"JNREL Vol. 21 No.1"

“Watch Your Speed... The EPA is Ticketing in Brazoria County v. Texas Commission on Environmental Quality”

Appearing in JNREL Vol. 21. No.1, the following comment was written by former staff member Haley Prevatt. Staff member Andrew Leung wrote the following abstract.

In deciding Brazoria County v. Texas Commission on Environmental Quality, 128 S.W.3d 728 (Tex. App. 2004), the Texas Appellate Court upheld legislation implementing environmental speed limits and other environmental regulations propagated by the Texas Transportation Commission as not violative of the Texas Clean Air Act, the Texas Transportation Code, and the Texas Administrative Procedure Act. "Watch Your Speed... The EPA is Ticketing in Brazoria County v. Texas Commission on Environmental Quality" examines the court's analysis and explains possible nationwide consequences of this decision.

The Federal Clean Air Act allows the Environmental Protection Agency ("EPA") to set national standards for cleanliness of ambient air, more commonly known as National Ambient Air Quality Standards ("NAAQS"). The NAAQS set permissible levels of pollutants in ambient air but do not contain a mandated method for obtaining that level. Because of the wide array of technological means available to meet NAAQS standards, each individual state has complete discretion to adopt a combination of control devices in order to meet national standards for ambient air.

In Brazoria County, the EPA found levels of pollutants elevated beyond the permissible NAASQ amounts in eight Texas counties in the Houston-Galveston area. The EPA subsequently ordered Texas to create a feasible plan to reduce pollutants to acceptable levels. In response, the Texas Commission on Environmental Quality ("TCEQ") implemented regulations which had three primary effects: (1) reducing of speed limits on state highways to 55 mph; (2) setting forth a vehicle inspection and maintenance program; and (3) prohibiting use of commercial lawn-maintenance equipment at times other than afternoon hours.

Brazoria County, one of the eight counties affected by the TCEQ regulations, brought suit against the TCEQ alleging that it exceeded its authority in promulgating the aforementioned regulations. The Court found that the implementation of the environmental speed limits ("ESLs") was an authorized act because the legislature later acted to ratify the ESLs statutorily. With respect to the vehicle inspection and maintenance and lawn-maintenance regulation, the Court held that they were beyond the scope of the Texas legislation because the regulations were implemented to meet federal NAAQS limitations.

Because the Court's decision in Brazoria County is legally sound and based primarily on precedent, it is unremarkable in that manner. One facet of the case left unaddressed by the court is the possible policy implications of the case. Here, residents of Brazoria County and eight neighboring counties were merely inconvenienced by the environmental regulations promulgated by the TCEQ. The Court's decision leaves open the possibility of more invasive regulation in Texas and the other states of the Union, perhaps even to the extent that the takings clause of the United States Constitution might be implicated.

“Double Criminal Liability Under RCRA: An Analysis of United States v. Wasserson.”

Appearing in JNREL Vol. 21 No.1 this comment was written by former staff member Stephanie Vincent. The following abstract was written by current staff member Warren B. Wells.

When Congress passed the Resource Conservation and Recovery Act ("RCRA"), its main goal was to put in place legislation that could control hazardous wastes from creation to disposal, and to remove many of the dangers inherent in unregulated hazardous wastes. 42 U.S.C.A. § 6901 (2006). Section 6928(d) is the sanction provision of the RCRA, and it separates violations into transport and disposal violations.

In a recent decision of the Third Circuit, United States v. Wasserson, it was held that a generator of hazardous waste could be held liable under both the provision for disposal as well as the provision of transport, even if he did not dispose of it himself. United States v. Wasserson, 418 F.3d 225 (3rd Cir. 2005). This was on the theory that the generator "aided and abetted" the disposal.

Unlike the Third Circuit, the district court in Wasserson and the Ninth Circuit in Fiorillo held that a generator of hazardous waste could not be held liable for "aiding and abetting" the disposal. United States v. Fiorillo, 186 F.3d 1196 (9th Cir. 1999). The Wasserson district court and Fiorillo focused on the plain language of the sanction provision and found that there was a distinction between creating and shipping the waste and receiving and disposing of the waste. The district court was also uncomfortable with the possibility of a double jeopardy conviction, noting that "If a generator who did not actually dispose of the materials himself were able to be convicted under both subsection(s) . . . then he would be convicted twice for the same conduct." Wasserson, 2004 WL 433824 at *4.

Disregarding the district court's interpretation, the Third Circuit agreed with the government's contention that the sanction provisions of 6928(d) triggered "aiding and abetting" liability. The Third Circuit opened up the ability for the generator to be convicted of both the transport and the disposal of the waste, as long as he "aided and abetted" the disposal, no matter how little his involvement was. In doing so, the Third Circuit ignored the fact that only one act had taken place in the Wasserson case. Wasserson had the ability to dispose of the waste himself, but he did not, and hired a separate company to do that for him. Under the facts, there was no way for Wasserson to know that the disposal of the chemicals was being performed illegally.

In drafting the RCRA, Congress clearly had the ability to include a causation element both with respect to the creation and transport sanction and the disposal sanction. While it does include a causation element with respect to the former, it does not with the latter. If it had intended for hazardous waste generators to be convicted twice simply because they caused the hazardous waste to be created or transported, then Congress would have included the causation element in the disposal sanction as well. Due to the fact that Congress clearly chose not to punish twice for a single act, and the unfair convictions that would result from an "aiding and abetting" reading of the statute, when faced with this issue, future courts should follow decisions such as Fiorillo and the Wasserson district court and not allow for multiple convictions under the RCRA.