering damages in Prince William Sound, and that the governments’ demands do not satisfy the requirements of the settlement agreement. No case has yet been filed.


  • The Private Party Claims

Most of the private civil lawsuits were consolidated before Judge H. Russell Holland in the United States District Court for the District of Alaska. The damages trial proceeded in phases: Phase I determined whether Exxon was liable for punitive damages, and held that it was. Phase II determined the amount of compensatory damages owed to the plaintiffs. Phase III determined the amount of punitive damages to award to the plaintiffs. Subsequent proceedings adjudicated the claims of members of the fifty classes of claimants in the consolidated class action lawsuit.
On August 11, 1994, following the second phase of the trial, the jury returned a verdict of compensatory damages against Exxon of nearly $287 million. On September 16, 1994, following the third phase of the trial, the jury returned a $5 billion punitive damages verdict against Exxon. Exxon appealed, marking the start of an additional fifteen years of litigation and three appeals to the Ninth Circuit and, ultimately, the Supreme Court.

In the first appeal, the Ninth Circuit remanded the punitive damage award to the district court to be reconsidered in light of intervening decisions by the United States Supreme Court addressing the constitutionality of punitive damage awards. In BMW v. Gore and Cooper Industries v. Leatherman Tools, the Supreme Court articulated factors a court must consider when reviewing a punitive damage award: the reprehensibility of the defendant’s conduct; the ration of the award to the harm inflicted on the plaintiff; and the difference between the award and civil and criminal penalties in comparable cases. The district court conducted an extensive analysis of those factors, and concluded the actual harm to plaintiffs was more than $500 million and a ratio of punitive damages to harm was 10 to 1, supporting the original $5 billion award. Nonetheless, the court reduced the punitive damages to $4 billion, to conform to what it viewed as the Ninth Circuit’s mandate. Exxon appealed.

While the second appeal was pending, the Supreme Court issued another punitive damages opinion, State Farm Mut. Auto Ins. Co. v. Campbell. State Farm instructed courts to weigh five specific considerations in calculating punitive damages, and “strongly indicated the proportion of punitive damages to harm could generally not exceed a ration of 9 to 1.” Those five factors are (1) whether the harm caused was physical as opposed to economic; (2) whether the conduct causing the plaintiff’s harm showed “indifference to or a reckless disregard of the health or safety of others;” (3) whether the “target of the conduct” was financially vulnerable; (4) whether the defendant’s conduct involved repeated actions as opposed to an isolated incident; and (5) whether the harm caused was the result of “intentional malice, trickery, or deceit, or mere accident.” The Ninth Circuit summarily remanded the second appeal of the punitive damage award to the district court for recalculation in light of State Farm. On remand, the district court again determined actual harm to be $513.1 million and increased the punitive damage award to $4.5 billion, a ratio of just under 9:1. Exxon appealed again, and this time, the plaintiffs cross-appealed, seeking reinstatement of the $5 billion award.

In the third appeal, Exxon argued that all of its settlement and other pre-judgment compensatory payments to the plaintiffs, which totaled approximately $493 million, had to be subtracted from the more than $500 million in actual harm before calculating the ratio of punitive damages to actual harm. As a result, Exxon argued, the measure of damages would be reduced to $20.3 million. Applying what it contended was the appropriate ratio, 1:1, Exxon argued that a punitive damage award should be capped at $25 million. This time, the Ninth Circuit accepted the District Court’s approximation of $500 million as the amount of actual harm, but in determining the appropriate ratio of punitive damages to actual damages, took into account the fact that while Exxon’s conduct (its “reckless decision to risk the livelihood of thousands by placing a relapsed alcoholic in command of a supertanker”) was particularly egregious and the economic damages significant, it was not intentional. And, as a mitigating factor, Exxon promptly took steps to ameliorate the harm. Thus, Exxon’s conduct, “though inexcusable,” warranted a ratio of 5:1 rather than 9:1, resulting in a punitive damage award of $2.5 billion dollars.

The parties then appealed to the United States Supreme Court. In 2008, the Supreme Court reversed the Ninth Circuit and limited the punitive damage claim to a 1:1 ratio, or roughly $507 million. However, the high court declined to decide whether Exxon was required to pay interest on the amount of the award, and sent the issue back to the Ninth Circuit. Two months later, the appeals court held that Exxon was required to pay the interest, dating back to 1996, roughly doubling the amount of the final award. The average award to the 33,000 claimants came to about $15,000 -- roughly 20% of the amount that was awarded by the jury in 1994.

III. What Happens Next

Press reports indicate that a number of economic damage cases have already been filed against BP, Halliburton and Transocean over the Deepwater Horizon spill, and there are almost certain to be many more, depending on the impact of the spill. The government has yet to file litigation, but it can be expected to do so, under a variety of federal laws including OPA, the Clean Water Act, the Refuse Act, and the Migratory Bird Treaty Act, among others. There will be a lengthy and expensive natural resource damage assessment that the defendants will be expected to pay for. There are potential insurance claims, potential shareholder claims, and possibly contractual and statutory contribution claims between the responsible parties, among others. And if the sum of these were not enough to challenge even the most battle-tested lawyers on all sides, there is the reputational and political overlay which can dominate the legal and scientific issues at play, including Congressional hearings. A spill the size of this one not only impacts BP and its partners, but the entire industry. It also will test the legal system and the brightest minds in it.

For more information regarding the legal impacts of the Gulf spill, please contact Brad Marten or any other member of Marten Law’s Energy, Climate Change or Waste Cleanup practices.


Posted on May 12, 2010 by Larry Ausherman


On May 4, 2010, EPA released its proposed rule to regulate disposal and management of coal combustion residuals (“CCRs”) from coal-fired power plants. The 563 page proposal presents for public comment two alternative approaches. In one approach, EPA would regulate CCRs as a new category of “special wastes” under Subtitle C of RCRA when they are destined for disposal in landfills or surface impoundments. Under the alternative approach, EPA would use Subtitle D of RCRA to set performance standards for disposal of CCRs in landfills and impoundments that would be enforced principally by States. Under both proposals, beneficially used CCRs would be exempt from hazardous waste regulation under RCRA. Neither proposal would have EPA regulate placement of CCRs in mines or non-minefill uses of CCRs at coal mine sites.


What are CCRs?

CCRs are residual materials that remain after combustion of coal to generate electric power. This material is also sometimes referred to as coal ash, coal combustion waste, or coal combustion byproducts. Large volumes of CCRs are generated by power plants in the United States. Some CCRs are beneficially used in other products or processes, some are returned to mines as reclamation material or for non-minefill uses and the rest is disposed at landfills.

How are CCRs Regulated Now?

In August 1993 and May 2000, EPA considered whether to regulate CCRs as a hazardous waste under Subtitle C of RCRA, and determined not to do so. Instead, it applied the Bevill Amendment exception (for mining activities) to CCRs and left open the possibility that States may regulate disposal of CCRs. The Office of Surface Mining in the United States Department of the Interior (“OSM”) has authority to regulate placement of CCRs in mines as part of coal mine reclamation.


Why is EPA Revisiting its Previous Determinations Not To Regulate CCRs Under RCRA, Subtitle C?

