Surprise! New WOTUS Rule Leads to Conflicting Rulings

Posted on June 30, 2020 by Rick Glick

It was clear to everyone, including this humble blogger, that EPA’s new rule defining Waters of the United States (WOTUS) would bring little clarity to this fraught area of law.  The rule took effect June 22, but court challenges were already underway, and already we have conflicting rulings, described in this space by Seth Jaffe with his usual alacrity. 

Regardless of what ultimately emerges from this morass, recall that the states have authority of their own and that is probably where practitioners should be focusing in advising clients.  On the same day the WOTUS rule came into effect, the Oregon Department of Environmental Quality (ODEQ) issued a statement including a not too subtle warning about discharging pollutants into state waters without benefit of a permit. 

The ODEQ statement also speaks to state authority under CWA section 401, the subject of another recent EPA rulemaking, and a continuing source of litigation and uncertainty.  As Seth notes, the new WOTUS and 401 rules are complementary.  In its statement, ODEQ encourages project proponents to meet with the agency early for an evaluation of a “project plan.”  Such pre-application meetings are always a good idea—better to anticipate and address issues before they become controversial. 

All of this is pretty interesting for lawyers, but frustrating, time consuming and expensive for clients trying to discern a critical path for development projects.  Surely there is a better approach to ensuring clean water, but it is hard to see one emerging soon.

 

Woe Is WOTUS, Redux

Posted on June 30, 2020 by Seth Jaffe

Sometimes, history repeats itself.  Sometimes, that is not a good thing.

After the Obama WOTUS rule was promulgated in 2015, the challenges came fast and furious, and in multiple forums.  The Supreme Court, as I put it, adopted the “give me a break” theory over the “just plain nuts” theory, and ruled that challenges to the rule had to be heard in district courts.  The text of the statute made pretty clear that such challenges did belong in district courts, and the Supreme Court felt no need to address concerns that it was just plain nuts to have multiple courts reviewing this issue, leading to a patchwork of different rulings.  That’s Congress’s problem!

As anyone who remembers those halcyon days can attest, chaos did indeed result, with roughly half the states ending up subject to the Obama rule and half subject to the prior rule and the post-Rapanos guidance.

Now comes the Trump WOTUS rule, which became effective yesterday.  It looks like déjà vu all over again.  On Friday, two courts weighed in, with a judge in California declining to enjoin the rule and suggesting very strongly that EPA would prevail with its argument that the rule is entitled to Chevron deference, while a judge in Colorado enjoined the new rule, concluding that five justices in Rapanos precluded the new rule’s interpretation of WOTUS, thus barring any reliance on Chevron.

Other than saying “I told you so,” I think that the biggest takeaway so far is that, to the extent that the California decision carries the day, it’s also good news for fans of EPA’s recently released rule on section 401 water quality certifications.  It basically adopts lock, stock, and barrel EPA’s rationale for why it can ignore a seemingly contrary Supreme Court decision.  The short version is that the Supreme Court Brand X decision holds that, where the Supreme Court upholds an agency interpretation of an ambiguous statutory provision, that does not preclude the same agency from later adopting a contrary interpretation, so long as the new interpretation is also permissible under Chevron.

Time will tell which position prevails, at least in the lower courts.  This one does seem likely to make it back to SCOTUS.  For better or worse – likely worse – we might finally get some clarity on the definition of the waters of the United States.  Until then, I am confident that chaos will reign.

Welcoming Our New Honorary Member: John Echohawk

Posted on June 29, 2020 by Andrea Field

One of the perquisites of serving as President of the ACOEL is being able to select this year’s Honorary Fellow of the College.  When faced with a stack of nominating papers, I asked my predecessor, Allan Gates, for guidance on how to make my choice.  Our conversation was roughly as follows.

Me:  What are the criteria for choosing an Honorary Member? 

Allan:  You’ll know it when you see it.

Me:  That’s the standard Justice Stewart applied when determining whether certain material was obscene.  As I recall it, his reference point was something he had seen in Casablanca.  Could you be a bit more helpful in explaining how that standard applies here?

Allan:  You’ll know it when you see it.

