Eleventh Circuit Wades into the Everglades on ESA Issues, Miccosukee Tribe v. United States, No. 08-10799

Posted on May 21, 2009 by Patricia Barmeyer

The Eleventh Circuit has waded, again, into the ongoing debates over restoration of the Everglades. In addressing yet another lawsuit filed by the Miccosukee Tribe, the Court largely upheld the Fish & Wildlife Service’s delicate balance between the competing and inconsistent habitat needs of the Cape Sable seaside sparrow and the Everglade Snail kite, both endangered species. The seaside sparrow needs stable low water levels below a certain water control structure; the kite’s habitat is destroyed by the resulting rising water levels in the impoundment. The FWS issued a biological opinion allowing the Corps of Engineers to operate the structure to avoid extinction of the sparrow and to conduct an incidental take of the kite. While largely affirming the agency, the Eleventh Circuit reversed on the issue of the trigger that would require initiation of consultation under Section 7 and, along the way, made new law in this circuit on several important issues.

First, the court rejected the tribe’s argument, often advanced by conservation groups in ESA litigation, that the ESA requires that FWS “give the benefit of the doubt to the species.” The court held that this language, taken from a conference committee report, does not mean that the FWS is required to issue a jeopardy opinion if the evidence is evenly balanced between likely jeopardy and likely no jeopardy. Rather, the Eleventh Circuit explained, the language was intended to prevent FWS from shirking its consultation duties by relying on scientific uncertainty, but did not require any substantive result. The court held that “the need to give a species the benefit of the doubt cannot stand alone as a challenge to a biological opinion.”


Second, the court held that the FWS Consultation Handbook, which is not a formal rule, is nevertheless entitled to Chevron deference because it was adopted after notice and comment, citing Nw. Ecosystem Alliance v. United States Fish & Wildlife Service, 475 F.3d 1136, 1142-43 (9th Cir. 2007).

Third, the court rejected the argument that negative impacts on a species’ critical habitat must be permanent to amount to “adverse modification” under the ESA. Writing for the court, Judge Carnes noted: “It is not enough that the habitat will recover in the future if there is a serious risk that when that future arrives the species will be history.”

Finally, the Eleventh Circuit invalidated the incidental take statement because it used a habitat indicator -- specific water levels-- as a proxy to establish the trigger that would require the agency to reinitiate the Section 7 consultation process. The court held that the FWS’ use of a habitat indicator as a proxy, as provided for in the Consultation Handbook, fails Chevron step one, based on its conclusion that the legislative history of the ESA clearly indicates Congressional intent that actual population data must be used as the trigger for re-consultation, unless the agency demonstrates that it is impracticable to do so. Further, even if the agency can demonstrate the need to use a habitat proxy, the habitat proxy trigger must be addressed to the specific habitat needs of the species.

This decision, reviewing the FWS’ attempt to manage challenging species protection problems and breaking new ground on ESA legal issues, is sure to be much-cited and widely debated.


Posted on May 19, 2009 by Kevin Beaton

It is well known that EPA rules developed under the Bush Administration have not fared well in the federal courts. Earlier this year, a 2006 EPA rule that exempted the application of pesticides to surface waters from Clean Water Act NPDES permitting requirements suffered a similar fate in Nat’l Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009). The effect of this ruling will likely require any person or governmental entity throughout the United States that applies pesticides and insecticides near or onto waters to first obtain an NPDES permit.           

            A.        The History of Pesticide Regulation under the Clean Water Act.

            In Nat’l Cotton Council of America v. EPA, the court evaluated the legality of a 2006 EPA rule which provided that the application of pesticides and herbicides to and over surface water to control pests, weeds and insects consistent with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not require an NPDES Permit. 