In December 2008, in Kingston, Tennessee, a retaining wall of a TVA surface impoundment used for disposal of CCRs breached, and CCRs saturated with water from the impoundment were released. The release prompted renewed scrutiny of CCR disposal practices and, in large part, prompted EPA’s decision to revisit previous determinations not to regulate CCRs. EPA’s re-evaluation of CCR disposal since the Kingston release has prompted substantial debate resulting in the delayed announcement of EPA’s May 4, 2010 proposal.


Two Options for Regulation.

In light of strongly held opposing views about regulation of CCRs and the EPA’s desire to avoid further delay in issuing a proposed rule, EPA’s proposal is in the somewhat unusual format of two alternative options. After a 90 day public comment, EPA will decide upon an approach to regulation.


Under the more stringent of the two options, EPA would reverse its previous Bevill Amendment determination, address CCRs as a “special wastes” under RCRA Subtitle C, and regulate the disposal of CCRs in landfills or surface impoundments. “Special wastes” would be a new waste category that would be subject to some, but not all, of Subtitle C requirements applicable to hazardous waste. The Subtitle C option would regulate CCRs from the point of generation to final disposal and would include regulation of siting, liners, run-on and run-off controls, ground water monitoring, fugitive dust controls, financial assurance, corrective action and closure. The Subtitle C approach is favored by environmental groups but opposed by electric power generators because it would significantly increase CCR disposal costs.


The less stringent alternative regulatory option proposed by EPA would leave the Agency’s previous Bevill determination in place so that CCRs would not be regulated under Subtitle C of RCRA. However, CCRs disposed of in surface impoundment or landfills would be subject to RCRA Subtitle D. This option would not require permits from EPA, and requirements would be enforced primarily by States rather than EPA.



Certain uses and disposals of CCRs are not covered by EPA’s proposed rule making. First, EPA is not proposing to change the existing regulatory exemption from hazardous waste regulations for beneficially used CCRs. Examples of beneficial uses of CCRs may be road construction, agriculture, and building products. EPA is seeking comment on potential refinements for certain beneficial uses. Second, EPA is not proposing to address placement of CCRs in coal mines or non-minefill uses of CCRs at coal mines. Instead, OSM, in consultation with EPA, will consider recommendations of the National Research Council and take the lead in developing national standards for placement of CCRs at coal mines. Third, EPA has not proposed to revise its previous Bevill determination for CCRs generated by non-utilities.


Public Comment.

A 90 day public comment period will begin when the proposed rule is published in the Federal Register. Comments can be submitted to EPA, identified by docket ID No. EPA-HQ-RCRA-2009-0640.

Interview: Obama Administration Environmental Initiatives & Priorities

Posted on May 10, 2010 by Rachael Bunday

On March 4th and March 9th, 2010, Angus Macbeth conducted interviews of Robert Sussman and Igancia Moreno regarding the Obama Administration Environmental Initiatives and Priorities.

Robert Sussman is Senior Policy Counsel for the United States EPA and Ignacia Moreno is Assistant to the Attorney General, Environment and Natural Resources Division, Department of Justice.

Audio of the two interviews is accessible by clicking the links below: 

Robert Sussman - March 4, 2010

Ignacia Moreno - March 9, 2010

Energizing Brownfields

Posted on May 7, 2010 by George von Stamwitz

It has always amused me how many people are involved with Brownfields work as compared to how few projects have been completed. It is tough to make the economics work on a Brownfield development in the best of times. Thanks to clean energy rules and incentives this may be changing.


Brownfields and clean energy have several synergies. Brownfields are often in industrial corridors, with great infrastructure and proximity to electrical grids. Biomass projects in particular need access to efficient transportation networks in order to move large volumes of material. Clean energy projects such as solar, wind and biomass plants work well with risk based remediation and institutional controls required for cost effective risk management at a Brownfields sites.

Add to these synergies a vast array of incentives, mandatory quotas and grants for clean energy and we just may have a path to economic viability for some Brownfields projects. EPA has a task force known as ER3 to help facilitate such projects. Keep your eye on a project in Charlotte, North Carolina known as ReVenture Park which seems destined to put wind energy, wastewater treatment and a biomass plant on a large, complex CERCLA/RCRA site.


Posted on May 6, 2010 by Mark Walker

By now, everyone is familiar with "Climategate", the scandal surrounding the hacked e-mails from the Climate Research Unit (CRU) at the University of East Anglia in England. The inner workings of CRU are significant because the CRU is responsible for preparing the land temperature records upon which most of the climate change studies are based and which, more importantly, form the foundation for the assessment by the Intergovernmental Panel on Climate Change (IPCC) that manmade greenhouse gas emissions are responsible for global warming. The e-mails at issue include many e-mails which had previously been requested by numerous Freedom of Information requests, but which East Anglia had refused to produce, including e-mails relating to the preparation of the IPCC 2007 Fourth Assessment Report.

The CRU Temperature "Adjustments"

Most people probably think that land temperature records are the product of the rather mundane ministerial task of collecting and reporting actual temperature readings from weather stations around the world. However, there are numerous "adjustments" to the actual temperature readings which are made by CRU. There are adjustments made to account for the different times of day that the readings are taken. In addition, it is well recognized that urban areas artificially increase the measured temperature because materials like concrete, asphalt and metal structures collect and retain heat during the day and release the heat during the night. This artifact, known as the "urban heat index" (UHI), must be accounted for in the land temperature records. The magnitude of the proper adjustments for UHI are the subject of intense scientific debate, and the extent of any adjustments made for UHI serve to reduce global warming attributed to manmade greenhouse gases. Scientists that have studied UHI have also made subjective calls as to which weather stations to include and exclude in their studies, thereby injecting another "adjustment" into the equation. Numerous Freedom of Information requests had been made to and resisted by East Anglia for the underlying raw temperature data and the UHI adjustments that CRU made to such data, as well as requests for the underlying data upon which the Director of CRU, Dr. Phil Jones, had based his previous UHI studies.

EPA Endangerment Finding Based Upon IPCC Assessments

As one of the foundational components of the IPCC's assessments, the accuracy of CRU's temperature records have far reaching implications. The IPCC assessments were relied upon by the United States Supreme Court in Massachusetts v. EPA, and were a cornerstone of the EPA's Endangerment Finding in response to Massachusetts.


Commonwealth of Virginia's Challenge to Endangerment Finding

Although there have been numerous challenges to EPA's Endangerment Finding, several have specifically raised Climategate as the basis for their challenges. Noteworthy are the separate challenges filed by Virginia and Texas. In its challenge, Virginia claims that the Climategate e-mails demonstrate that the, "CRU scientists questioned the reliability of their own data, the methodologies used in developing and analyzing such data, and the conclusions based thereon." Virginia maintains that the EPA had a duty to independently investigate and verify the accuracy of the CRU temperature records upon which most of the climate change research and IPCC assessments are based. In addition, Virginia claims that the, "EPA substantially ceded its obligation to make a judgment whether GHGs may endanger public health and welfare to the IPCC, an international body that is not subject to U.S. data quality and transparency standards."


