Environmental Law Prof Blog

Ninth Circuit Reverses Dismissal of CERCLA Contribution Action

On August 27, the Ninth Circuit (Tashima, Murguia, Carney (by designation)) issued a decision in Asarco, LLC v. Union Pacific Railroad Company, No. 13-35356.  This case arose out of the ongoing cleanup of contamination resulting from mining in Idaho’s Coeur d’Alene River watershed.  Asarco and Union Pacific were among the parties liable for the cleanup costs.  In 2009, Asarco entered into a settlement with the United States resolving its liability for response costs and natural resource damages associated with the site.   Asarco then filed a contribution action against Union Pacific seeking to recoup some of the costs Asarco paid under the settlement.  Union Pacific argued that Asarco’s complaint was time barred and precluded by a 2008 settlement between Asarco and Union Pacific.  The district court held that Asarco’s complaint was not time barred, but dismissed Asarco’s complaint on the ground that it was barred by the terms of the 2008 settlement.  On appeal, Union Pacific renewed its statute of limitations argument in addition to defending the district court’s holding that Asarco’s complaint was barred by the earlier settlement.  The Ninth Circuit reversed, holding (a) that Asarco’s claim was not time barred because its complaint related back to an earlier complaint, even though Asarco’s amended complaint covered claims associated with geographic areas specifically excluded in its original complaint; (b) that Asarco’s earlier complaint was timely because CERCLA § 113(g)(3) does not override Federal Rule of Civil Procedure 6(a)’s “anniversary method” of counting time; and (c) that Asarco’s earlier settlement with Union Pacific did not unambiguously bar Asarco’s contribution action and therefore raised a fact issue not resolvable on a motion to dismiss.

—Todd Aagaard

D.C. Circuit Holds that Citizens Have Standing to Challenge De-Listing of Historic Site

On August 26, the D.C. Circuit (Garland, Srinivasan, Sentelle) issued a decision in Sierra Club v. Jewell, No. 12-5383.  The plaintiffs in the case are environmental and historical preservation organizations seeking to protect the area of Blair Mountain, West Virginia—site of a landmark armed labor conflict in 1921—from the effects of surface mining.  The Blair Mountain Battlefield was listed on the National Register of Historic Places in 2009, but then quickly delisted in response to apparent objections from landowners.  (For a site to be listed, a majority of property owners in the area must not object.)  The plaintiffs sued to challenge the delisting, but the district court dismissed for lack of standing.  The D.C. Circuit reversed, holding (a) that the plaintiffs had demonstrated enjoyment of the Battlefield for its aesthetic and historical value; (b) that the plaintiffs had shown a substantial probability the Battlefield will be subject to surface mining that would impair the plaintiffs’ enjoyment; and (c) that listing on the Register arguably provides the Battlefield with greater protection from mining impacts than if the Battlefield were not listed.  On the last point, the court reasoned that, although the Department of the Interior argued the Battlefield, even if it were listed, would not receive the protections in West Virginia law cited by the plaintiffs, for purposes of establishing standing the plaintiffs needed only to make a “non-frivolous” argument that listing would protect the Battlefield.

 

—Todd Aagaard

D.C. Circuit Holds that FERC Misapplied Filed Rate Doctrine to Interconnection Agreement