How EPA came to promulgate the 2006 rule is a familiar scenario to environmental lawyers. The operative provisions in the Clean Water Act relied on by the court in Nat’l Cotton Council to vacate EPA’s rule have been in place since 1972. For some thirty years, farmers, irrigation districts, foresters, local health agencies, fishery agencies and others have applied pesticides and herbicides to and above waters to control pests, weeds, insects and other undesireable species believing that all that was required under federal law was to follow the FIFRA labeling requirements. During this time EPA never definitively took a position whether NPDES Permits were or were not required for such applications. 

The assumption that compliance with FIFRA exempted pesticide applicators from the Clean Water Act permitting was dashed in 2001 in the case of Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001). In Headwaters,the court found that the application of an herbicide to a canal to control weeds required an NPDES Permit. Critical to the Court’s decision in Headwaters was the fact that a chemical residue which was toxic to fish remained in the water days after application. Therefore the Court found that the residue was a “chemical waste” and therefore a “pollutant” under the Clean Water Act. The Court rejected the idea that compliance with FIFRA labeling requirements obviated the need for an NPDES Permit finding that the two federal statutes served different purposes. The court’s finding on this point was based, in part, on an amicus brief filed by EPA in the case which took the position at that time that compliance with FIFRA did not exempt an applicator of pesticides from obtaining an NPDES Permit. Shortly after Headwaters, the Ninth Circuit issued another decision on whether the application of pesticides from an airplane above surface waters required an NPDES Permit in League of Wilderness Defenders v. Forsgren, 309 F.3d 1181 (9th Cir. 2002). Forsgren was another citizen suit, this time brought against the United States Forest Service (USFS) for unlawfully discharging insecticides from airplanes to control moths which infect and kill trees on national forest lands without an NPDES Permit. In Forsgren, the Court found that the aerial application of insecticides over national forest lands (including surface waters) required an NPDES Permit. The USFS argued such spraying was covered by an EPA rule exempting certain “silvicultural activities” from NPDES Permit requirements. The Court found that the USFS’ application of pesticides clearly involved the discharge of a pollutant (insecticide) from a point source (airplane) to jurisdictional waters. The Court also found that EPA’s silvicultural rules did not (and could not) exempt activities Congress clearly required to be subject to NPDES Permit requirements under the Clean Water Act.

            The Headwaters and Forsgren cases created a major stir not only in the West but around the United States. Now activities that nobody ever believed required an NPDES Permit were subject to Clean Water Act permitting. For example, during this time the spread of West Nile Virus associated with water borne vectors were causing illness and deaths around the United States. Local agencies around the United States were facing citizen suit liability for unlawfully spraying insecticides on waters without an NPDES Permit or were potentially forced to go through a lengthy permit process (if a permit was even available) to undertake an activity that required immediate action. Some states with NPDES Permit programs such as Washington and California acted quickly and issued general NPDES Permits to authorize application of pesticides and herbicides into waters to address this untenable situation. EPA chose not to issue any type of general permits, but rather adopted an “interim guidance document” in 2003. See 65 Fed. Reg. 48385. EPA opined in the Guidance Document application of pesticides and herbicides to surface waters consistent with FIFRA requirements were not “pollutants” under the Clean Water Act since such application did not involve the discharge of a chemical “waste” but rather a chemical “product” and therefore no NPDES Permit was required. EPA then went forward with a proposed rule which resulted in publication of a final rule at 40 CFR § 122.3(h) in 2006 that closely followed their interim guidance document.

            B.        The Cotton Council Decision.

After the EPA published the final rule in late 2006, a host of environmental advocacy groups, groups opposed to the use of pesticides, and industries filed challenges to the rule in numerous federal courts throughout the United States. Each group sought to have their challenge heard in a favorable forum. All of the challenges were consolidated before the Sixth Circuit Court for decision. The court in Cotton Council rejected much of the rationale offered by EPA in support of the rule. EPA’s principal position in supporting the exemption was that the application of pesticides to and above waters in accordance with FIFRA is the application of a product and not a “chemical waste” or a “biological material” and therefore not a “pollutant” under the NPDES Permit program. The court in Cotton Council focused on the definition of “pollutant” in the Clean Water Act which included the terms “chemical waste” and “biological materials.”