State of Texas' Challenge to Endangerment Finding

Texas' 38 page Petition for Reconsideration takes the drama and intrigue to the next level, painstakingly discussing the Climategate e-mails, the context in which they were made, and the conclusions which Texas maintains should be drawn therefrom:
"Previously private email exchanges among top IPCC climatologists reveal an entrenched group of activists focused less on reaching an objective scientific conclusion than on achieving their desired outcome. The scientists worked to prevent contravening studies from being published, colluded to hide research flaws, and collaborated to obstruct the public's right to public information under open records laws."

The future of Climategate in the courts is uncertain. It may eventually be viewed as the event that exposed the political agenda behind some of the climate change "science", or it may be viewed as a tempest in a teapot. In any event, its inclusion in these legal proceedings ensures that Climategate will for the foreseeable future be included in the ongoing climate debate and certainly that it will survive beyond the usual 24 to 72 hour news cycle.

Climate Change Work Group Phase Two - EPA Searches for Energy Efficiency and Innovation Using an Unlikely Tool

Posted on May 5, 2010 by Robert Wyman

EPA is stuck between a rock and a hard place in using the Clean Air Act to regulate greenhouse gas emissions. Having made an endangerment finding and issued final motor vehicle regulations, EPA soon (commencing January 2, 2011) must implement its Prevention of Significant Deterioration (PSD) preconstruction review program for stationary sources as one or more greenhouse gases become “regulated pollutants” under the statute. But the PSD program is hardly an ideal tool for the job, and may indeed be one of the worst.


Recognizing the difficulty of its task, in late 2009 EPA commissioned a Climate Change Work Group to advise it regarding how best to implement the PSD permit program and how to define Best Available Control Technology (BACT) for sources of greenhouse gas emissions. This January the Work Group issued a Phase One report that contained some important but relatively basic recommendations.

Now the Agency has launched Phase Two of the Work Group effort. In an April 9 letter to Work Group Co-Chairs, EPA Assistant Administrator Gina McCarthy asked the Work Group to focus on two of the most important strategies for reducing greenhouse gas emissions – energy efficiency and innovation.


Most seasoned observers recognize that the PSD process currently discourages energy efficiency investments. That is because PSD rules assume that more efficient units will be used more and that such projects could cause net emission increases that trigger PSD review and require the installation of BACT. The PSD process thus significantly delays and adds cost to many energy efficiency projects. As a result, many efficiency upgrades are foregone for fear that they will trigger the PSD process. This is tragic because efficiency upgrades offer the greatest potential for near-term and cost-effective greenhouse gas reductions. See, e.g., Unlocking Energy Efficiency in the U.S. Economy (July 2009).


The Work Group’s task of encouragingenergy efficiency by using the instrument most responsible for chilling such investments is the policy equivalent of placing a square peg into a round hole. If the Work Group recommends expediting or exempting from PSD review appropriate efficiency projects, then there is some hope that EPA can use the program to capture as-yet-untapped efficiency and innovation opportunities that currently exist. If, on the other hand, the Work Group, and ultimately EPA, remain unwilling to clear the regulatory costs and hurdles that PSD customarily imposes, then the opportunity will be lost.


EPA has asked the Work Group to provide its recommendations by no later than mid July. So stay tuned.

Groundwater Cleanups - What If Drinking Water Standards Cannot Be Met?

Posted on April 20, 2010 by Charles Tisdale

EPA began the CERCLA program in 1980 with the view that all sites could be remediated to stringent cleanup standards, including drinking water standards for contaminated groundwater. The primary remedy selected for groundwater contamination was extraction and treatment. Consent Orders typically required groundwater remediation to be conducted for 30 years, if necessary, to achieve drinking water standards.

            New technologies are being used to remediate groundwater and there has been much progress. However, there are still sites where it is clear that drinking water standards will not be met in 30 years and where the cost of continued treatment produces only limited reduction of contaminant levels.  CERCLA is 30 years old and there are many case histories to use in the evolution of policies developed when the program began. 

            EPA provides relief for contaminated groundwater that exceeds drinking water standards through technical impracticability waivers, alternative concentration limits and monitored natural attenuation. However, these mechanisms have not provided the relief that many expected at sites where the facts show that standards will not be met.

            EPA and states have changed their original position with respect to cleanup of soil to stringent limits in all locations. Environmental agencies now look at issues of risk and actual exposure to contaminated soil rather than theoretical exposure. Some states have developed new policies with respect to groundwater remediation which include more thorough considerations of risk and actual exposure.

            There is growing concern over the availability of water, even in areas of the United States which have not experienced water supply problems in the past. Thus, there are strong reasons for remediating contaminated groundwater to drinking water standards. However, there are a number of sites where long term remediation will not achieve drinking water standards.

            Is there a need for new policies and procedures for sites where contamination levels can be reduced but drinking water standards will not be achieved? What elements are appropriate for a new policy? Should there be a procedure for environmental agencies to restrict the use of groundwater where there is no risk to actual drinking water supplies? Should EPA provide guidance to encourage the use of technical impracticability for these sites? Should the agency consider a policy to control the plume of contamination rather than requiring drinking water standards to be met throughout the contaminated groundwater?

In Search of Mitigation: Savannah Harbor Deepening Project

Posted on April 15, 2010 by Drew Ernst

With the anticipated Panama Canal expansion (expected to be completed by 2014), the Port of Savannah, Georgia is preparing for the new super-sized container vessels coming its way. Part of that preparation includes a proposed harbor deepening project (“Savannah Project”). The Savannah Project carries with it a price tag of $588,000,000 with a sizable portion of this amount earmarked for mitigation.


The primary component of the Savannah Project is deepening the existing entrance channel from forty-two feet up to forty-eight feet. The concern with any large-scale project like this, however, is the impact it will have on the surrounding environment and how that impact can be appropriately managed and mitigated. Adding to the mix is the tremendous economic impact the Savannah Harbor has on the entire State of Georgia. Georgia's deepwater ports support over 286,000 jobs and contribute 14.9 billion dollars in income to the State of Georgia.


Mitigation is both a hot topic in environmental law, and in many cases, a moving target. The Savannah Project provides a unique case study for both the process of approving a large-scale project like the Savannah Project and the creative and innovative ways mitigation can be discussed and hopefully achieved. 


With respect to the Project, the concomitant mitigation plan includes mitigation for cultural resources, natural resources mitigation, an impact avoidance plan, and in an unusual move, a monitoring and adaptive management plan. Primary concerns include the potential loss of freshwater marsh due to intrusion and an increase in salinity levels; potentially decreased dissolved oxygen levels in the Savannah River; potential harm to the Striped Bass and Shortnose Sturgeon population; and cadmium levels in dredged sediment. As an example, without mitigation of any kind, deepening the channel to 48 feet would impact approximately 1,212 acres of freshwater wetlands. With mitigation, the impact could be limited to 337 acres.


Proposed mitigation measures include altering the flow of fresh and saltwater through a variety of cuts and contouring, construction of a fish bypass structure, closing of selected channels connecting the Savannah River and its tributaries and opening cuts between various adjacent waterways. To specifically address concerns about dissolved oxygen, proposed mitigation efforts call for oxygen injection in several places in the Savannah River through a “bubbler” system made up of injection cones. Each cone would inject up to 15,000 pounds of oxygen into the river per day.