It turns out that Allan’s advice was spot on.  When I saw the nomination papers for John Echohawk, I knew without a doubt that he was the person who should become an Honorary Fellow of the College this year.  Let me here share with you some of the information that I received from College members about John Echohawk, information that made it very easy for me to choose John as this year’s ACOEL Honorary Fellow. 

John Echohawk – the Executive Director of the Native American Rights Fund – is a giant in the field of Native-American sovereignty, Tribal natural resources and environmental rights, and Tribal water rights.  He was the first graduate of the University of New Mexico’s special program to train Indian lawyers and was a founding member of the American Indian Law Students Association while in law school.  John helped found NARF in 1970 (barely a year after he graduated from law school), and he has served continuously as NARF’s Executive Director since 1977.  Under John’s leadership, NARF has represented Tribal interests in numerous high-profile cases in which his clients have sought, among other things, to protect the Badger-Two Medicine Area, prevent the shrinkage of Bears Ears National Monument, challenge the Trump administration’s plan to open up the Arctic National Wildlife Refuge, and halt the Dakota Access pipeline and the Keystone XL pipeline.

John is now widely recognized as having distinctly shaped and enforced Tribal sovereign rights through his organization’s legal advocacy.  The National Law Journal has listed John as one of the 100 most influential lawyers in America, and he has received numerous service awards and other recognition for his leadership in the Indian law field.  According to a June 24, 1988 profile in the New York Times, John’s success in asserting Tribal interests is so well known that “many public and private interests now seek to negotiate disputes with tribes over energy, water and sovereignty rather than face off in court against [Mr. Echohawk and his NARF colleagues].”  Noting that John is more than just a skilled attorney, the Times quoted from several governors who had been on the opposite side of the negotiating table from him in contentious matters and who came away from their experiences praising John’s collaborative style.  Said former South Dakota Governor Bill Janklow, John “genuinely wants to seek a solution where everyone can live together afterwards.”  And former Arizona Governor Bruce Babbitt then added that “if there is a charisma that emanates from silence, [John Echohawk’s] got it.”

Having started this article with a reference to one Supreme Court Justice, let me close with a reference to another.  I do so with an anecdote shared by Ken Salazar, who – over three decades – worked directly with John Echohawk on environmental and natural resources matters.  “We were both active Presidential appointees to the National Water Policy Commission in the 1990s.  During my time as Secretary of the Interior, I often sought Mr. Echohawk’s advice as we resolved the most complex and significant water rights Tribal cases in the United States and resolved seminal land trust management litigation. . . . John Echohawk is the Thurgood Marshall of Native American law.”

When told about his election as an Honorary Member of the College, John expressed thanks for the recognition and noted that the “Native American Rights Fund has always believed that environmentalists have the same values as traditional Native Americans.”  He said he looks forward to joining us “virtually” at our October 2, 2020 Annual Meeting. 

In addition to asking John to join us for our virtual meeting in 2020, we plan to invite him to join us for our next in-person Annual Meeting program, which is being planned for 2021.  It is a great honor to have John Echohawk become part of the American College of Environmental Lawyers.    

Texas’ Affirmative Defense SIP Provisions: National Policy or Regional Action

Posted on June 23, 2020 by Paul Seals

Why is the legal challenge of EPA’s approval of the affirmative defense provisions in Texas’ state implementation plan (SIP) the subject of a venue battle?  Why did the Sierra Club and eight other environmental groups (Petitioners) sue EPA in the D.C. Circuit when they filed their lawsuit on April 7, 2020?  Why are EPA, Texas and industry intervenors fighting to dismiss the suit or have it transferred to the 5th Circuit?  The answers depend on the construction of the Clean Air Act (CAA) judicial review provisions.  Did EPA’s decision constitute a policy of national applicability or is the decision of local or regional applicability?

On February 7, 2020, EPA approved the withdrawal of Texas from EPA’s 2015 SIP call, which was related to the affirmative defense provisions in Texas’ SIP applicable to excess emissions that occur during startup, shutdown or malfunction.  EPA determined that affirmative defense provisions made the SIP substantially inadequate to meet the CAA requirements.  Texas was one of 17 states subject to the 2015 SIP call, which was based on EPA’s 2015 interpretation of the a 2014 D.C. Circuit decision in NRDC v. EPA, 749 F.3rd 1055, holding that affirmative defenses are unlawful in emission standards established under CAA Section 112.   

