Should CERCLA Contribution Action Be Available to Potentially Responsible Parties Absent Federal Civil Action?

Article By: Patricia L. Pearlberg; originally published in JNREL Vol. 19, No. 1

By: Natasha C. Farmer, Staff Member

Congress enacted the Comprehensive Environmental Response, Communication, and Liability Act ("CERCLA") on December 11, 1980. This Act was subsequently revised and reauthorized with the enactment of the Superfund Amendments and Reauthorization Act ("SARA"). These two enactments are collectively referred to as CERCLA. CERCLA was designed to prevent further contamination and the release of toxic substances by requiring clean-up of existing hazardous sites, ensuring that the costs of cleaning up these sites are borne by the "responsible" parties, and creating liability provisions to deter future environmental releases by imposing high costs on careless waste management and disposal practices.

Under CERCLA, Potentially Responsible Parties ("PRPs") are defined broadly and can include past operators and owners of facilities who can be sued. In determining liability, courts have determined that liability under CERCLA is strict, joint, several, and retroactive. In Avaiall Services, Inc. v. Cooper Indus., Inc., 312 F.3d 677 (5th Cir. 2002), the defendant and its predecessor companies owned and operated three facilities and were engaged in the business of aircraft engine maintenance that "required the use of petroleum and other hazardous substances." The plaintiff purchased the facilities and the aircraft engine maintenance business from the defendant. As a result of the hazardous substances seeping into the ground and groundwater, the plaintiff initiated an extensive cleanup, costing it millions of dollars and lasting for more than a decade. Soon after, the plaintiff filed a § 113(f)(1) contribution suit under SARA alleging the defendant as a PRP.

Section 113(f)(1) of SARA was enacted by Congress to encourage cost sharing among PRPs. This section allows PRPs to seek contribution from other PRPs if it assumed a disproportionate share of the cleanup costs, as the plaintiff claimed here. However, there is much dispute on what the statutory language of this section means. There are disputes to whether Section 113(f) is only limited to federal contribution actions "during or following" a federal action. Patricia L. Pearlberg's article, "Should A CERCLA Contribution Action Be Available To Potentially Responsible Parties Absent Federal Civil Action?" discusses CERCLA's statutory language and structure, legislative history, and public purpose of the Act.

Can You See Me Now? The Struggle Between Cellular Towers and NIMBY

Comment By: Camille Rorer; originally appearing in JNREL Vol. 19, No.2

Abstract By: Bryan Henley, Staff Member

Cellular telephones, like most modern conveniences, are generally regarded as being beneficial to society. Much like sewage treatment and the production of sausages, most people want them to exist without being exposed to the unseemly processes and facilities that provide them. However, the inner workings that enable cellular telephones cannot be sequestered or buried beneath the pavement because those systems take the form of radio transmission towers. Instead, cell towers must typically be in an open area (and thus visible) and situated in an overlapping grid that covers all places where a person would want to make a telephone call. That's everywhere!

This puts the populace surrounding a potential site in a position of wanting a tower to exist, just not wanting it there. This is the NIMBY, or "Not-In-My-Back-Yard" obstacle. NIMBYs are groups of citizens and organizations that, at least in the context of cellular telephones, oppose the currently proposed site, but would support the tower's existence in another location. While immediately reasonable in any instant debate, this problem only becomes apparent when it is considered that every site would have its own separate NIMBY group in opposition. Left unrestrained, these isolated NIMBYs could comprehensively halt cellular service.

In response to this problem, the federal government amended the Federal Telecommunications Act in 1996. This act declares the ground rules for resolving these conflicting interests. These rules are clearly designed to further the placement of towers, as some reasons for denying a cell tower site are proscribed completely and all others must meet a standard of substantial evidence. This evidentiary standard is the fighting issue in these decisions which are very valuable to both the cellular service providers and the landowners who own the proposed site. In "Can You See Me Now? The Struggle Between Cellular Towers and NIMBY," Camille Rorer explores many such disputes and identifies five of the most common arguments put forth by NIMBYs. Each argument in analyzed from its legal and, when necessary, scientific positions. As our reliance on such communication enhancing devices increases as a society, so will these types of dispute. Through her analysis, Ms. Rorer offers a well considered understanding of what is likely to be a common dilemma.

Must NEPA Always Be Followed to the Letter When Obtaining an Environmental Assessment to Acquire a Conservation Easement?...