Further mitigation efforts call for the purchase and/or preservation of freshwater wetlands in the upper harbor basin to offset the impact of the Savannah Project on existing freshwater estuaries and the creation of a new 80.5 acres of saltwater marsh to reclaim marshland which will be lost. Further, in a somewhat unusual move, the adaptive management plan would monitor the success of mitigation not only during the construction phase of the Savannah Project, but for up to five years after it is completed. 


The Savannah Project is not without opposition. Beginning with a lawsuit filed in March 2000 to forestall decision-making on the Savannah Project (which was eventually dismissed), critics remain concerned that the Savannah Project will not be appropriately mitigated and are not convinced that mitigation success can be measured in a meaningful way. How the Savannah Project will shape and develop after the draft EIS is issued in the next few months is yet to be seen. However, all involved will continue to search for mitigation.

A full overview of the Savannah Project and its proposed mitigation efforts can be found here.

EPA Completes Six-Year Review of National Primary Drinking Water Regulations

Posted on April 14, 2010 by Jarred O. Taylor, II

EPA recently completed a six year review of the National Primary Drinking Water Regulations (NPDWRs) “to identify those NPDWRs for which current health effects assessments, changes in technology, and/or other factors provide a health or technical basis to support a regulatory revision that will support or strengthen public health protection.” This six-year review is mandated by the Safe Drinking Water Act. The first six year review was completed in 2003. The sixty-plus page March 29, 2010 Federal Register issuance of the notice and request for comments can be found here.


EPA reviewed the 85 NPDWRs, included in the Federal Register Statement a detailed explanation for 71, and is proposing that four of them be considered for revision. Not surprisingly, the proposed revisions are to decrease the maximum contaminant level (MCL) closer to the maximum contaminant level goal (MCLG). As a reminder, the MCLG is “set at the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety.” The MCL, a term with which many are more familiar, is the highest allowed level of a contaminant in water delivered to one using a public water system, and is supposed to be as close to the MCLG as possible. MCLs, however, are not used by regulators just to judge official public drinking water systems, but also groundwater. If you are involved at a site where cleanup standards have been set, or are in the process of being set, for these four NPDWRs, be prepared for some re-negotiation. And, it will not be long after any such changes are made that many states will follow.


The primary reason an MCL is higher than an MCLG is technology—our testing methods and analytical abilities cannot detect as low as the MCLG, many of which are zero—aka the practical quantitation limit (PQL). Thus, one of the pieces of EPA’s six year review was whether technology had advanced, with sufficient confidence, to allow a reduction in the MCL closer to the MCLG.


The four contaminants EPA is proposing receive revised NPDWRs are acrylamide, epichlorohydrin, and two more common contaminants with which most of us have run into before—tetrachloroethylene (PCE), and tricholorethylene (TCE). PCE and TCE received almost identical recommendations, and both have a current MCLG of 0.0, and an MCL of 0.005 mg/L because of PQL. EPA made no final recommendation on PCE and TCE because the risk assessment for these two contaminants was still in progress and, thus, EPA could not determine whether revised MCLs would gain potential health benefits. However, EPA concluded that advancements in analytical and treatment technologies were such that “analytical feasibility could be as much as ten times lower [than the current MCL] (~ 0.0005 mg/L)”, noting that its review also concluded that levels of PCE and TCE in the environment at this reduced level are “relatively widespread”. EPA is giving stakeholders the opportunity to submit information to it about what laboratories “can reliably and consistently achieve.”


Stay tuned—technology’s exponential increase in our ability to detect smaller and smaller concentrations of contaminants in the environment may very well exponentially increase treatment costs and higher costs at cleanup sites. Whether health risks decrease sufficiently from driving down MCLs is yet to be determined, but the writing appears on the wall for now.

BLM Suspends Sixty-One Oil and Gas Leases to Perform Climate Change and Greenhouse Gas Analyses in Montana

Posted on April 2, 2010 by James Spaanstra

Authored by:

Robert D. Comer
James R. Spaanstra

Recently, the Bureau of Land Management ("BLM") and several Montana environmental groups agreed to suspend 61 Montana oil and gas leases as settlement of a case challenging lease issuance for failure to consider climate change effects. The leases, which had been issued, were suspended while BLM conducts additional analysis of greenhouse gas fugitive emissions and climate change impacts under the National Environmental Policy Act. As part of the settlement, BLM also asserts "authority to void or terminate any lease, if it determines upon review that such an action is appropriate.

On March 18, 2010, Judge Molloy of the United States District Court for the District of Montana entered an order dismissing the case based on the settlement agreement, despite the absence of the oil and gas industry from the settlement discussions. BLM and the environmentalist parties are seeking to keep confidential the deliberations that led to the settlement. This stands in contrast to prior positions taken by the United States regarding the release of settlement discussion documents under the Freedom of Information Act (FOIA) pursuant to the U.S. Supreme Court Klamath decision in 2000.

Unlike the 77 Utah leases that were voided by BLM in 2009, the agency did not admit to error in the NEPA process leading to issuance of the leases. The takeaway from these BLM actions is to make sure that your company has solid NEPA analysis that fully considers climate change and greenhouse gas issues, including those resulting from production and gathering operation fugitive emissions, when applying for leases and APDs. The willingness to suspend or void leases represents a new chapter in available remedies BLM is willing to use, whereby even already issued leases may now be at risk. Click here to review the settlement and click here to review the order.

BLM Suspends Sixty-One Oil and Gas Leases to Perform Climate Change and Greenhouse Gas Analyses in Montana

Posted on April 2, 2010 by James Spaanstra

Authored by:

Robert D. Comer
James R. Spaanstra

Recently, the Bureau of Land Management ("BLM") and several Montana environmental groups agreed to suspend 61 Montana oil and gas leases as settlement of a case challenging lease issuance for failure to consider climate change effects. The leases, which had been issued, were suspended while BLM conducts additional analysis of greenhouse gas fugitive emissions and climate change impacts under the National Environmental Policy Act. As part of the settlement, BLM also asserts "authority to void or terminate any lease, if it determines upon review that such an action is appropriate.

On March 18, 2010, Judge Molloy of the United States District Court for the District of Montana entered an order dismissing the case based on the settlement agreement, despite the absence of the oil and gas industry from the settlement discussions. BLM and the environmentalist parties are seeking to keep confidential the deliberations that led to the settlement. This stands in contrast to prior positions taken by the United States regarding the release of settlement discussion documents under the Freedom of Information Act (FOIA) pursuant to the U.S. Supreme Court Klamath decision in 2000.

Unlike the 77 Utah leases that were voided by BLM in 2009, the agency did not admit to error in the NEPA process leading to issuance of the leases. The takeaway from these BLM actions is to make sure that your company has solid NEPA analysis that fully considers climate change and greenhouse gas issues, including those resulting from production and gathering operation fugitive emissions, when applying for leases and APDs. The willingness to suspend or void leases represents a new chapter in available remedies BLM is willing to use, whereby even already issued leases may now be at risk. Click here to review the settlement and click here to review the order.