EPA’s approval of the withdrawal reinstates Texas’ affirmative defense provisions of the Texas SIP, which had been approved by EPA in 2010 and upheld by the 5th Circuit in 2013.  See Luminant Generation Co. v.  EPA, 714 F.3d 841.  The Court found that EPA’s interpretation of the Clean Air Act (CAA) to allow affirmative defenses in CAA Section 110 SIPs was a permissible interpretation.

In their lawsuit, the Petitioners claim that EPA is setting national policy regarding affirmative defenses and the EPA’s action regarding Texas’ SIP should be reviewed by the D.C. Circuit.  Texas responds that EPA’s action to withdraw of a single state from a SIP call issued to multiple states is locally or regionally applicable.  Accordingly, the D.C. Circuit should have no jurisdiction to review EPA’s action.

Is the Texas SIP decision nationwide in scope or effect?  Alternatively, does the EPA action reflect Texas-specific circumstances – a prior approval by EPA, which was upheld by the 5th Circuit?  Will the D.C. Circuit dismiss or transfer the litigation to the 5th Circuit?

The American College of Environmental Lawyers Announces Newly-Elected Fellows for 2020

Posted on June 22, 2020 by Blogmaster

The American College of Environmental Lawyers is proud to announce the election of twenty-seven new Fellows and one Honorary Fellow to membership in the College. These highly accomplished individuals were selected for their many years of substantial contributions to the field of environmental law and their high standards of practice.

ACOEL President, Andrea Field of Hunton Andrews Kurth LLP, stated, "The twenty-eight lawyers elected as Fellows to the College this year have earned this recognition based on the numerous contributions that – over many years – they have made in diverse areas of environmental law and policy.  Drawn from all parts of the country, they represent the very best environmental lawyers in government service, public interest, academia, and private practice.  I am delighted to welcome each and every one of them to the College.” 

Our newly elected Honorary Fellow – a designation bestowed by the President of the College for sustained leadership - is John Echohawk, Executive Director and founder of the Native American Rights Fund in Boulder, Colorado and a luminary in the development of law at the intersection of environmental and tribal rights.

The newly elected Active Fellows are:

Susan Amron, General Counsel, New York City Dept. of City Planning (NY)
Michael Burger, Executive Director, Columbia University Law School Sabin Center (NY)
Lisa Carlson, Deputy Attorney General, Environmental Quality Section Chief, Idaho Office of the Attorney General (ID)
Steve Chester, Attorney and Counselor at Law, Miller, Canfield, Paddock and Stone (MI)
Nadira Clarke, Partner, Baker Botts (DC)
Stacey Geis, Managing Attorney, CA Regional Office, Earthjustice (CA)
Vinette Godelia, Shareholder, Hopping, Greens & Sams (FL)
Monique Harden, Assistant Director of Law and Public Policy, Deep South Center for Environmental Justice (LA)
Sean Hecht, Co-Executive Director, Emmett Institute on Climate Change and the Environment, UCLA School of Law (CA)
Melissa Hoffer, Chief, Energy and Environment Bureau, MA Office of Attorney General (MA)
Rachel Jacobson, Special Counsel, WilmerHale (DC)
Robin Main, Partner, Hinckley Allen (RI)
David Mandelbaum, Shareholder, Greenberg Traurig LLP (PA)
Deborah Mans, Deputy Commissioner, NJ Department of Environmental Protection (NJ)
Jessica Merrigan, Partner, Spencer Fane (MO)
Jonathan Niermann, Chairman, TX Commission on Environmental Quality (TX)
Jennifer Nijman, a Founding Partner, Nijman & Franzetti (IL)
Hari Osofsky, Dean, Penn State Law and the School of International Affairs, Pennsylvania State University (PA)
Peggy Otum, Partner, WilmerHale (CA)
Gerald Reid, Commissioner, ME Department of Environmental Protection (ME)
David Shorr, Partner, Lathrop GPM (MO)
Bob Stokes, Executive Director, Galveston Bay Foundation (TX)
Timothy Webster, Partner, Sidley Austin (DC)
Dan Whittle, Senior Attorney and Senior Director, Environmental Defense Fund (NC)
LaJuana Wilcher, Partner, English, Lucas, Priest, & Owsley LLP (KY)
Ezekiel Williams, Director, Lewis Bess Williams & Weese (CO)
Sandi Zellmer, Professor and Director of Natural Resources Clinics, University of Montana Law of School (MT)