            The court accepted EPA’s position that some chemical pesticides that are intentionally applied to waters for a beneficial purpose are chemical products and not a “chemical waste” as long as there does not remain any chemical residue after application. This finding was consistent with an earlier Ninth Circuit case that found the discharge of a pesticide to waters with the intent of eradicating a certain species of fish and which did not leave any remaining chemical residue in the water was not a discharge of a pollutant requiring an NPDES Permit. See Fairhurst v. Hagener, 422 F.3d 1146 (9th Cir. 2005). The court in Cotton Council, however, disagreed with EPA as it relates to pesticides that leave a “residue” in the water. The court in Cotton Council agreed with the Ninth Circuit’s analysis in Headwaters that such residues were clearly a “chemical waste” and therefore a pollutant.

            The court rejected EPA’s attempt to subtly overturn Headwaters by suggesting that even if chemical residues (toxic or otherwise) remained in the water after application of chemical pesticides an NPDES Permit was still not required because at the time of discharge the pesticide was still a “product” and only turned into a waste after it was in the water. According to EPA this meant that the chemical waste was not discharged from a point source but rather was now a “nonpoint” pollution source and not subject to NPDES Permit requirement. The court rejected EPA’s logic and found the Clean Water Act did not support EPA’s “temporal” interpretation that material could be lawfully discharged without a permit but later turn into a pollutant.

            The court also found that a variety of other pesticides which utilize “biological materials” such as viruses, bacteria, fungi, and plant material were pollutants and therefore could not be exempted from NPDES Permit requirements if they were discharged to or above surface waters. The court found that the plain meaning of the term “biological materials” in the definition of “pollutant” did not require such material to be a “waste.” Therefore the court concluded that the application of any biological pesticide to jurisdictional waters from a point source whether it left a residue or not required an NPDES Permit.

            C.        Aftermath of Nat’l Cotton Council.

            EPA has requested a two-year stay of the ruling to allow the agency sufficient time to develop a general NPDES Permit authorizing pesticide application on, near or above surface waters. Industry parties may seek rehearing or request review of the ruling before the United States Supreme Court. A change in the Clean Water Act is also possible but seems unlikely in the current political environment. At this point it is clear that any chemical pesticide that is applied to or above waters from a point source that leaves any type of chemical residue in the water requires an NPDES Permit. Also the application of any biological pesticide to or above waters from a point source also requires an NPDES Permit. 

For those who are not familiar with actually obtaining an NPDES Permit from EPA, it is no simple task. For example, it is not unusual for EPA to take years to issue an NDPES Permit for a new facility or years to reissue an NPDES Permit for an existing facility whose permit has expired. Most states (approximately forty-six states) issue NPDES Permits in lieu of EPA. Often state permitting decisions are faster than EPA, but not always. General permits are authorized for certain categories of discharges. See 40 CFR § 122.28. Typical general permits issued by EPA include stormwater discharges from construction sites, stormwater discharges from industrial facilities, and discharges from confined animal feeding operations. States often mirror EPA general permits in administering state programs. 

Because of the varied water applications of various pesticides, insecticides, and fungicides to and near waters throughout the United States, it is likely that issuance of a general permit covering all of these activities will be a challenge, which explains EPA’s request to stay the decision for two years. Likely permit conditions will include instream monitoring and a variety of pesticide application management practices. No matter what happens to EPA’s stay request or any further appeals by industry, one thing is certain: the regulatory uncertainty under the Clean Water Act associated with pesticide applications to or near waters over the past seven years will continue.

The Burlington Northern Decision

Posted on May 19, 2009 by John Barkett

The Supreme Court’s decision in Burlington Northern was not unexpected from my vantage point especially given the literal interpretation of CERCLA by the Court in Aviall and Atlantic Research and the flow of the oral argument. 