Dredging of Delaware River Allowed to Begin ... Will It be Completed?

Posted on March 24, 2010 by Robert Whetzel

On March 1, 2010, the Army Corps of Engineers began to dredge a section of the Delaware River to deepen the shipping channel that services ports as far north as Philadelphia and Camden. While not a remarkable event as yearly maintenance dredging occurs, the dredging of the River to a lower depth was preceded by more than twenty years of debate, administrative actions and litigation surrounding the need to deepen the channel. Yet, even as the dredging takes place, the fight continues, as the Governor of New Jersey has pledged to oppose the channel deepening on economic and environmental grounds.

Delaware Sues to Enjoin the Corps

Litigation surrounding the dredging ensued earlier this year in the United States District Court for the District of Delaware after the Corps decided to proceed with the deepening project despite not having received all state permits and approvals to do so. Before proceeding, the Corps found that Delaware had refused to provide one such permit in a timely and responsible manner, thereby interfering with its authority to maintain navigation as directed by Congress, and concluded that its actions would conform to the applicable State Implementation Plans, pending the purchase of emission reduction credits.

The State of Delaware Department of Natural Resources and Environmental Control (“DNREC”) sought to enjoin the Corps from proceeding with the deepening project until the Corps demonstrated its compliance with all applicable state and federal requirements, alleging violations of the Clean Water Act, Clean Air Act, Coastal Zone Management Act and the state regulatory regimes associated with these statutes.

The District Court Decision

The District Court analyzed DNREC’s preliminary injunction motion under the Winter v. Natural Resources Defense Council, Inc., --U.S.--, 129 S. Ct. 365, 172 L.Ed. 2d 249 (2008), standard of (i) likelihood of success on the merits, (ii) likelihood of irreparable harm, (iii) balancing of the equities and (iv) the public interest. For likelihood of success on the merits, the court analyzed each alleged violation within the strictures of the Administrative Procedures Act.

DNREC first alleged that, under Section 313(a) of the Clean Water Act, the Corps’ sovereign immunity with respect to the project had been explicitly waived, subjecting it to the State’s regulatory process by which it must obtain the necessary permit prior to commencing construction. The court found that the Section 404(t) more limited waiver specifically governing discharge of dredged mater governed the Corps’ activities for the project. This meant that the Corps would be subject to the State’s administrative requirements so long as its authority to maintain navigation remained unimpaired. The Corps, however, had already made a finding that DNREC’s delay impaired its authority, and the court held that this finding, which was afforded great deference, was not arbitrary or capricious.

Addressing the Clean Air Act allegations, the court analyzed the sufficiency of the Corps determination that the project conformed to the applicable SIPs, focusing on the Corps’ choice to purchase ERCs as a mitigation measure to demonstrate conformity. The court found that absent from the conformity determination was an enforceable measure to obtain the ERCs. Without a specific source for and amount of ERCs, the record did not support that the Corps made a rational determination of conformity.

DNREC next argued that the Corps failed to certify to its “satisfaction” that the project was consistent with the Delaware Coastal Management Program as required under the Coastal Zone Management Act. While DNREC had initially concurred with the Corps consistency determination, it claimed that substantial changes to the project mandated that the Corps engage in a supplementary consistency determination. The court found that DNREC’s “satisfaction” was not required, and that the Corps could proceed with a project so long as it concluded that its project was “fully consistent” with the State’s management plan. For any interim changes after an initial consistency determination, the Corps was required to identify if any substantially different effects resulted therefrom, and the Corps had not identified any such results.

On the issue of irreparable injury, DNREC asserted two potential harms: (1) allowing the Corps to bypass the state regulatory process would run afoul of Delaware’s sovereign authority, and (2) that the Corps’ activities would result in harm to the environment. As to the first assertion, the court found that the federal supremacy principles apparent in the CWA, CAA and CZMA require that state law yield in certain statutorily defined circumstances, and that a federal agency’s employment of such a circumstance could not result in harm relevant to the Winter inquiry. For harm to the environment, while the court recognized that injury to the environment constitutes irreparable harm, such harm must be substantiated and the court found that DNREC had failed to do so. The court found “especially telling” that DNREC could not provide any physical evidence tending to show an injury, and that the Corps had proffered the only technical studies that were before the court.

Economic vs. Environmental Interests

In balancing of the equities and the public interest, the court weighed the interests of “nation’s environmental preservation efforts” versus the continued economic vitality of the Delaware River ports and found them equally compelling. The court then looked to Congress’ determination, as evidenced by its funding decisions, that it was in the public interest to proceed with the project.

Partial Injunction As to Future Phases – Wait and See

Ultimately, the court found that DNREC had not carried its burden that the project should be enjoined and denied DNREC’s motion as to the first phase of the project. However, since the initial project stage would last through December 2010, and DNREC represented that an administrative review of the project would be concluded within a year, the court granted the motion as to the rest of the project. In doing so, however, the court went to great lengths to clarify that it was not suggesting that the project would not be completed. Rather, the court observed that further administrative review would be a means to accomplish the project without causing environmental harm, not a means to stop the project all together.

Following the district court’s decision, the U.S. Court of Appeals for the Third Circuit denied a motion by five environmental groups to block the ruling, finding that the groups had "failed to meet the standards for an injunction or stay pending appeal."

Whooping Cranes and Texas Water Rights - A Fight's A Brewing

Posted on March 18, 2010 by Paul Seals

There is a fight brewing over the management of water resources in Texas. In a lawsuit that raises significant water rights implications, The Aransas Project (“TAP”), a non-profit corporation and an alliance of citizens, organizations, businesses and governmental entities, filed suit on March 10 in Corpus Christi against the Texas Commission on Environmental Quality (“TCEQ”) alleging that the state agency’s actions have harmed and threaten future harm to Whooping Cranes, the species that has pre-eminently exemplified and symbolized the wildlife conservation movement at the heart of the Endangered Species Act. According to the petition, 23 Whooping Cranes died at or adjacent to the Aransas National Wildlife Refuge (“ANWR”) in Texas over the winter of 2008-2009. After reviewing the allegations and the relief requests, one may wonder if this is a lawsuit to protect Whooping Cranes or is it part of a strategy to control the continued population growth and economic development in Texas through the control of water resources.

The Last Wild Flock

The Aransas-Wood Buffalo Whooping Crane flock winters at the ANWR along the Texas coast, northeast of Corpus Christi, and breeds in Canada’s Wood Buffalo National Park in the summer. It is the only natural wild flock remaining in the world. After decades of government protection in this country and in Canada, the flock has increased from 16 birds in the early 1940s to 270 in the spring of 2008. ANWR is located at or near the bays that are fed by freshwater flows of the Guadalupe and San Antonio Rivers into San Antonio Bay.

Is Permitted Freshwater Use the Problem?

TAP alleges that a critical reason for the Whooping Crane deaths was the lack of sufficient freshwater inflows, which adversely impact the Whooping Crane habitat by reducing the abundance of blue crabs and wolfberries, primary food sources, as well as the availability of drinkable water. These impacts are alleged to result in actual harm to the Whooping Cranes by significantly impairing their essential behavior and feeding patterns in violation of the Endangered Species Act.