On August 26, the D.C. Circuit (Garland, Srinivasan, Millett) issued a decision in West Deptford Energy v. FERC, No. 12-1340.  The Federal Power Act, through what is known as the filed rate doctrine, requires regulated utilities to charge only rates that are on file with FERC.  In this case, however, there was a question of which of two rates should be treated as on file with the agency.  Petitioner West Deptford Energy submitted a request to interconnect new electric power generation facilities with PJM.  Under PJM’s tariff on file at the time, West Deptford would have had to reimburse other generators for certain upgrades necessitated by the proposed interconnection.  While West Deptford’s request was pending, however, PJM submitted tariff amendments to FERC; under these amendments, West Deptford would not have to pay for the upgrades.  In the process of approving West Deptford’s interconnection request, PJM determined that the prior tariff controlled and that West Deptford had to pay for the upgrades.  FERC sided with PJM.  West Deptford filed a petition for review challenging FERC’s decision, and the D.C. Circuit granted the petition.  Without holding that FERC had to apply the later tariff, the court held that FERC had acted arbitrarily and capriciously by failing to provide a reasoned explanation for its decision to apply the earlier tariff.  Neither PJM’s tariff amendments nor FERC’s correspondence with PJM regarding the amendments specified how the amendments would apply to pending interconnection requests.  FERC precedent seems to apply the tariff in effect when the interconnection agreement is executed or when an interconnection agreement is filed with FERC, not when a generator makes its interconnection request.  The court also held that FERC had erred by failing to address West Deptford’s argument that, if it was responsible for reimbursing other generators to pay for the upgrades, it was due offsets for amounts that those generators already had been collected.

—Todd Aagaard

Troy Rule on Renewable Energy and Land Use

In recent years, renewable energy siting decisions have generated some of the U.S.'s most interesting and complex environmental controversies.  Troy Rule (Arizona State) has just put out a new book on the subject.  If you're interested in the intersection of land use, environmental, and energy law, you might want to take a look.

Tenth Circuit Affirms Order Denying Preliminary Injunction Against Eastern New Mexico Rural Water System Project

On August 25, the Tenth Circuit (Hartz, Ebel, Phillips) issued a decision in Village of Logan v. U.S. Department of Interior, No. 13-2082.  The Eastern New Mexico Rural Water System Project, which will include a pipeline and associated facilities, is being constructed to deliver water from the Ute Reservoir to a group of participating communities.  The Project will allow the participating communities to reduce their reliance on groundwater from the Ogallala aquifer, which is suffering declining water levels and water quality from overuse.  The Village of Logan, New Mexico has a right to some water from the Ute Reservoir, but it will not benefit from the Project.  If Logan wants to receive water from the Reservoir, it will have to construct its own delivery project.  The Bureau of Reclamation issued an Environmental Assessment and Finding of No Significant Impact for the Project, and Logan made no comments or objections.  More than a year later, Logan sued to enjoin the project, alleging violations of NEPA.  The district court denied the motion.  Logan appealed, and the Tenth Circuit affirmed.  In rejecting Logan’s arguments, the Tenth Circuit held (a) that Logan had not shown it would suffer irreparable harm from the Project, because most of its alleged injuries were either already complete or speculative; (b) that the harms of delaying construction of the Project outweigh any injuries to Logan; (c) that the public interest favors allowing the Project to proceed; and (d) that Logan was unlikely to succeed on the merits of its NEPA claims because it waived most of its challenges by failing to raise them during the administrative proceedings.

—Todd Aagaard

Ninth Circuit Holds Diesel Exhaust Emissions Are Not “Disposal” Under RCRA

On August 20, the Ninth Circuit (Fernandez, Smith, Murguia) issued a decision in Center for Community Action and Environmental Justice v. BNSF Railway Company, No. 12-56086.  The plaintiffs were environmental organizations whose members live near railyards owned and operated by the defendant railway companies.  Locomotives, trucks, and other heavy-duty vehicles on or near the railyards emitted diesel exhaust containing particulate matter.  The plaintiffs filed a citizen suit under RCRA seeking to enjoin the particulate matter emissions as disposals of a solid or hazardous waste that presented an imminent and substantial endangerment to health or the environment.  The Ninth Circuit held that the defendant’s diesel exhaust emissions do not constitute a “disposal” of solid waste within the meaning of RCRA and on that ground affirmed the district court judgment in favor of the defendants.  The Ninth Circuit reasoned that “disposal” under RCRA does not encompass emissions of solid waste into the air.  The court further reasoned that, although air emissions from railyards and other indirect sources are not regulated by either RCRA or the Clean Air Act, this “regulatory gap” reflects a conscious decision by Congress not to regulate such sources. The court did not reach the issues of whether diesel particulate matter is “solid waste” under RCRA or whether the defendants’ emissions, if covered by RCRA, would “present an imminent and substantial endangerment to health or the environment.”