The Future Is As We Now See It – Environmental Development Resiliency and Disaster Planning

Posted on June 17, 2020 by Kevin Murray

Successful real estate developers and development attorneys must effectively anticipate and manage risk. Management of visible and known risks seem simple; what separates the great from the good is the ability to anticipate, plan for, and develop contingencies for unknown risk scenarios. I have previously written about the importance of resilient development planning for extreme weather conditions and regional/national disasters. It is clear that extreme weather events affect the way we live and must be taken into consideration if we are to plan and develop our environmentally sustainable and resilient communities. Pandemic planning now finds itself a critical part of disaster planning and is likely to have a profound and lasting influence on environmental resiliency.

These environmental conditions affect physical, transactional, and legal aspects of real estate. Physical impacts appear as structural, corporeal, or earthly damages or modifications. Physical impacts present very real safety risks to site occupants such as failing structures and, exposure to life- threatening elements and hazardous substances. The recent pandemic has highlighted what was a subset of physical impacts, that is the health of the occupants as they live, work and occupy spaces.

Over the course of recent decades, mixed use developments became extremely popular with developers, municipal jurisdictions, and users. The notion of sustainable walkable communities has seen a proliferation of “self-contained communities” to support the growing desire for a more compact lifestyle where living, work and recreation coexist. The COVID Pandemic will result in the development of new regulation and a fresh look at development as a whole, but clearly with self-contained walkable communities and mixed use. Especially where users live on top of the commercial, retail, restaurant and recreational spaces they frequent.

Energy efficiency through sealed buildings had already begun to fade, air flow and fresh sources of filtered air will see increased interest and likely regulatory focus. The need to regulate how people congregate and the general flow through space may take on a regulatory aspect. Occupancy limits already exist for general safety, perhaps viral exposure may now factor into those calculations, and the imposition of formal requirements for table and general distancing in floor space. A demand for (and likely regulatory requirements), may extend into amenities that feature no touch surfaces, doors, toilets, sinks, retail checkout, retail goods selection, shelving, clothing racks, elevators, windows. Internet orders and drive up pickup may see a continued demand for convenience and safety. Ever-present hand sanitizer and disinfecting wipes will become required and as common place as a box of tissue.

The importance of all this however is to note that management of risk means mitigation. The traditional legal defenses like force majeure and impractability continue to erode in favor of reasonable foreseeability of extreme events. Successful developers and their attorneys will plan for these contingencies both to protect their uses and themselves in an ever changing regulatory environment. Proper engineering and design are necessary to protect the people that live and work in these communities and the companies and contractors that establish them. Resilient real estate development must adapt and engineer buildings and communities sustainable under foreseeable extreme conditions.

Return to Maui and Upstate Forever

Posted on June 16, 2020 by Patrick A. Parenteau

Despite losing his bid to have the U.S. Supreme Court declare that wastewater  discharges through groundwater can never be subject to the permit requirements of the Clean Water Act (CWA), Maui County Mayor Michael Victorino, Law 360 reports,  has vowed to keep fighting . The Court did not rule on the merits of whether Maui’s injection wells do in fact require a permit, but instead remanded the case to the Ninth Circuit, which sent it back to the district court, for it to apply a newly announced test--make that determination applying its new test--whether Maui’s indirect discharge to the ocean is the “functional equivalent” of a direct discharge.

Justice Breyer explained that the “functional equivalent” test comprises  7+ factors. After shelling out a reported $4 M in legal fees (with little to show for it),  Mayor Victorino might have wanted to spare the taxpayers the additional expense of a trial and further appeals and agreed to the settlement that the County Council had approved last year.  But Apparently not.  Perhaps cooler heads may prevail at some point but meanwhile attention shifts to the remand to the Fourth Circuit of the other groundwater discharge case-- Upstate Forever v Kinder Morgan.