TAP alleges that the TCEQ’s water rights regulations and practices constitute a prohibited taking in violation of Section 9 of the Endangered Species Act. TAP is seeking to enjoin the TCEQ from approving or processing new or pending water rights permits, to order the TCEQ to develop an approved Habitat Conservation Plan, to appoint a special master and to maintain court supervision and oversight in order to ensure sufficient freshwater flows into the Whooping Crane habitat.

Is There Another Agenda Here?

Reviewing the relief requested, TAP has targeted major water development projects previously announced in the Guadalupe River basin. In the petition, TAP has identified the water rights application of Guadalupe-Blanco River Authority to divert flood flows as well as the Authority’s contract to supply water from an existing water rights permit to Exelon Corporation for a new nuclear power plant. In addition, TAP is requesting, as part of the Habitat Conservation Plan, that existing water rights be reduced. Through this litigation, TAP has the potential to place future water resource development and existing water rights under the oversight of a special master and the federal judiciary.

A Complex Issue

Is the Whooping Crane being used to usurp Texas water rights? All parties and all Texans agree that the Whooping Crane should be protected. Will TAP be able to demonstrate the relationship of freshwater inflows and harm to the Whooping Crane? That nexus is in dispute. The Guadalupe-Blanco River Authority and the San Antonio River Authority commissioned a multi-year study to evaluate the relationship between freshwater inflows feeding San Antonio Bay and the health of Whooping Crane population at ANWR. The San Antonio Guadalupe Estuarine System Report concluded that the environmental factors that impact the Whooping Crane’s habitat are complex and not a simple correlation to freshwater flows and salinity.

TAP estimates that as of February 2010, the Whooping Crane flock numbers 263, down from an all-time high of 270 in the spring of 2008. Is this really about the Whooping Crane? If this strategy is successful, will it be used in other river basins with other endangered species?

To cite a well-worn Texas adage: “Whiskey is for drinking, water is for fighting!”

Effective Blogging Tips

Posted on March 10, 2010 by Rachael Bunday

Add Commentary: Many of our blog pieces appear to be articles.  Although informative, by posting them sans the author's thoughts, the known is merely being restated...they're merely restating something already known. As bloggers, you want to take a stance and either add to the conversation or generate one. Ultimately this will keep readers coming back to your blog and hopefully leave comments.


In blogging, you want to provide as much first-hand information as possible to your readers. By linking to a first-hand source, a news wire or an article--it only strengthens the credibility of your commentary because you're allowing readers to read the details themselves.


This will keep your blog content fresh and also help keep post length short.


Shorten your paragraphs: Writing for blogs is different then writing for anything else. You don't want to scare away readers by inundating them with such large loads of text at once. They'll likely skim the first few sentences at best.


Each paragraph should consist of 2-3 sentences.


Shorten your posts: Just as you want to keep paragraph length pretty short, you want to do the same with your posts in general. When it comes to blogs, people anticipate short entries.


It's excellent that you have a lot to say, however try to synthesize a bit. Each post should roughly have no more than 10 little paragraphs.


This makes it easier on the eyes and less daunting for readers to read. Sometimes you can use the spacing to your advantage when you want to emphasize a point/idea/quote. I would also use a bit more space between paragraphs, just so it's clear there's a break.


Bold text: Wwithin the posts there is little to no use of bold text. In lengthier posts, this is crucial for reader retention.


In blogging, bolded text is most effective when used in any of the following ways:

  • Highlight key ideas: use this sparingly, however if you want a key phrase/word/idea to stand out, bold it!
  • Highlight the thesis: this makes it immediately obvious to readers what the author's thoughts are on the subject.
  • Pose a question: This is a great way to encourage reader feedback! Since the goal of blogging is to generate a conversation between the author and the readers, posing a question can be extremely effective , it gives them an easy subject to focus on.


Overall textual devices are invaluable tools to help readers get through reading on a computer and get a feel for what you're writing about. People's eyes need a break, therefore use little devices such as bolding and spacing to your advantage.


Linking: Anytime you refer to anything/everything that has a website, link to it! This allows your readers to read about something first-hand without you having to explain every little detail.


  • Give links a title, don't just paste in the direct URLs, it looks sloppy.
  • Paraphrase or only use a snippet of a quote and then link to the rest of the article/quote/story/case...this will minimize long post lengths.
  •  Anytime you refer to a website/network (anything and everything as mentioned above) link to it. This helps with trackbacks, Search Engine Optimization and build credibility among readers.


When linking, bold the name of the company/publication, link to the article.


Whenever you can, attribute where you're getting info/text from. Because the writing is in 3rd person, it's obvious that this was from another source. This may disgruntle or confuse readers and somehow affect how they perceive your credibility. Because you only have a reader's attention for a split-second, little attributions are key.


It's best to show the readers what you're talking about with links, it backs-up whatever the author is talking about and ultimately builds your credibility. This allows you to refer to many things and depending on the background knowledge of your readers, they can select which things to click on and find more out.


--->Also, as long as you link throughout your post, a source list at the end of each post is not required. In fact, this deters readers because it looks like an essay.


Esoteric language: Remember, you're trying to attract potential clients who may not know much about the law. Therefore, they may be easily intimidated by "legal speak."


Therefore in posts like, "Kansas Agency Denies..." which are incredibly informative--may come across like it's a post from lawyers for lawyers. Just as mentioned in the bit about adding commentary, you want to generate a conversation and have them returning to your blog.


Or in the article, "Is Massachusetts Showing..."
'The closest that any statutes come to the promise of a comprehensive environmental statute is the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370(f)' <---------this will confuse and deter the average joe.


Therefore you want to write with language that's easily understandable.


For a webinar on the Art of Effective Blogging created by Lex Blog, please visit this link.

Nanotechnology - Health and Risk Management Concerns

Posted on March 9, 2010 by Michael Rodburg

In June last year insurance giant Zurich issued a report of the work of its Emerging Risks Group study begun in 2006. The report stated that the risks with the greatest potential to affect Zurich and its customers are those associated with nanotechnology.

Similarly, an alphabet soup of regulators—foreign and domestic—is wrestling with largely unknown and largely theoretical risks. The human health and environmental alarms have been sounded by numerous commentators, without yet meaningful, documented empirical observation or controlled studies of human health and safety issues or environmental concerns. Regulation in a factual vacuum is potentially counterproductive and can stifle one of the 21st century’s most promising new technologies. But no one wants “another asbestos” or to have stood by silent in the spring while nanobots consume an ecosystem. This blog will skim the surface of an increasingly deeper and broader pond.

What is Nanotechnology?

