Manmade Ditch Connecting Land to Waterway Creates Wetland Jurisdiction
Description Appeals court held that the state of Virginia had jurisdiction over control of
property for purposes of compliance with wetlands regulations. The property,
bordered by a highway, was connected to a navigable waterway more than two
miles away by manmade ditches that carried water only intermittently. Under
federal law, this constitutes a wetland, and Virginia law is the same as federal law
for that purpose.
Topic
Environmental Law
Key Words
Clean Water Act; Wetlands; Navigable Waters; Jurisdiction
CASE SUMMARY
Facts
Newdunn bought 43 acres of land in Newport News, Virginia in the 1970s. Most
of the property was wetlands. After a highway was built, the land became
isolated, though connected to a waterway by manmade ditches that run next to or
under the highway. Newdunn contended that the land was no longer a wetland
subject to Corps of Engineer jurisdiction, and without a permit, he began filling
the land for construction. The Corps sued Newdunn in federal court. The State
Water Control Board sued Newdunn in state court under Virginia environmental
law. That matter was moved to federal court. The court held for Newdunn, ruling
that there was no wetland, so the Corps had no jurisdiction, and that the state had
no jurisdiction because state law regarding wetlands has the same meaning as
federal law. The Corps and the state appealed.
Decision
Reversed. A manmade ditch under the highway is a tributary that leads to a
navigable waterway, so the land is part of the navigable waters of the U.S. subject
to wetlands regulations. The fact that the water flow is intermittent and through
manmade passages for over two miles until it reaches a river does not affect its
wetland status. The state court has jurisdiction over this matter. The state uses the
same definition as the federal government as to what constitutes a wetland. Since
this is a wetland, and the matter raised was under state law, it goes to state court.
Citation
Treacy v. Newdunn Associates, LLP, 344 F.3d 407 (4th Cir., 2003)
Restricting Local Land Use to Protect Endangered Species Does Not Violate
Commerce Clause
Description Appeals court held that for the government to restrict local land use to protect a
specie that exists in only one state, and so is not in interstate commerce, does not
violate the Commerce Clause because the purpose of the Endangered Species Act
is national protection of species, not local land use controls.
Topic
Environmental Law
Key Words
Endangered Species; Commerce Clause
CASE SUMMARY
Facts
Rancho Viejo, a real estate development company, wished to build a 202 acre
housing development in San Diego County, California. The Fish and Wildlife
Service (FWS) determined that the plan would jeopardize the arroyo
southwestern toad, which was listed as an endangered specie. Rancho Viejo sued,
contending that the FWS determination was an unconstitutional exercise of
federal authority under the Commerce Clause because the toad did not move in
interstate commerce. The district court dismissed the suit. Rancho Viejo
appealed.
Decision
Affirmed. To survive Commerce Clause review, there must be a rational basis for
a regulation that affects interstate commerce. The Endangered Species Act’s
regulation of commercial activity to preclude takings of protected species was a
constitutional exercise of congressional authority under the Commerce Clause.
The ESA is not a general regulation of land use, so as to be an unlawful assertion
of congressional power over local land use decisions, but rather represents a
national response to a specific problem of national concern.
Citation
Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir., 2003)
Courts Have Broad Discretion to Allocate Superfund Cleanup Costs
Description Appeals court held that by statute, once the EPA has finalized plans for
remediation of a Superfund site, there may be no challenges to the plan based on
statutory or constitutional claims until after the remediation is complete.
Topic
Environmental Law
Key Words
Superfund, Responsible Parties, Special Master, Discretion
CASE SUMMARY
Facts
For decades, two municipal landfills accepted chemical wastes. The EPA
declared the landfills to be Superfund sites because they were leaking chemicals
into groundwater. The EPA identified various parties that contributed to the
waste and entered into consent decrees for them to contribute to the cost of
cleanup. Those parties then sued to hold other parties, including the
municipalities that ran the landfills, liable for contribution. In a long, complicated
litigation, a special master was appointed by the court to try to mediate a
settlement. The special master came to certain conclusions about which parties
contributed how much waste. At trial, the district court did not follow the
conclusion of the special master and allocated much of the liability to the
municipalities that ran the landfills. They appealed.
