Environmental Law Prof Blog

Seventh Circuit Holds that 1920 Agreement Bars CERCLA Contribution Claim Arising Out of Coke Plant

On September 21, the Seventh Circuit (Bauer, Kanne, Williams) issued a decision in Peoples Gas Light and Coke Co. v. Beazer East, Inc.  This case involves liability under CERCLA for response costs associated with the Crawford Station site, the location of a former coke plant in Chicago.  Both Peoples Gas Light and Coke Co. and Koppers, Beazer East’s predecessor, were involved with the construction and operation of the coke plant in the 1920s.  When decades later Peoples incurred liability and response costs in connection with the Crawford Station site, Peoples sued Beazer East under CERCLA for cost recovery and contribution.  The district court dismissed the cost recovery claim because Peoples had resolved its liability to the United States via an administrative settlement and dismissed the contribution claim because it was time barred and barred by a 1920 agreement between Peoples and Koppers.  Peoples appealed the dismissal of its contribution claim.

The Seventh Circuit affirmed.  The 1920 agreement between People and Koppers absolved Koppers of “liability of any character . . . except as expressly assumed under the terms of this contract.”  According to the court, reading this provision to bar Peoples’ contribution claim was consistent with the overall agreement, which limited Koppers’ role in the coke plant to financing and operating the plant for a limited time until it had been repaid.  In addition, the provision was general enough to cover CERCLA liability.  Because the court concluded that the 1920 agreement barred the contribution claim, it did not reach the question whether some aspects of the claim were time barred.

—Todd Aagaard

Ninth Circuit Upholds Groundwater Pump Test in Nevada against ESA Challenge

On September 17, the Ninth Circuit (Schroeder, Callahan, Pratt (by designation)) issued a decision in Center for Biological Diversity v. Fish and Wildlife Service.  In 2002, the Nevada state engineer ordered water rights holders in the Coyote Spring Valley of Nevada to conduct a study of the effects of groundwater pumping in the area.  The Fish and Wildlife Service (FWS) was concerned about the potential effects of the pump test on the Moapa dace, a small endangered fish in the minnow family.  FWS entered into a memorandum of agreement with the other rights holders to take certain conservation measures to protect the Moapa dace from the potential impacts of the pump test.  Pursuant to its obligations under the Endangered Species Act, FWS issued a Biological Opinion analyzing the pump test’s impacts on the Moapa dace and concluding that the test would not be likely to jeopardize the continued existence of the Moapa dace.  The Coalition for Biological Diversity sued to challenge the adequacy of the Biological Opinion.  The district court granted summary judgment for FWS.

The Ninth Circuit affirmed.  First, the court held that CBD had standing to bring its suit, because setting aside FWS’s Biological Opinion could result in stronger conservation measures.  Second, the conservation measures identified in the Memorandum of Agreement qualify as enforceable under the ESA.  Because the Agreement—not the underlying groundwater pumping—was the federal action triggering the ESA, it was not necessary for the conservation measures to be enforceable against the private parties engaged in the pumping.  Third, the fact that the terms of the Agreement were negotiated does not support a conclusion that the Biological Opinion’s analysis of the Agreement was not supported by the best available science.  Fourth, the record supported the Biological Opinion’s conclusion that the Agreement’s conservation measures will adequately protect the Moapa dace.

—Todd Aagaard

Ninth Circuit Upholds Bureau of Indian Affairs’ Approval of Coquille Forest Timber Project

On June 12, the Ninth Circuit (Fisher, Bea, Murguia) issued a decision in Cascadia Wildlands v. Bureau of Indian Affairs.  Under the Coquille Restoration Act, 25 U.S.C. § 715c, the federal government holds and managed the lands of the Coquille Forest along the southwest Oregon coast in trust for the benefit of the Coquille Indian Tribe.  The Bureau of Indian Affairs (BIA) approved the Alder/Rasler timber project in 2011 and the Kokwel timber project in 2013 on adjacent and overlapping lands within the Coquille Forest.

Three environmental groups—Cascadia Wildlands, Oregon Wild, and Umpqua Watersheds—sued the BIA, alleging that the BIA’s approval of the Kokwel project violated the National Environmental Policy Act (NEPA) because it did not adequately consider the project’s cumulative environmental impact in light of the Alder/Rasler project and violated the Coquille Restoration Act because the project is inconsistent with the U.S. Fish and Wildlife Service's (FWS) Recovery Plan for the northern spotted owl.  The district court granted summary judgment for the BIA.

The Ninth Circuit affirmed.  With respect to the NEPA claim, the court held that the BIA permissibly considered the impacts of the Alder/Rasler project, which had been approved but not completed, as part of the baseline for the Kokwel project.  Moreover, the BIA allowably aggregated the impacts of the Alder/Rasler project along with other previously approved projects in the area.  With respect to the Coquille Restoration Act claim, the court held that the Act, which requires the BIA to manage the Coquille Forest consistently with federal “standards and guidelines,” does not require the BIA to comply with Fish and Wildlife recovery plans for endangered species such as the northern spotted owl.  Rather, the court interpreted “standards and guidelines” to refer to standards and guidelines in applicable federal forest plans, such as the Northwest Forest Plan.  Although the Coos Bay District Resource Management Plan specified consistency with recovery plans as an “objective,” the court declined to hold that the Act’s reference to “standards and guidelines” included the Coos Bay Plan’s “objective.”

—Todd Aagaard

Fifth Circuit Reverses Clean Air Act and MBTA Convictions

On September 4, a Fifth Circuit panel (Davis, Jones, Clement) issued a decision reversing the convictions in a Clean Air Act and Migratory Bird Treaty Act (MBTA) prosecution against CITGO. A March 2002 inspection of a CITGO refinery in Corpus Christi, Texas, found 130,000 barrels of oil floating in uncovered equalization tanks.  Equalization tanks are used to store wastewater temporarily so as to equalize the flow of wastewater to secondary treatment systems.  Under Clean Air Act regulations, if the tanks were oil-water separators, CITGO had to cover them to limit emissions of volatile organic compounds.  Following a trial, CITGO was convicted of two counts of violating the Clean Air Act and three counts of taking migratory birds in violation of the MBTA.

The Fifth Circuit reversed.  With respect to the Clean Air Act counts, the court of appeals held that the district court erred by instructing the jury to find that Clean Air Act regulations for oil-water separators applied if CITGO was using its tanks as oil-water separators.  The court instead interpreted the regulations to define an oil-water separator based on how the equipment is used and on its constituent parts.  Thus, even though CITGO was using the equalization tanks to separate oil from water, the tanks were not necessarily subject to regulation as an oil-water separator.  With respect to the MBTA convictions, the court of appeals—siding with the Eighth and Ninth Circuits and against the Second and Tenth Circuits—held that the MBTA’s prohibition against “taking” migratory birds “is limited to deliberate acts done directly and intentionally to migratory birds.”  The court reasoned that Congress intended to retain a narrow common law definition of “take,” as opposed to more expansive meaning in the Endangered Species Act.

—Todd Aagaard