Nanotechnology involves the manipulation of matter at the near atomic or nanometer scale--a nanometer is one billionth of a meter; a standard sheet of paper is 100,000 nanometers thick. Materials composed of or including devices and systems with components at the nanometer scale represent fundamentally new molecular organizations with highly different and potentially unpredictable properties and functions compared to their macromolecular cousins. The technology has found uses in a wide variety of commercial products including wound dressings, pregnancy tests, toothpastes, lubricants, paints, nonstick coatings, tennis racquets, air filters and many other products. In each of these products, the nano scale materials exhibit dramatically different characteristics than would be true of those materials at normal scale.  For example, gold is an excellent conductor of heat and electricity but simply reflects ordinary light. Properly structured gold nano particles absorb light and can actually convert light into heat (which, in turn, can be used for cutting purposes in thermal scalpels).  Nano sized particles of titanium dioxide provide UV protection while remaining transparent. Nano scale materials in thin films applied to eyeglasses, computer displays and cameras make them water repellant, anti-reflective or give them other useful physical characteristics.


Potential Health Issues

The primary human health concern for the extremely small size of nano materials is that they may be introduced into and affect the body in ways completely different than their bulkier macro cousins. See, e.g., Special Report, Nanotechnology: Benefits vs Toxic Risks, Functional Foods And Nutraceuticals (Feb. 2007) ("nanosized particles were found to traverse through lung tissue in unexpected ways, gaining access to blood and lymphatic systems"). 

The potential for different human health related characteristics such as enhanced adhesion, reactivity and absorption means that current methodologies for risk assessment simply are not applicable and safety data drawn from non-nano counterpart materials may be irrelevant.  See, Fischer Nanotechnology -- Scientific and Regulatory Challenges, 19 Villanova Envt. L. J. 315 (2008). For example, when inhaled, nano particles are deposited more efficiently and deeply into the respiratory tract than non-nano materials, and these nano materials may evade human body defense mechanisms that trap larger particles. In addition, nano materials themselves have sometimes been the subject of problematic animal studies. See Lynn, Size Matters: Regulating Nanotechnology 31 Harv. Envtl. L. Rev. 349 (2007).

Moreover, ordinary risk management tools may also simply “not work” in the presence of nano materials. For example, the use of facial masks designed for non-nano aerosols may not be effective for nano sized particles.

Nanotechnology concerns have been heightened by an article published in the European Respiratory Journal in which researchers reported that seven (7) young women suffered permanent lung damage following months of unprotected exposures to fumes and smoke containing nano particles in spray painting operations in China. The researchers concluded that the patients' illnesses appeared to be a "nanomaterial -- related disease.” While the results of this study have been questioned, the legitimacy of concerns with respect to high level environmental exposures to these materials remains. 

Regulatory Focus

An intense regulatory focus on developing an appropriate scientific basis for ensuring that nano materials do not present unreasonable human health concerns is underway. See e.g., Dept. of Health and Human Services, Approaches To Safe Nanotechnology - Managing The Health And Safety Concerns Associated With Engineered Nanomaterials (March 2009).  Giving further impetus to these concerns is the fact that there is a high concentration of nanotechnology applications in pharmaceutical, food and cosmetics applications, industry segments with direct and immediate human interactions. Every agency with jurisdiction over human and environmental health and safety has found or certainly will find reason to explore regulation. The USEPA has begun to issue rules about handling of and exposure to nano forms of alumina, silica and silver; the California Department of Toxic Substances is considering controls on carbon nanotubes. We can expect initiatives over time from the FDA and OSHA.

Insurance Company Reaction

For its part, the insurance industry has focused on product liability concerns. Insurance industry studies have expressed significant reservations about liability issues associated with nano materials. See Lloyd's of London Emerging Risks Team Report, Nanotechnology - Recent Developments, Risks and Opportunities (2007).  Indeed, one insurance carrier (Continental Western Insurance Group) has gone so far as to impose nano-technology exclusions in their standard CGL policies - notwithstanding the fact that no such claims have yet been presented. 


It is clear that nanotechnology offers tremendous scientific and commercial opportunities in the future. These opportunities, however, are likely to be accompanied by health and safety based product liability and environmental risks, and those risks need to be taken into account in the development and exploitation of these products.

This blog is based in part on a more expansive article: Michael Dore, Nanotechnology - Evaluate The Products Liability Risks, 198 N.J.L.J. 866 (December 14, 2009)

When a Discharge Isn't

Posted on March 8, 2010 by Brian Rosenthal

For all environmental lawyers and especially for business advisors and bankruptcy lawyers, a very important case was decided by the 7th Circuit Court of Appeals in fall 2009. The case concerns the effect of a bankruptcy discharge from a 1986 bankruptcy filing versus an affirmative Resource Conservation and Recovery Act (“RCRA”) clean-up injunction. The question is whether the injunction is a discharged claim in bankruptcy. The Court of Appeals concludes a mandatory injunction to perform clean-up does not equate to an equitable remedy giving rise upon breach to a right to payment, which is the covered equitable remedy subject to discharge.


Here, the formerly bankrupt company’s reorganization left it no choice but to have this particular clean-up conducted by a third party at an estimated cost of $150,000,000. The Court found, however, the clean-up order did not result in a right to payment because RCRA does not allow either a demand for clean-up costs or any monetary relief. 


Finding that all equitable orders will inevitably require the ordered party to spend money to comply, the Court concludes discharges are limited to matters where the claim gives rise to a right to payment.  Such situations arise where an equitable decree can not be executed and results in a right to seek money damages and not merely those that impose a cost on the defendant.  


This case reaches a conclusion contrary to a 6th Circuit case and is distinguishable from the landmark Supreme Court ruling in Ohio v. Kovacs.  In Kovacs a receiver was appointed to take possession of the debtor’s assets so it could obtain money to pay for an ordered clean-up, and the Supreme Court found the receiver, therefore, was seeking money rather than an order that the debtor clean up the contaminated site. 


The holding in this 7th Circuit case is certainly one that will likely reverberate around the country for years to come. United States v. Apex Oil Co., Inc., 579 F.3d 734 (7th Cir. 2009).

Supreme Court Gets Back to Basics in Declining to Hear Three Environmental Cases

Posted on March 2, 2010 by Eva Fromm O''Brien

The United States Supreme Court recently declined to hear three relatively high-profile environmental cases: Croplife America v. Baykeeper (a permitting clash between FIFRA and CWA); Texas Water Development Board v. Department of Interior (weighing the designation of a nature refuge under NEPA versus economic development); and Rose Acre Farms Inc. v. United States (regulatory taking claim as a result of agency action). After a 2008-2009 term where the Court seemed to take aim at the environmentalist cause, the Court may have put some wind back in the environmentalist’s sails by declining to consider these three separate industry challenges to federal environmental regulations.



EPA Rulemaking for CWA & FIFRA Permitting



In Croplife America v. Baykeeper, the Court decided not to review the Sixth Circuit’s year-old ruling in National Cotton Council v. EPA requiring farmers to secure Clean Water Act permits for the use of pesticides already permitted under FIFRA.  EPA had claimed that FIFRA approval incorporated compliance with the Clean Water Act, however, the Sixth Circuit ruled that the government was obligated to ensure that farmers using pesticides were subject to both regulations. The decision had been stayed until April 2011 while EPA reviews and revises its NPDES permitting process to comply with the ruling.



Two different groups—one representing environmental interest groups and the other representing industry interest groups—opposed the EPA’s new permitting rule as exceeding the EPA’s interpretive authority, and argued that it would create redundant bureaucracy and hamper agricultural production by forcing farmers to decide between not applying pesticides and risking legal and enforcement actions for discharging without a permit.