Decision
Affirmed. Appeals courts will not overturn a district court's allocation of
remediation costs in Superfund cases unless there is an abuse of discretion. It was
within the right of the court not to follow all of the findings of the special master
and to allocate more costs to the municipalities than recommended by the master.
For the court to abuse its discretion, it would have to have committed an error of
law or be clearly wrong in its finding of facts. The allocation of costs in such
complicated proceedings may produce varying results; the court chose a method
of allocation that was proper based on the evidence.
Citation
Goodrich Corp. v. Town of Middlebury, 311 F.3d 154 (2nd Cir., 2002)
Superfund Remedies May Not Be Challenged in Federal Court Until Completed
Description Appeals court held that by statute, once the EPA has finalized plans for
remediation of a Superfund site, there may be no challenges to the plan based on
statutory or constitutional claims until after the remediation is complete.
Topic
Environmental Law
Key Words
Superfund, Remediation, Challenges, Jurisdiction
CASE SUMMARY
Facts
From 1954 to 1978, the City of Fort Lauderdale ran the Wingate landfill.
Contaminated with arsenic and dioxin, the EPA placed the site on the National
Priority List for cleanup in 1989. Seven years later, the EPA issued a remediation
plan for the Superfund site. The state of Florida criticized the cleanup as not
adequate, but the EPA rejected those assertions. Various groups then sued the
EPA contending that the cleanup was inadequate to protect human health, which
the plaintiffs claim, violate the law and the Constitution. The district court
dismissed the suit for lack of subject matter jurisdiction. Plaintiffs appealed.
Decision
Affirmed. Suits by residents living near a Superfund site is a challenge to an
EPA-approved remediation and is barred by statute prior to completion of the
plan. Even if the challenge claims that the remediation plan violates the
Superfund law, suit is barred as it interferes with implementation of the remedy.
Similarly, the law prohibits challenges to remedies based on constitutional
claims. Hence, federal courts have no jurisdiction to hear such suits until the
remedy is completed.
Citation
Broward Gardens Tenants Assn. v. U.S. EPA, 2002 WL 31455516 (--- F.3d ---, 11th Cir., 2002)
Clean Air Act Plans for Areas Not in Compliance Must Show Plans for Progress
Description Appeals court held that the EPA violated the requirements of the Clean Air Act
when it allowed extensions of existing State Implementation Plans for areas not
in compliance without a showing of how those states would take stronger steps to
be in compliance with air quality standards.
Topic
Environmental Law
Key Words
Clean Air Act; State Implementation Plan; Attainment
CASE SUMMARY
Facts
In 1991 the EPA declared the Washington, D.C. Metro area to be in "serious"
nonattainment of the National Ambient Air Quality Standard (NAAQS) for
ozone. As required by EPA rules, the District of Columbia, Virginia and
Maryland had to issue a State Implementation Plan (SIP) to bring the area into
compliance by 1999. Before 1999, at the request of the states, the EPA extended
the deadline for compliance to 2005. The Sierra Club petitioned for a review of
the EPA decision, contending that it did not have the right under the Clean Air
Act to extend the deadline.
Decision
The EPA's decision is vacated. Under the Clean Air Act, the EPA does not have
the authority to extend attainment deadlines without reclassifying the area as in
"severe" nonattainment, which would require other steps to be taken. EPA's
decision was arbitrary and capricious. By law, it has to have SIPs that would
provide for rate of progress reductions, which it failed to obtain from the states.
That is, the SIPs that would go into effect in 1999 would have to have new,
stronger control measures rather than only approve an extension of the controls
specified in the earlier plans.
Citation
Sierra Club v. Environmental Protection Agency, 292 F.3d 155 (D.C. Cir., 2002)
Riverkeepers Organization Has Standing to Sue for Violations of Clean Water
Act
Description Court agreed that a riverkeeper organization had standing to bring a citizen suit
against a city for consistent violations of its wastewater treatment facility permit
that was causing pollution to a river. Since the plaintiffs provided evidence of
damage to their use and enjoyment of the river, the case could proceed.