Followers of this blog may recall that this case involved a 2014 incident in which a ruptured pipeline owned by a subsidiary of Kinder Morgan Energy Partners spilled 369,000 gallons of gasoline into the soil and groundwater near Belton, South Carolina. Kinder Morgan repaired the pipeline and managed to recover some of the spill but not before it traveled through the groundwater and was detected in nearby wetlands and streams. The plume of gasoline has continued to contaminate surface waters despite implementation of a cleanup plan ordered by the South Carolina Department of Health and Environmental Control.

The Kinder Morgan litigation involved a federal Clean Water Act  citizen suit brought by the plaintiffs--Upstate Forever and Savannah Riverkeeper--alleging that the spill is polluting two tributaries of the Savannah River-- Browns Creek and Cupboard Creek-- and their adjacent wetlands. The pipeline ruptured less than 1000 feet from Browns Creek and 400 feet from Cupboard Creek. Plaintiffs asserted that the resulting spill constituted the unlawful discharge of pollutants from a point source in violation of section 301 (a) of the act.

In a split decision the Fourth Circuit panel ruled in plaintiffs’ favor. Over a stinging dissent by Judge Floyd the panel majority rejected Kinder Morgan’s argument that since the leak had been fixed there was no “ongoing violation,” a prerequisite to a citizen suit under the Supreme court’s Gwaltney decision.. The panel declined to adopt the Ninth Circuit’s “fairly traceable” test in the Maui case and acknowledged the contrary rulings of the Sixth Circuit in Kentucky Waterways Alliance et al v. Kentucky Utilities Co. and Tennessee Clean Water Network v. Tennessee Valley Authority--that leachate from coal ash pits did not constitute discharges from a point source. Instead the 4th Circuit panel cited EPA’s longstanding position (since disavowed by the Trump administration) that discharges from a point source via ground water having a “direct hydrologic connection” to surface water are subject to CWA permit requirements.

The Fourth Circuit is likely to send the case back to the South Carolina district court, which will have the unenviable task of trying to decipher Justice Breyer’s multi-factor test. Justice Breyer provided this not terribly helpful guidance:

Time and distance will be the most important factors in most cases, but other relevant factors may include, e.g., the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Courts will provide additional guidance through decisions in individual cases.

If time and distance are controlling, the Belton pipeline leak would presumably qualify as the functional equivalent of a direct discharge. The leak occurred within 400’ of one stream and 1000’ of another. It reached the first one within two months. The gasoline did not undergo any chemical change and was not diluted to any substantial degree. More than half of the spill was not recovered and is continuing to pollute the surface waters So, it clearly meets the test, right?

And yet it does seem odd that an accidental spill from a broken pipeline that has since been plugged and is undergoing cleanup--albeit not at the pace the plaintiffs would prefer-- would be the functional equivalent of a direct discharge requiring a permit. Frankly the NPDES program seems a poor fit for a release resulting from an accident rather than one resulting from routine and periodic releases from routine operations.

The Maui injection wells, on the other hand, were used as an alternative to a direct ocean discharge via an outfall, which, legend has it, were opposed by the surfers at Kahekili Beach.  The facts of Maui do seem to easily fit within Breyer’s functional equivalent construct. So why didn’t the Court so rule?

EPA Finalizes New Clean Water Act Section 401 Certification Rules—Will States Bite Back?

Posted on June 10, 2020 by Rick Glick

On June 1, 2020, the Environmental Protection Agency released its new rules implementing section 401 of the Clean Water Act (CWA). Section 401 provides that before a federal agency can approve a project that may result in a “discharge to the navigable waters” the applicant must obtain water quality certifications from the affected state. The certification encompasses compliance with water quality standards and “any other appropriate requirement of State law.”

However, the state is deemed to have waived its delegated authority under section 401 if it "fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request." The rules adopt the D.C. Circuit’s view in Hoopa Valley Tribe v. FERC that one year means one year, and they narrow the scope of conditions that states can impose on a project as part of the certification.

