Sidley Environmental Trends

Topics discussed this week include:

  • Courts dismiss challenges to advisory panel membership policy.
  • Groups sue EPA for overdue spill regulations.
  • Environmental groups threaten suit over oil dispersant guidelines.
  • Court: Clean Air Act does not preempt odor nuisance claims.
  • Court holds that long-defunct companies may still face CERCLA liability.
  • New York close to banning plastic bags.
  • Environmental groups sue Iowa, asserting constitutional right to clean water.
  • Court strikes down Arctic drilling executive order.
  • Court rejects foreign policy objection to denial of Clean Water Act certificate.

Courts dismiss challenges to advisory panel membership policy. Two district courts dismissed environmental groups’ suits challenging a U.S. Environmental Protection Agency (EPA) prohibition on grant recipients serving on scientific advisory committees. In the first suit, in the Southern District of New York, plaintiff Natural Resources Defense Council (NRDC) argued that, instead of avoiding potential conflicts of interest, EPA actually intended to increase industry participation on science panels. However, the court held that the group lacked standing, as the policy did not injure the plaintiff’s members. No NRDC members were denied membership on a panel because of the policy, and it could not sue merely to promote its claimed mission of safeguarding science. The second district court opinion, issued a few days later in the District of Massachusetts, found that a professor had standing by choosing to withdraw from an EPA grant-funded project in order to maintain her position on an EPA advisory committee. The court, however, upheld the policy, rejecting the argument that the Federal Advisory Committee Act’s requirement that committees be “fairly balanced” barred the policy and ruling that EPA adequately explained the policy’s rationale.

Groups sue EPA for overdue spill regulations. Several environmental groups filed suit, alleging that EPA failed to promulgate hazardous waste release plan regulations for chemical plants. According to the suit, the Clean Water Act required EPA to issue the regulations by August 1992, but the agency never issued them. The groups cited chemical releases during Hurricane Harvey as demonstrating the need for spill prevention and response plan regulations addressing worst-case scenario releases, especially for plans near rivers or in flood plains.

Environmental groups threaten suit over oil dispersant guidelines. Several environmental groups filed a notice of intent to sue EPA for failing to update its guidelines on the use of oil dispersants during a spill response. The groups claim that the dispersants, which help degrade oil released on water, are harmful to responders and marine wildlife. EPA proposed amending the National Oil and Hazardous Substances Pollution Contingency Plan in January 2015 to introduce new standards for the use of chemical dispersants but never finalized the proposed rule. The current guidelines have been in place since 1994.

Court: Clean Air Act does not preempt odor nuisance claims. The Northern District of New York denied a landfill operator’s motion to dismiss a putative class’ negligence claims stemming from an allegedly foul smelling landfill and recycling center. The court rejected the defendant’s claim that common law torts related to odor emissions were preempted by the Clean Air Act. Acknowledging that the U.S. Court of Appeals for the Second Circuit had not yet addressed the issue, the court relied on the Third Circuit’s opinion in Bell v. Cheswick Generating Station and the Sixth Circuit’s opinion in Merrick v. Diageo Americas Supply to hold that the Clean Air Act’s savings clause allowed for common law claims related to air emissions without disrupting the Act’s permitting scheme.

Court holds that long-defunct companies may still face CERCLA liability. The U.S. District Court for the Southern District of Ohio held that companies may be liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) even if they dissolved long before the filing of a suit. The court held that three former paper companies that dissolved without any assets in 1992 are still “persons” under CERCLA and thus may still be liable for cleanup costs at a Dayton paper mill site. According to the court, there is no exemption from the definition of “persons” for dissolved companies and that the definition should be applied at the time that an entity contributed to site contamination, not years afterwards when suit is filed. The court held that, while it may be practically difficult to obtain monetary contributions from defunct entities, it speculated that there could still be insurance policies that cover environmental liabilities or a way to pierce the corporate veil to reach a different entity. The ruling deepens a split among federal district courts as to whether defunct corporations may still be “persons” under CERCLA.

New York close to banning plastic bags. New York legislative leaders and the Governor agree that the 2019-20 state budget should include a ban on single-use plastic bags used by retailers. Legislators are still weighing related options under the ban, such as adding a fee on paper bags and whether municipalities can opt out of the ban. Some county governments have already banned plastic bags. Business groups are opposing the ban, citing a report by the Department of Environmental Conservation estimating that New York is home to about 30 businesses that manufacture plastic bags, employing nearly 1,500 people. Environmental groups support the ban and are urging a fee on paper bags as well to force the use of reusable bags.

Environmental groups sue Iowa asserting constitutional right to clean water. According to a suit filed in state court, the State of Iowa and several Iowa agencies are depriving their residents of a constitutional right to clean water by failing to adequately regulate farms. The groups claim that runoff from farms has polluted the Raccoon River, interfering with constitutional rights to use the river for recreation and as a source of drinking water. Their suit asks the court to impose nitrogen and phosphorus limits, an injunction against new or expanded hog farms within the Raccoon River watershed, and a declaration that the state is violating constitutional rights. The Raccoon River is subject to a Nutrient Reduction Strategy being implemented by state agencies.

Court strikes down Arctic drilling executive order. The U.S. District Court for the District of Alaska reinstated former President Barack Obama’s 2015 and 2016 executive orders prohibiting offshore oil and gas exploration in the Beaufort and Chukchi Seas, holding that President Donald Trump lacked the authority to reverse those orders. President Trump attempted to revoke those withdrawal orders through his own April 2017 executive order. The court, however, held that the Outer Continental Shelf Lands Act allowed the President to withdraw areas from oil and gas development but does not expressly authorize a President to revoke such withdrawals. According to the court, once an area is withdrawn by the President, only Congress can rescind the decision. It rejected the argument that the President has inherent authority under Article II of the Constitution to revoke the actions of a prior President.

Court rejects foreign policy objection to denial of Clean Water Act certificate. A federal judge rejected claims by a commodities export company that the State of Washington improperly denied a Clean Water Act 401 certificate on political grounds that violated U.S. foreign policy. The planned Millennium Bulk Terminals project, to be situated on the Columbia River, would have exported coal from western mines to ports in Asia but required a water quality certificate under the Clean Water Act to proceed. The Washington Department of Ecology denied the certificate in 2017, citing unavoidable and significant adverse environmental impact. Millennium Bulk Terminals had argued that any impacts to waters could be avoided and that the denial was actually driven by political opposition to the use of coal to produce electricity due to concerns about climate change. The court, however, denied that Washington violated the foreign affairs provision of the U.S. Constitution, finding that the Trump administration’s pronouncements in favor of coal mining and exportation do not clearly conflict with the state’s denial, as Trump administration executive orders and reports on increasing coal production also noted the need to maintain environmental protections. To the extent that Washington exercised its powers under the Clean Water Act in a way that conflicts with United States foreign policy, the court deemed that conflict “incidental or indirect.” The case drew amicus curiae briefs from 14 states, nearly evenly split in their support or opposition to various statutory and constitutional claims raised by Millennium Bulk Terminals. The court has not yet ruled on a number of those claims.