Topic
Environmental Law
Key Words
Clean Water Act; Citizen Suit; Standing
CASE SUMMARY
Facts
The City of Cochran, Georgia operated a wastewater treatment facility under an
NPDES permit. Treated water is dumped into Jordan Creek, a tributary of the
Ocmulgee River in the Altamaha River basin. For five years, the city regularly
exceeded the effluent limitations in its NPDES permit. The Altahmaha
Riverkeeper (ARK), a non-profit environmental organization founded to protect
and restore the Altamaha River, sued Cochran under the citizen suit provision of
the Clean Water Act. ARK sought injunctive relief against the pollution as well
as civil penalties and attorney fees. ARK moved for partial summary judgment.
Decision
Granted. The citizens gave the state the required 60-day notice of the suit and
filed the suit within 120 days of the date the notice was given to the state. The
residents allegation that the river smelled and looked polluted, and that they use
the river less for recreational, aesthetic and commercial purposes because the city
violates its NPDES permit, sufficiently alleges injury in fact to support their
standing to bring a citizen suit under the Clean Water Act. The remedy sought
under the Act would redress the residents' injuries resulting from the pollution.
The court's remedy would bring the city into compliance with its NPDES permit
so that ARK members could use and enjoy the waterways without fear of
pollution. The fact that the city and the state had entered into an agreement to
bring the facility into compliance does not bar the suit.
Citation
Altamaha Riverkeepers v. City of Cochran, — F.Supp.2d — (2001 WL 1082482, M.D. Ga., 2001)
Local Animal Waste Management Rules May Not Be More Strict Than State
Rules
Description North Carolina appeals court held that a county could not enact ordinances based
on health concerns to regulate swine farm operations more strictly than they were
regulated under various state ordinances. When the legislature has put in place a
comprehensive regulatory scheme, local governments may not enact rules that are
in conflict with state rules.
Topic
Environmental Law
Key Words
Local Ordinances; State Regulation; Swine Farms
CASE SUMMARY
Facts
Chatham County, North Carolina, enacted a county ordinance to regulate swine
farms more stringently than they were regulated under the state's Swine Farm
Siting Act, the Animal Waste Management Systems Act, and various regulations
of the North Carolina Department of Environment and Natural Resources. The
county contended that the state regulations were not adequate, so stricter local
regulations were justified. The Chatham County Agribusiness Council sued to
overturn the county ordinances. The trial court held for the county; the
Agribusiness Council appealed.
Decision
Reversed. The county ordinances, which included health rules, were preempted
by the state statutes that provide a "complete and integrated regulatory scheme"
of swine farms by providing for a system of permits, inspections, setbacks from
other property, buffer zones, and waste management. The county could not
establish regulations more strict than the state statutory scheme that is enforced
by state agencies. The county rules "could undermine the State's attempts to
minimize the regulatory burden and the balance of economic and environmental
interests."
Citation
Craig v. County of Chatham, 545 S.E.2d 455 (Ct. App., N.C., 2001)
All Contributors to Superfund Site Are Liable
Description Appeals court reversed a lower court ruling that contributors to a Superfund site
had to cross a "threshold" level of pollution contribution to be liable for recovery
costs. Liability is imposed on all contributors; the court will allocate costs
according to contribution levels and other equitable factors.
Topic
Environmental Law
Key Words
CERCLA; Recovery Cost; Contribution; PRP; Liability
CASE SUMMARY
Facts
A long portion of the Kalamazoo River is polluted with PCBs and is listed as a
Superfund site under CERCLA. Paper mills located along the river were listed as
potentially responsible parties (PRPs). The mills were joined by other companies
to form the Kalamazoo River Study Group (KSRG), which investigated the
environmental damage prior to recovery efforts. No parties have been adjudged
legally liable for the contamination. KSRG sought to recover investigation
expenses from the various companies that the KSRG study found to have added
PCB to the river. Both Menahsa and Eaton, which have plants on the river
identified as possible PCB sources, refused to contribute to cover KSRG
expenses. KSRG sued. The district court held that firms found to have crossed the
"threshold of significance standard" for contributing pollutants would have to
contribute to cover KSRG expenses. It found that Menahsa and Eaton did not
meet that standard and so did not have to contribute. KSRG appealed.