One Year Means One Year

The section 401 process has been controversial in the context of energy infrastructure projects requiring federal approvals, such as natural gas pipelines, LNG terminals and hydroelectric facilities. Historically, states have commonly avoided the one-year limit by allowing multiple cycles of withdrawal-and-resubmittal of 401 certification applications, stretching the review period over many years.

This in part was thought necessary to allow adequate time to assess the water quality effects and appropriate mitigation measures for complex facilities, which would often draw comments from many stakeholders seeking to influence the terms of a new certification. However, in Hoopa Valley the court rejected this workaround and denounced the withdrawal-and-resubmittal practice as a tool “for states to use Section 401 to hold federal licensing hostage.”

Shortly after Hoopa Valley, President Trump issued an Executive Order “Promoting Energy Infrastructure and Economic Growth,” for the stated purpose of making the regulatory process more efficient and creating “increased regulatory certainty.” Among other things, the Executive Order directed EPA to review federal policy and regulations on section 401 implementation in light of the Hoopa Valley decision.

With the new rules, EPA has adopted Hoopa Valley’s position that the one-year limit of section 401 actually means one year, and explicitly rejected state practices resulting in certification processes extending to several years. The rules make clear that upon receiving a complete 401 certification application, a state has one year to grant, grant with conditions, or deny the certification. Failure to do so will result in the state having waived its delegated authority with respect to the project under consideration.

Scope of 401 Certification Conditions

The Supreme Court has ruled that section 401 confers on a state broad authority to impose conditions on a water quality certification. In the 1994 case of PUD No. 1 v. Wash. Dep’t of Ecology, the Court found that water quality certifications could include conditions related to quantity of water flow, holding that a state could require minimum stream flows as part of the section 401 certification. Twelve years later, the Court found in S.D. Warren Co. v. Me. Bd. Of Envtl. Prot. that states have broad latitude in imposing conditions that are not directly water quality-related, such as provision for fish passage or recreation.

However, in the preamble to the rules, EPA found that nothing in the CWA nor section 401 contains any statement suggesting that section 401 “authorize[s] consideration or the imposition of certification conditions based on air quality or transportation concerns, public access to waters, energy policy, or other multi-media or non-water quality impacts.”

EPA reasoned that the phrase “any other appropriate requirement of State law,” often used to justify broad state authority, only included “those provisions of State or Tribal law that contain requirements for point source discharges into water of the United States.” The rejection of conditions not directly related to water quality seems to ignore Supreme Court guidance in PUD No.1 and S.D. Warren.

The Rules’ Prospects in Court

The new rules are certain to draw legal challenges from environmental groups and from states concerned that EPA’s interpretation denies them the full authority conferred under the statute.

EPA’s interpretation that one year means one year is consistent with Hoopa Valley and with subsequent decisions and may fare well in court.  However, narrowing the scope of the states’ authority to impose conditions on a certification will face serious judicial scrutiny in light of PUD No. 1 and S.D. Warren. In addition, opponents of the new rules may take issue with EPA’s authority, or lack thereof, to make rules governing how a program delegated to states should be administered.

Remembering that BLM Stands for Black Lives Matter, Not That Government Agency

Posted on June 8, 2020 by Andrea Field

Saying nothing about racial injustice should never have been an option.  And it is not an option now.  Saying I lack the right words should never have been a reason not to try to find those words.  And it is not a reason now.  Fearing I, a white woman, will say the wrong words and make myself vulnerable to criticism should never have been – and is not now – an option.

What finally pushed me past such concerns and fears was the willingness of a colleague of mine, Wendell Taylor, to make himself vulnerable.  Wendell – a black man – is my office managing partner.  In a recent virtual meeting with over 100 lawyers and non-lawyers in our office, he talked directly and personally about the unrest in the nation.  Pointing out the lack of basic human empathy in the officers involved in the killing of George Floyd, Wendell chose to promote more open discussions and empathy by sharing examples of his own negative encounters with law enforcement.  He said he’d always “had the mindset that the adversity you face might shape you but you can’t let it define you.  I’m not defined by these stories but they certainly helped shape me.  So when I’m asked to talk with groups – particularly about leadership – I usually focus on how overcoming adversity has helped me to become an effective leader.  Inevitably, I turn to my negative encounters with law enforcement for examples.”  And then Wendell told of instances when he was in middle school, college and law school – instances when he was doing nothing wrong (indeed, when he was being exceptionally careful not to do anything wrong) – which led to threatening encounters with police officers.