I was a little surprised that Justice Stevens was assigned the task of writing the opinion since Justice Thomas wrote Aviall and Atlantic Research.  But with 7-2 (Justices Ginsburg and Stevens dissented in Aviall because the Court would not decide the issue of entitlement to sue under Section 107), 9-0 (Atlantic Research decided the Section 107 private of action question left unresolved in Aviall), and 8-1 (Justice Ginsburg was the lone dissenter in Burlington Northern) votes in these three opinions, the Court is not going out of its way to fix CERCLA’s language. Section 113(f)(1) means what it says. Section 107 means what it says. An arranger must have an intent to dispose. And joint and several…


Wait a second. The statute says nothing about “joint and several liability.” It does not set a liability standard at all. In fact in 2007, in note 7 of Atlantic Research, the Court wrote, “We assume without deciding that §107(a) provides for joint and several liability.”

Two years later, the Court appears to have deftly answered this question, albeit indirectly. It called the holding in Chem-Dyne the “seminal opinion on the subject of apportionment in CERCLA actions …written in 1983 by Chief Judge Carl Rubin of the United States District Court for the Southern District of Ohio.” Quoting Judge Rubin, the Court said that joint and several liability is not mandated in every CERCLA cost recovery action and that Congress intended the scope of liability to “’be determined from traditional and evolving principles of common law[.]’”

As the entire environmental world now knows, the Court held that the district court’s findings should not be disturbed: “The District Court’s detailed findings make it abundantly clear that the primary pollution at the Arvin facility was contained in an unlined sump and an unlined pond in the southeastern portion of the facility most distant from the Railroads’ parcel and that the spills of hazardous chemicals that occurred on the Railroad parcel contributed to no more than 10% of the total site contamination, some of which did not require remediation.”

Going forward, the facts will dictate the outcome. The Court blessed the use of basic allocation or apportionment principles that have been applied in numerous CERCLA cases and numerous consent decree approval orders over the past 25 years. Indeed, it was mildly critical of the Ninth Circuit for talking out of both sides of its mouth: “Although the Court of Appeals faulted the District Court for relying on the ‘simplest of considerations: percentages of land area, time of ownership, and types of hazardous products,’ 520 F. 3d, at 943, these were the same factors the court had earlier acknowledged were relevant to the apportionment analysis. See id., at 936, n.18 (‘We of course agree with our sister circuits that, if adequate information is available, divisibility may be established by ‘volumetric, chronological, or other types of evidence,’ including appropriate geographic considerations’ (citations omitted)).”

In cases where there is no orphan share and multiple parties, it will behoove EPA and the parties to work on apportionment issues up front to save litigation costs. Yes, I relate “apportionment” to “allocation” in saying this, but after Burlington Northern, it will be the rare case that will lack the facts to make a reasonable basis for apportionment. Volumetric waste-in information may be controlling. Or varying toxicities of released hazardous substances may be. Or geography or time of ownership or operation. There may be equitable factors as between or among jointly and severally liable parties, e.g., cooperation, that may not relate to apportionment, but not that many cases have utilized this allocation factor, and most judges engage in an allocation exercise that is indistinguishable from an apportionment exercise, as was the case in Burlington Northern. Cf. Restatement of the Law (Third) Torts, §1, cmt. a., §26 cmt. a. (focusing on the role that comparative responsibility now plays in tort law).

Where there is an orphan share, the stakes are much higher after Burlington NorthernCf. United States v. Newmont USA Limited, 2008 WL 4612566 (E.D. Wash. Oct. 17, 2008) (after a six day trial, submission of dozen depositions or deposition excerpts and 1,600 exhibits, finding the two defendants—one of which was alleged to be an orphan--jointly and severally liable but then finding for the defendants on their counterclaim in contribution against the United States, and then equitably allocating response costs 1/3 to the United States and 1/3 each to the two defendants).