Decision
Reversed. One discharge into a Superfund site is sufficient to support liability
under CERCLA. There is no need for causation to be shown; that is, that a
particular polluter caused particular problems. Even if Menasha and Eaton are
small PCB contributors, they are liable and no threshold standard is used to
determine that. "After liability has been determined, the district court may
properly consider the causal link between each defendant's waste and the
resulting environmental harm, along with other relevant equitable factors, in
allocating response costs among the liable parties."
Citation
Kalamazoo River Study Group v. Menasha Corp., 228 F.3d 648 (6th Cir., 2000)
Federal Control of Endangered Species on Private Land Does Not Violate
Commerce Clause
Description Appeals court upheld verdict that Congress did not violate the Commerce Clause
by passing the Endangered Species Act, thereby, empowering the Fish and
Wildlife Service to impose regulations on private land in order to protect
endangered specie. There is a sufficient link to interstate commerce for the
regulatory scheme to be rational.
Topic
Environmental Law
Key Words
Engangered Species; Commerce Clause; Takings
CASE SUMMARY
Facts
Under the Endangered Species Act, the Fish and Wildlife Service issued a
regulation limiting the taking of red wolves on private land. The wolves were
produced in a breeding program, then introduced into eastern North Carolina, an
area in which they had been extinct. Mann shot a wolf that was on his property as
he believed it was a threat to his cattle. He was prosecuted for the kill. He, other
residents of the area, and some government leaders sued, contending that the
regulation, and the statute upon which it is based, are unconstitutional because
they violate the Commerce Clause. The district court upheld the FWS regulation
that limited the killing of wolves to restricted circumstances. The property
owners appealed.
Decision
Affirmed. The regulation does not violate the Commerce Clause because
Congress has not exceeded its authority by passing the Endangered Species Act.
It gave the FWS certain powers to regulate economic activity, which includes an
overall federal scheme to protect endangered species, thereby conserving wildlife
resources for the nation, which has economic value.
Citation
Gibbs v. Babbitt, 214 F.3d 483 (4th Cir., 2000)
Species Must Be Listed or Not Listed by FWS within 12 Months of Proposed
Listing
Description Court held for environmental groups that sued the government for not deciding
whether to list endangered or threatened species within 12 months as required by
Endangered Species Act. The claim by the Fish and Wildlife Service that its
budget was too small to study the species properly may be true, but it does not
relieve the duty created by the statute.
Topic
Environmental Law
Key Words
Endangered Species Act; Classifications
CASE SUMMARY
Facts
Environmental organizations sued the Fish and Wildlife Service (FWS) and
Secretary of Interior, claiming they were violating the Endangered Species Act
(ESA) by failing to make timely findings on petitions to list four species as
threatened or endangered under the ESA. The ESA states that species proposed
for listing will be listed or not listed by the FWS within 12 months. The FWS
explained that Congress's moratorium on ESA listings and critical habitat
designations, along with severe funding constraints, essentially shut down the
ESA listing program as of October 1995. Limited funding for the program
became available later in 1996, but a backlog of proposed listings remains.
Plaintiffs insist that FWS must follow existing regulatory procedures to make
listing determinations on specific time schedules under the ESA.
Decision
"I conclude that the Secretary has violated the provisions of the ESA concerning
the 12-month findings" required by the statute for the FWS to make listing
determinations. "I am sympathetic with FWS' position of being given mandatory
duties by Congress without sufficient funds to get the job done. I am also
sympathetic with plaintiffs' frustration at multiple year delays in listing species
which require quicker attention." Since the statute sets time limits for
determination, the Secretary is ordered to complete listing determinations within
a short time.