The stories Wendell shared are his and I will not repeat them here.  But his stories are not unique.  Indeed, immediately after he spoke, colleagues of color shared some of their own stories.  And all of you have certainly heard (or experienced) similar things.  You’ve seen similar things in the news.  You’ve read (or, if you have not, you should read) Brenda Mallory’s blog post from August 7, 2019. 

After sharing his stories, Wendell chose to say something more.  He chose to respond to his white colleagues, who have asked what they can do in their daily lives to make a difference in the fight to address such longstanding injustices.  Believing that his response helped me and others, I have summarized it below, adding a few thoughts of my own.  I am confident you will be able to figure out which thoughts were added by the white woman.

  • Resist the urge to turn away.  If you resisted watching the 9-minute recording of George Floyd being slowly murdered, watch it.  It is difficult to watch.  It is gut-wrenching.  But seeing the recording helps foster the empathy that is needed in these times.  Empathy is what others feel.  Allow yourselves to feel the pain.  Make it your pain.  Empathy is not a cure for the structural racism that exists in this country, but it’s a start. 
  • Don’t make the mistake that a conviction of those who killed George Floyd ends the fight against structural racism.  Find ways to keep fighting against injustice.  Contribute your time and/or money to worthy causes.  You’re good researchers:  you can find the cause(s) worthy of your support.
  • Challenge divisive views from people in your circles.  Challenge people to think critically about the issues. Silence is no longer an option.  Silence is complicity.
  • Don’t get discouraged if black people or other people of color are critical of your attempts to lend a hand or otherwise resist your efforts to get from them a comprehensive game plan for what you should do next to show your support.  It’s been a rough time for us all, and it doesn’t have to be the job of black people to help you understand what they’ve lived with all their lives.  Want to read a book?  Try “White Fragility” by Robin Diangelo.  Parts of it are a slog, but after reading it, you will (I hope) never again blithely claim to be “color blind.”  Nor will you resort to “white women’s tears” (or the male equivalent) if your longstanding views on racial justice are challenged.  Instead, perhaps, you will be able to open your heart to feeling the pain of those who’ve felt the brunt of racism their entire lives and be able to open your mind to constructive ways to doing the next right thing to help address that pain.  That’s empathy, and as Wendell pointed out, even if that’s not a cure-all, it’s a start. 

Note:  Andrea Field is the current President of the American College of Environmental Lawyers.  The views expressed in this articles are her own.  She encourages other Fellows to express their views in whatever ways they feel are appropriate.

EPA Is The CERCLA Gatekeeper: Plaintiffs Need EPA Approval To Seek State Court Damages For Restoration

Posted on June 3, 2020 by Theodore Garrett

Landowners seeking restoration damages in state courts, at sites where there is a cleanup remedy previously selected by EPA, may pursue such claims only if they first obtain EPA approval for the proposed restoration work.  Atlantic Richfield Co. v. Christian (No. 17–1498, April 20, 2020). https://www.supremecourt.gov/opinions/19pdf/17-1498_8mjp.pdf

The Atlantic Richfield decision may have the effect of  avoiding collateral attacks on EPA cleanup decisions by placing EPA in the role of gatekeeper for state lawsuits seeking restoration damages.  In the present case, EPA stated that the landowners’ restoration plan, if implemented, would interfere with EPA’s approved cleanup by, for example, digging up soil that has been deliberately capped in place.  The court’s decision in Atlantic Richfield may also have the effect of avoiding the award of windfall profits in cases where plaintiffs seek huge “restoration damages” that go well beyond actual compensatory damages they have suffered.

For many years EPA worked with , the current owner of a former smelter, to implement a cleanup plan expected to continue through 2025 for remediation of contaminated soil.  A group of 98 landowners sued Atlantic Richfield in Montana state court for common law nuisance, trespass, and strict liability, seeking restoration damages. The damages sought by plaintiffs were based on a proposed restoration plan that went beyond the measures that EPA found appropriate to protect human health and the environment.  The trial court granted summary judgment to the landowners on the issue of whether CERCLA precluded their restoration damages claim, and the Montana Supreme Court affirmed.  The US Supreme Court reversed and remanded. 