It will still behoove the regulator and the regulated to work things out. If EPA becomes the “bank” (funds the work) at a site, post Burlington Northern, it may find itself absorbing the orphan share or at least not knowing whether it will until after a trial on the merits. (Time will tell but presumably summary judgments will become rare on apportionment issues given the fact-intensive nature of the exercise.) A PRP may be reluctant to become the bank where there is a large orphan share if it does not receive assurance that the orphan share will be addressed fairly, and that may mean more than what EPA is currently offering in its orphan share policy. See, generally, Barkett, Orphan Shares, 23 N.R.E. 46  (2008). Consent order and decree negotiations should become less one-sided in the future. But budget constraints may result in more contention (trials), especially in cases where the orphan share potentially is quite large.

Arrangers of used but useful products can take comfort in Burlington Northern. The entity that recycles solvents or used oil, for example, will embrace the decision especially if reclamation wastes are disposed of at a location other than the recycler’s facility. Sellers of used but useful products will as well. Again, the facts will dictate the outcome.


Posted on May 7, 2009 by Jarry Ausherman

In the desert of New Mexico, the effect of another of the new Administration's shifts in previous federal environmental policy is being felt. As difficulties in permitting and building new coal-fired power plants have become more substantial, many power plant projects across the United States that were on the drawing board several years ago have fallen off of it. A notable exception is the Desert Rock Energy Plant, a joint project of the Navajo Nation's Diné Power Authority and Houston-based Sithe Global LLC that would be built on lands of the Navajo Nation. A significant step forward for that project had been EPA's issuance of the PSD permit in July of 2008. But recently, that step forward in air permitting has been followed by an administrative step back.


The Desert Rock Energy Project would involve construction of a 1500 megawatt coal-fired power plant on the Navajo Reservation. EPA's Region 9 had issued a final PSD permit for the project on July 31, 2008. The plant incorporates sophisticated, state of the art air pollution control technology, but it does not employ the coal gasification process known as "integrated gasification combined cycle" technology. Opponents to the project filed petitions with EPA's Environmental Appeals Board for review of the decision issuing the final PSD permit. The opponents raised greenhouse gas issues as well as other air quality and endangered species issues. Project opponents included the State of New Mexico.

In January, Region 9 filed its brief responding to the issues raised by the petitioners except the issue of whether the permit must contain an emissions limit for carbon dioxide. It withdrew the permit's response to comments explaining the basis for not evaluating carbon dioxide emissions in the BACT analysis. Region 9 requested the opportunity to file a Surreply Brief by April 27, 2009 to give EPA officials under the Obama Administration opportunity to consider more fully the positions previously advocated by EPA under the Bush Administration.


The EPA Administrator's office requested that Region 9 reconsider its permitting decision with respect to use of PM10 as a surrogate for PM2.5 to satisfy PSD requirements; consideration of IGCC in the BACT analysis; ESA consultation issues; MACT analysis for hazardous air pollutants; and the sufficiency of additional impact analysis. In response, on April 27, 2009, Region 9 asked the Environmental Appeals Board to remand the PSD permit for reconsideration and development of additional information by EPA. If the motion to remand is granted, the PSD permit will be sent back to EPA for further analysis, which could take many months and trigger another round of public comment.

The request for voluntary remand of this key permit for the high profile Desert Rock Energy Project is evidence of the degree to which the EPA under the current administration is reevaluating previous policy. In the case of Desert Rock, the EPA seeks to reevaluate a permit that it had already issued and defended in an appeal by opponents to permit issuance. If EPA's request for remand is granted, the extent to which EPA changes its permit decision remains to be seen. But the process itself presents the prospect for significant delays and additional public comment at a minimum.