Environmental Conservation versus Future Development


Another case denied review was Texas Water Development Board v. DOI, which weighed prospective future development against environmental conservation.  The Supreme Court’s decision will disrupt any future plans by Dallas-area officials to build the proposed Lake Fastrill reservoir along the Neches River.



In Texas Water Development Board, the Fifth Circuit Court had unanimously upheld a lower court’s decision that the Fish and Wildlife Service did not violate the NEPA by designating 25,000 acres of east Texas wetlands as the Neches River National Wildlife Refuge. In opposing the designation, local governments asserted they would likely need to build the reservoir by 2050 in order to accommodate increased water demand. However, the Fifth Circuit found that this project may never take place or may occur at a different site. Importantly, the “effects of establishing the refuge, and thus precluding the reservoir, are highly speculative and cannot be shown to be the proximate cause of future water shortages in Dallas.” 



Regulatory Taking Claims for Enforcement of Regulations



Finally, the Court declined to review Rose Acre Farms Inc. v. United States, a suit brought by an egg farm against the federal government for damages after a crack-down on potential salmonella contamination. Following an outbreak that was traced back to the farm, the USDA destroyed some of the farm’s eggs and required the company to sell others on the less-lucrative market for liquid, pasteurized eggs.



Rose Acre sued to recoup lost revenue, arguing that the government response constituted a “regulatory taking” under the Fifth Amendment. The Court of Federal Claims awarded Rose Acre $5.4 million in damages, but that award was overturned by the U.S. Court of Appeals for the Federal Circuit.  In its petition for review, Rose Acre Farms argued that the government responded to contamination fears in a way that focused the economic impact “narrowly and devastatingly, upon egg producers generally and Rose Acre specifically.”



The Supreme Court’s decision to pass on the case leaves the Federal Circuit’s decision as the precedent for future takings cases involving federal agencies. As such, the government may have less to fear from regulatory takings claims when enforcing its public health and environmental regulations.



Declining to hear these cases, while generally viewed as favorable to environmentalists, may be reconciled with the Court’s overall trends in environmental cases over the past several terms. None of these declined cases originated in the Ninth Circuit, a jurisdiction that seems to garner heightened scrutiny from the Supreme Court, as the Court has repeatedly reined the Ninth Circuit’s high-profile, often pro-environment decisions.  The Court has shown that it will look to the plain language of an underlying statute and its overall structure in trying to interpret Congress’ intent. More importantly, when there is room for interpretation, the Court has emphasized giving deference to agency expertise and decision-making. Thus, the question is not whether the Court may be pro- or anti-environment in a given term—it is simply whether it is abiding by its core principles and themes.

UPDATE ON THE POULTRY LITIGATION IN OKLAHOMA Poultry litter is not a solid waste under RCRA

Posted on February 26, 2010 by Linda C. Martin

The Oklahoma State Attorney General sued several poultry companies for polluting the Illinois River and its watershed in Eastern Oklahoma as a result of the application and disposal of poultry litter in the watershed. State of Oklahoma v. Tyson Foods, Inc. et. al. Case No. 05-CV-329-GFK(PJC). The suit alleged claims under CERCLA, RCRA, and nuisance among other things. You are referred to the articles posted March 9, 2009 an September 3, 2009 for particulars regarding the claims. 


Two weeks before trial, the Cherokee Nation moved to intervene in the case as a necessary party, but the Judge wouldn’t allow it. The Court decided that the damages claims would not be tried, but that the injunctive claims as well as the state penalty claims could be tried with the absence of the Cherokee Nation in the suit. The reasoning was, among other things, that the Cherokee Nation would be potentially prejudiced if the remaining damage claims went forward without it, but that would not be the case if the remaining injunctive claims and state law penalty claims were tried. Although the Cherokee Nation filed an immediate appeal with the Tenth Circuit, it did not ask that the case be stayed pending the outcome of the appeal.


The case has now been tried to the Court. It began on September 24, 2009 and only this month concluded with closing arguments. However, during the trial the Court ruled, in response to a Rule 52(c) motion, among other things, that:

  • Poultry litter is an agricultural commodity for which there is both a market and a market value in the watershed.
  • Poultry litter has market value because it can be beneficially used as a fertilizer and soil amendment.
  • The State did not produce sufficient evidence to convince the Court that farmers, ranchers or other applicators of poultry litter in the Illinois River Watershed land-applied poultry litter within the watershed solely to discard it.
  • Under the applicable law and the evidence produced at trial, poultry litter is not a “solid waste” under RCRA, and therefore the State’s RCRA claim was dismissed. 

This ruling is very important because of the focus on nutrient issues under the Clean Water Act Nonpoint Source Pollution. EPA states on its website that “States report that nonpoint source pollution is the leading remaining cause of water quality problems.”  Indeed, EPA has a “National Nutrient Strategy” and is focusing more on these issues than ever before. 

UPDATE ON THE POULTRY LITIGATION IN OKLAHOMA Poultry litter is not a solid waste under RCRA

Posted on February 26, 2010 by Linda C. Martin

The Oklahoma State Attorney General sued several poultry companies for polluting the Illinois River and its watershed in Eastern Oklahoma as a result of the application and disposal of poultry litter in the watershed. State of Oklahoma v. Tyson Foods, Inc. et. al. Case No. 05-CV-329-GFK(PJC). The suit alleged claims under CERCLA, RCRA, and nuisance among other things. You are referred to the articles posted March 9, 2009 an September 3, 2009 for particulars regarding the claims. 


Two weeks before trial, the Cherokee Nation moved to intervene in the case as a necessary party, but the Judge wouldn’t allow it. The Court decided that the damages claims would not be tried, but that the injunctive claims as well as the state penalty claims could be tried with the absence of the Cherokee Nation in the suit. The reasoning was, among other things, that the Cherokee Nation would be potentially prejudiced if the remaining damage claims went forward without it, but that would not be the case if the remaining injunctive claims and state law penalty claims were tried. Although the Cherokee Nation filed an immediate appeal with the Tenth Circuit, it did not ask that the case be stayed pending the outcome of the appeal.


The case has now been tried to the Court. It began on September 24, 2009 and only this month concluded with closing arguments. However, during the trial the Court ruled, in response to a Rule 52(c) motion, among other things, that:

  • Poultry litter is an agricultural commodity for which there is both a market and a market value in the watershed.
  • Poultry litter has market value because it can be beneficially used as a fertilizer and soil amendment.
  • The State did not produce sufficient evidence to convince the Court that farmers, ranchers or other applicators of poultry litter in the Illinois River Watershed land-applied poultry litter within the watershed solely to discard it.
  • Under the applicable law and the evidence produced at trial, poultry litter is not a “solid waste” under RCRA, and therefore the State’s RCRA claim was dismissed. 

This ruling is very important because of the focus on nutrient issues under the Clean Water Act Nonpoint Source Pollution. EPA states on its website that “States report that nonpoint source pollution is the leading remaining cause of water quality problems.”  Indeed, EPA has a “National Nutrient Strategy” and is focusing more on these issues than ever before.