The Supreme Court first needed to decide whether CERCLA deprived the Montana courts of jurisdiction.  The landowner’s claims for trespass and nuisance arise under Montana law not CERCLA, the Court held, and thus are not barred by Section 113(b) of the Act, which provides that federal District Courts have exclusive original jurisdiction “over all controversies arising under this chapter.”  Similarly, the Court held that a suit in Montana state court is not precluded by CERCLA §113(h), which states that “[n]o Federal court shall have jurisdiction under Federal law . . .to review any challenges to removal or remedial action” selected under CERCLA.  In short,  §113(b) deprives state courts of jurisdiction over cases arising under CERCLA, while §113(h) deprives federal courts of jurisdiction over certain challenges to Superfund remedial actions.

The parties conceded that under  §122(e)(6) of CERCLA, when EPA or a responsible party has initiated a remedial investigation and feasibility study for a particular facility, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by EPA.  The court in Atlantic Richfield held that because arsenic and lead are hazardous substances that have “come to be located” on the plaintiffs’ properties, the plaintiffs are potentially responsible parties under  §107(a) of CERCLA.   Therefore, under the statute, the plaintiffs claim for restoration damages may proceed only if the landowners first obtain EPA approval for the restoration work they seek to implement. 

What are the implications of the Court’s ruling?  Justice Gorsuch, joined by Justice Thomas dissented, stating that the Court’s reading of the Act endorses “paternalistic central planning” and turns a cold shoulder to “state law efforts to restore state lands.”  This argument was not compelling to the majority because, as the Court’s opinion notes, cleanup plans generally must comply with applicable or relevant and appropriate state environmental standards and, moreover, states have opportunities for involvement in developing and selecting cleanup plans.  The court’s ruling in Atlantic Richfield may also head off what are, in effect, collateral attacks on EPA’s remedial decisions and the confusion and delay threatened by such lawsuits.  

The Atlantic Richfield decision may serve to avoid unjust awards of windfall profits to plaintiffs who seek so-called restoration damages that go beyond any actual damages.  Indeed, litigation in Montana illustrates the basis for such concern.  In Sunburst School District No.2 v. Texaco, 165 P.3d 1079 (2007), the  Montana Supreme Court approved an award of damages that Texaco claimed would exceed the value of the property allegedly damaged and thus would result in a windfall.  The Court recognized the problem identified by Texaco, citing Montana law that an injured party should be made whole but not profit.  However, the court in Sunburst found that the general rule in favor of diminution in value as the appropriate measure of damages can be overcome where the record shows that an award of restoration damages will actually be used to repair the damaged property rather than simply paid to plaintiffs. 

The Supreme Court’s decision in Atlantic Richfield  may avoid the need for a trial court to deal with “windfall profit” issues in cases where plaintiffs are responsible parties, EPA has selected a CERCLA remedy, and EPA has not authorized the restoration plan.  In Atlantic Richfield, EPA represented that the landowners’ restoration plan would dig up soil that has been deliberately capped in place under the EPA approved remedy found to be protective.  In such a case, one can understand why EPA would not authorize the restoration plan.

The Court’s decision in Atlantic Richfield does not address “restoration damage” claims where the plaintiffs are not potentially responsible parties, e.g. parties owning property that is not contaminated but present common law claims such as diminution of value.  Although “restoration damage” suits were infrequent in the past, the Atlantic Richfield decision may serve to prompt an increase in such claims under state law.  Adjacent landowners could sue for “cleaner than clean” restoration damages, i.e. providing more (and much more expensive) remediation than required under state environmental requirements.  Trial courts in such cases will presumably be mindful of the fact that plaintiffs have other remedies under state law for compensatory damages measured by diminution of value.  Moreover, defendants, aware of  potential “windfall profit” concerns, may ask the trial court to require periodic reimbursement by defendants of actual restoration costs -- instead of a lump sum -- to deal with concerns that plaintiffs may decide to pocket the damage award rather than implement all or most of the restoration plan presented to the court.