Superfund Liability

Posted on May 4, 2009 by Theodore Garrett

In a stunning 8-1 decision, the Supreme Court changed the landscape of Superfund liability, holding that a company’s mere knowledge of spills in the course of delivery of a product is not a sufficient basis for liability as an arranger, and that defendant may avoid joint and several liability based on reasonable evidence supporting apportionment. Burlington Northern & Santa Fe Railway co. et al. v. United states et al. (No. 07–1601, May 4, 2009.)

In 1960, Brown & Bryant, Inc.(B&B), a now defunct agricultural chemical distributor, began operating on a parcel of land in California and expanded on to an adjacent parcel owned by two railroads. As part of its business, B&B purchased and stored various hazardous chemicals, including a pesticide supplied by Shell Oil Company. Many of these chemicals spilled during transfers and deliveries and equipment failures, resulting in soil and ground water contamination. In 1989, the EPA and the state cleaned up the site and then brought suit to recover their costs against Shell and the Railroads.


The District Court ruled in favor of the Governments, finding that both the Railroads and Shell were potentially responsible parties under CERCLA—the Railroads because they owned part of the facility and Shell because it had “arranged for disposal . . . of hazardous substances,” 42 U. S. C. §9607(a)(3). The District Court apportioned liability, holding the Railroads liable for 9% of the Governments’ total response costs, and Shell liable for 6%. On appeal, the Ninth Circuit agreed that Shell could be held liable as an arranger under §9607(a)(3). Although the Court of Appeals agreed that the harm in this case was theoretically capable of apportionment, it found the facts present in the record insufficient to support apportionment, and therefore held Shell and the Railroads jointly and severally liable for the Governments’ response costs.



Arranger Liability. The Supreme court, in an opinion by Justice Stevens, held that Shell is not liable as an arranger for the contamination at the Arvin facility. Because CERCLA does not specifically define what it means to “arrang[e] for” disposal of a hazardous substance, the phrase should be given its ordinary meaning. In common parlance, “arrange” implies action directed to a specific purpose, thus under §9607(a)(3)’s plain language, an entity may qualify as an arranger when it takes intentional steps to dispose of a hazardous substance. The facts found by the District Court do not support the conclusion that Shell entered into sales with the intent that at least a portion of the product be disposed of during the transfer process. The evidence shows that Shell was aware that minor, accidental spills occurred during transfer from the common carrier to B&B’s storage tanks; however, it also reveals that Shell took numerous steps to encourage its distributors to reduce the likelihood of spills. Thus, Shell’s mere knowledge of continuing spills and leaks is insufficient grounds for concluding that it “arranged for” disposal.


Apportionment. The Supreme Court also found that the District Court reasonably apportioned the Railroads’ share of the site remediation costs at 9%. Calculating liability based on three figures—the percentage of the total area of the facility that was owned by the Railroads, the duration of B&B’s business divided by the term of the Railroads’ lease, and the court’s determination that only two polluting chemicals spilled on the leased parcel required remediation and that those chemicals were responsible for roughly two-thirds of the remediable site contamination—the District Court ultimately determined that the Railroads were responsible for 9% of the remediation costs. The District Court’s detailed findings show that the primary pollution at the site was on a portion of the facility most distant from the Railroad parcel and that the hazardous chemical spills on the Railroad parcel contributed to no more than 10% of the total site contamination, some of which did not require remediation. Moreover, although the evidence adduced by the parties did not allow the District Court to calculate precisely the amount of hazardous chemicals contributed by the Railroad parcel to the total site contamination or the exact percentage of harm caused by each chemical, the evidence showed that fewer spills occurred on the Railroad parcel and that not all of them crossed to the B&B site, where most of the contamination originated, thus supporting the conclusion that the parcel contributed only two chemicals in quantities requiring remediation.


STEVENS, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, BREYER, and ALITO, JJ., joined. GINSBURG, J., filed a dissenting opinion. The following is a link to the opinion: http://supremecourtus.gov/opinions/08pdf/07-1601.pdf.