Citation
Biodiversity Legal Foundation v. Badgley, 1999 WL 1042567 (Slip Copy, D. Ore.)
Responsible Party Must Cover All EPA Costs Related to Superfund Cleanup
Description Appeals court upheld trial court decision that responsible party must cover all of
EPA's costs in supervising compliance with its orders for cleanup of a Superfund
site. EPA could include in its costs its indirect costs.
Topic
Environmental Law
Key Words
Superfund, Administrative Costs
CASE SUMMARY
Facts
In 1981 the EPA discovered chromium contamination at a Chromalloy plant in
Odessa, Texas. After its review, in 1988, EPA ordered treatment of the site. In
1991, Chromalloy and EPA entered into an agreement, under which the company
was to do the prescribed cleanup and reimburse EPA for oversight costs. In 1996,
EPA demanded $470,710 in oversight costs for 1992 through 1994. Chromalloy
protested the amount as too high and claimed it was not responsible for EPA's
indirect costs. District court ruled for EPA; Chromalloy appealed.
Decision
Affirmed. The district court found that EPA accounted for its costs and the court
properly deferred to EPA's expertise. Chromalloy would have to show that EPA
was arbitrary and capricious to avoid liability. Indirect costs are a part of the total
cost incurred by EPA and so are properly included in the total. CERCLA clearly
states that responsible parties will reimburse EPA for all costs incurred in
cleanup.
Citation
U.S. v. Chromalloy American Corp., 158 F.3d 345 (5th Cir., 1998)
Clean Air Act Penalties Must Include Consideration of Financial Condition of
Vendor
Description Appeals court reversed decision of district court to impose almost $3 million in
fines for violations of the Clean Air Act by a bankrupt party. A violator's
financial condition is a factor to be considered when penalties are assessed.
Topic
Environmental Law
Key Words
Clean Air Act, Penalties, Financial Condition
CASE SUMMARY
Facts
EPA successfully sued a real estate developer, who was demolishing old
buildings to renovate a blighted area, for failure to properly contain materials
with asbestos in the buildings. The district court fined the developer the statutory
maximum of $25,000 per day for a total of $2,975,000 in fines for violating
Clean Air Act standards for asbestos. While admitting to the violation of the
standards, the developer appealed that the district court abused its discretion in
setting the penalties without taking into account the financial condition of the
developer.
Decision
Reversed as to amount of penalties. The Clean Air Act imposes strict liability
upon violators in such instances. The developers were "operators" under the
statute, even though they did not own the property. When a fine is imposed under
the Act, it must have some reasonable and proportionate nexus to the violation
and the violators. Given that the developer was bankrupt, the district court abused
its discretion by not taking into account the financial condition of the defendant,
which left it unable to pay the fine.
Citation
U.S. v. Dell's Aquilla, 150 F.3d 329 (3rd Cir., 1998)
Superfund Liability for Parent Firm Based on Degree of Control of Subsidiary
Description Derivative liability for parent firm under CERCLA occurs when the corporate
veil may be pierced, such as when the parent actively controls the operations of
the subsidiary that caused the pollution.
Topic
Environmental Law
Key Words
CERCLA, Derivative Liability, Parent Corporation
CASE SUMMARY
Facts
The U.S. sued CPC, the parent company of a defunct subsidiary, Ott, for the costs
of cleaning up industrial waste generated by Ott. The issue appealed to the
Supreme Court had to do with when CPC could be held liable.
Decision
When, but only when, the corporate veil may be pierced, a parent corporation
may be charged with derivative CERCLA liability for its subsidiary's actions.
Otherwise, the parent is not liable for the acts of its subsidiaries. A corporate
parent that actively participated in, and exercised control over, the operations of
the subsidiary's facility may be liable as an operator of the facility. Liability is not
based simply on ownership of the subsidiary, but the parent may become a liable
"operator" under CERCLA due to joint officers or directors controlling the affairs
of the facility on behalf of the parent.
Citation
U.S. v. BestFoods, 118 S.Ct. 1876 (1998)