27 February 2019

Sidley Environmental Trends

Topics discussed this week include:

  • EPA issues PFAS action plan.
  • Supreme Court to hear CWA case on discharges through groundwater to waters of the United States.
  • District court dismisses lawsuit by environmental group and youth alleging that federal government violated their constitutional rights and public trust doctrine through Trump-era climate change policies.

EPA issues PFAS action plan. The United States Environmental Protection Agency (EPA) recently released an action plan for per- and polyfluoroalkyl substances (PFAS). Due to their nonstick properties, PFAS compounds have been used as coatings in cookware, as surface coatings in paper and cardboard, in firefighting foam and in other products. EPA has recently begun to focus more on PFAS compounds due to their possible health effects, as detailed in past Environmental Trends reports (such as here and here). The PFAS action plan presents a number of steps EPA will take in the coming months to address PFAS. On the regulatory side, this includes proposing a regulatory determination as to whether the agency will set a Safe Drinking Water Act maximum contaminant level for two common, older PFAS compounds — perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) — as well as listing PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Among other items, the plan also calls for EPA to develop interim cleanup recommendations to address PFOA and PFOS in groundwater under CERCLA and the Resource Conservation and Recovery Act, finalize draft toxicity assessments that are pending for certain PFAS compounds and develop toxicity assessments for other PFAS compounds, and research various issues, such as the atmospheric fate and transport of PFAS compounds.

Supreme Court to hear CWA case on discharges through groundwater to waters of the United States. The Supreme Court recently partially granted a petition for a writ of certiorari in County of Maui v. Hawaii Wildlife Fund, a case arising out of the Ninth Circuit on the issue of whether the Clean Water Act (CWA) regulates discharges through groundwater that eventually reach waters of the United States. This issue has become a prominent one in CWA jurisprudence recently, with three circuit courts of appeals weighing in on the issue in five decisions in 2018 alone. The circuits are split; the Ninth Circuit and the Fourth Circuit have determined that such discharges are covered by the CWA, while the Sixth Circuit, and the Fifth Circuit and the Seventh Circuit in older decisions, have held that the CWA does not regulate such discharges. Here, there were pending petitions for certiorari in both the Ninth Circuit case and the Fourth Circuit case. The Supreme Court’s partial grant matched the views of the United States provided by the Solicitor General, whom the Court invited to file a brief in both cases. That amicus brief urged the Court to accept only the Maui petition, and only on the groundwater discharge issue, since the facts of the Fourth Circuit case presented a threshold legal question other than the groundwater discharge issue.

District court dismisses lawsuit by environmental group and youth alleging that federal government violated their constitutional rights and public trust doctrine through Trump-era climate change policies. The U.S. District Court for the Eastern District of Pennsylvania dismissed a lawsuit by the Clean Air Council and two youth plaintiffs alleging that the federal government had violated their due process rights under the Fifth Amendment and the federal public trust doctrine through the Trump administration’s reversal of Obama-era climate change policies. The court concluded that none of the plaintiffs had standing, since, among other issues, the complaint failed to demonstrate how the council’s members had standing and the individual plaintiffs’ allegations of harm were based on an attenuated, contingent chain of events. In the alternative, the court determined that the plaintiffs failed to state a claim since there is no due process right to environmental quality, the Ninth Amendment provides no substantive rights for plaintiffs and the public trust doctrine does not invest the federal government with an affirmative duty to protect all land and resources in the nation. In rendering its holding, the court criticized the District of Oregon’s 2016 holding in Juliana v. U.S. that there was a due process right to a stable climate system and that the public trust doctrine authorized climate change-related claims.

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