—Todd Aagaard

Implications of the Scott River/Public Trust Doctrine/Groundwater Case

Several weeks ago, a Superior Court in Sacramento County, California issued an important public trust doctrine decision.  The case concerned the Scott River, which flows through the coast ranges of northern California.  According to the plaintiffs, groundwater pumping was depleting flows in the river and harming its fish.  The plaintiffs argued that because of these harms, Siskiyou County was obligated to consider the public trust doctrine before issuing well drilling permits.  The county defended the case by arguing, among other things, that the public trust doctrine does not apply to tributary groundwater.

In its recent decision, the court decided that legal question in favor of the plaintiffs.  The case isn’t over; the plaintiffs still need to prove their factual allegations of harm.  But the court’s decision was still a big win for the plaintiffs.  While the court did not find that the groundwater itself is a public trust resource, it concluded that the public trust doctrine does apply to groundwater withdrawals that impact a surface water stream.  Consequently, according to the court, Siskiyou County was obliged to consider the public trust doctrine when it permitted irrigators to drill and operate wells.

In a recent post at Legal Planet, Holly Doremus has described the case in more detail.  This post raises a different question: what impact would the court’s holding, if it stands (as I think it should and will), have on groundwater regulation in California?  One might assume the answer is simple: applying the public trust doctrine to groundwater pumping will lead to increased regulatory control of groundwater use, and to increased environmental protection of surface water systems that depend upon groundwater recharge.  And that is a possibility.  But the reality may be more complex, and below are a few other potential outcomes:

-          The case leads to reduced regulation of groundwater use.  This may sound like an odd result, until one considers this basic fact: while local governments in California clearly have the ability to regulate groundwater use, see Baldwin v. County of Tehama, 36 Cal. Rptr. 2d 886 (1994), they don’t have a legal obligation to do so.  Similarly, California’s State Water Resources Control Board, which arguably has the ability to regulate groundwater use, hasn’t actually exercised that regulatory authority.  This all may change soon, as Rick Frank recently pointed out in another Legal Planet post.  But so long as regulating groundwater is something governmental entities may decline to do, their decision-makers might think, “well, if we regulate, we have to worry about the public trust doctrine, and if we don’t, the public trust doctrine is someone else’s headache.  So let’s not regulate.”

Of course, if a court holds that the public trust doctrine not only obligates government agencies to consider public trust values when they allocate groundwater, but also to create groundwater regulatory programs, that particular perverse incentive would vanish.  But the latter holding would be much bolder than the former, and I would be surprised to see it emerge from the litigation.

-          The case leads to increased regulation of new groundwater users but doesn’t change circumstances for existing users.  This also may sound surprising, because one of the most-heralded aspects of California’s public trust doctrine is its potential, at least in theory, to change existing water rights.  But in a 2012 study, I found that for surface water users, the doctrine has hardly ever been used this way.  I found that it did operate—in conjunction with many other environmental laws—as a constraint on new water users.  But existing water users had generally been left alone.

-          The case changes little, because courts view compliance with other California environmental laws as satisfying the public trust doctrine.  The extent to which public trust doctrine analysis is distinct, as a legal matter, from other California and federal environmental requirements has been an issue in some recent litigation.  As a practical matter, in my 2012 study I found only limited evidence that public trust protections had exceeded those that would have occurred anyway under other environmental laws.

-          The case does lead to important changes in groundwater management.  This could happen because many local government entities in California do regulate groundwater, and because their regulatory approaches are allowing many impacts that slip through the cracks of other California environmental laws.  Perhaps the public trust doctrine will be an important gap-filler.  Where local governments already are motivated to address groundwater impacts, the application of the public trust doctrine also might provide some additional support for the exercises of regulatory authority.  These, of course, are the outcomes the plaintiffs are hoping for.

So which result will happen?  My timid prediction is: all of the above.  California groundwater management is presently such a hodge-podge, with many different entities involved and many others choosing to stay out, that all of these reactions are likely to occur in some places. 

 -Dave Owen