...After All, Aren’t We Maintaining the Environmental Status Quo?”

Note By: Ben W. Alderton; Originally published in JNREL Vol. 19, No. 2

Abstract By: Brandon Wells, Staff Member

Land that the Department of Defense (“DOD”) has been entrusted with for the training of military personnel has increasingly become a refuge for many threatened and endangered animals. Questions about what the DOD should do in this scenario have led to the solution of allowing the DOD to purchase lands surrounding training grounds and designating them as conservation lands. But, another question has arisen from these purchases of conservation lands. When acquiring conservation lands, should the DOD (or any other military department) be required to comply with the National Environmental Policy Act (“NEPA”) and prepare an Environmental Assessment (“EA”)?

NEPA is only triggered by a “major federal action”, and once triggered, requires the federal agency to complete an EA. An EA can result in one of two outcomes, either a finding of no significant impact (“FONSI”) or a duty to prepare an Environmental Impact Statement (“EIS”). Since acquiring conservation land would seem to lead to a FONSI, it seems wasteful to require a government agency to expend time and resources in preparing an EA. However, recent case law has not lead to a definitive answer.

NEPA is a procedural statute that demands that the decision to go forward with a federal project which significantly affects the environment to be an environmentally conscious one.” Sabine River Auth. V. U.S. Dept. of Interior, 951 F.2d 669, 676 (5th Cir. 1992). The federal agencies have the responsibility for issuing the EA and the FONSI or EIS. Before the DOD or other federal department can issue a FONSI, they have to also issue an EA. An EA is not to be taken lightly, and can result in high expenses in both cost and time to federal departments.
The court in Sabine River came close to resolving this issue. The holding in Sabine River seemed to indicate that acquiring a conversation easement was merely maintaining the status quo, and therefore NEPA was not triggered. However, there was no specific language in the case stating NEPA was not triggered. Also, in Sabine River the federal agency had already prepared an EA, failing to answer the question of whether the EA was actually required.

There has been a circuit split on the issue of whether NEPA is triggered when the Department of the Interior is designating a critical habitat under the Endangered Species Act (“ESA”). Pacific Legal dealt with the specific issue of whether the federal agency must prepare an EIS when listing endangered species. The court in Pacific Legal noted that “the legislative history [suggests that NEPA] was not intended to be applied to agencies whose function it was to protect the environment.” Pacific Legal Found. v. Andrus, 657 F.2d 829 (6th Cir. 1981).

The Ninth Circuit case of Douglas County v. Babbitt addressed the issue of whether a federal agency triggered NEPA when it was acting within the statutory scope of the ESA because an EA had been prepared prior. Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995). The court in Douglas County determined that NEPA did not apply to the designation of a critical habitat. However, in Catron County, the Tenth Circuit concluded that NEPA was triggered when designating a critical habitat under the ESA. Catron County Bd. of Comm’rs. v. Babbitt, 75 F.3d 1429 (10th Cir. 1996).

Even though the cases resulted in different outcomes, one possible explanation may be that in Douglas County the designation of habitats only affected federal lands. In Catron County some of the designated land potentially affected land owned by the county. Questions of standing such as these lead to the question of whether a challenge can be made to not preparing an EA in response to acquiring conservation easements.

A plaintiff who asserts purely economic injuries does not have standing to challenge any agency action under NEPA. Douglas County, 48 F.3d at 1499. Therefore, the plaintiff challenging the agency action must have some concrete and cognizable interest in the suit. Courts seem to be lenient in allowing plaintiffs to proceed, but one major group, developers, will undoubtedly be excluded by this standing requirement.

Thus, after much discussion, the question still remains as to whether the DOD must prepare an EA when acquiring these conservation easements. Sabine River seems to indicate that NEPA may not be triggered, but in that case an EA had already been filed prior to acceptance of the easement. The circuit split between Douglas County and Catron County doesn’t do much except to confuse the issue. Until the issue is taken up by Congress or the Supreme Court, the mystery will remain. In the meantime, prudence will likely require the DOD to prepare an EA to protect itself from litigation when acquiring conservation lands.

Valid Concerns Over Environmental Tobacco Smoke or Rights Going Up in Smoke?: An Analysis of Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health

Comment by Emily Heady; originally appeared in JNREL Vol. 19, No. 2

Abstract by Mattea Carver Van Zee, Staff Member

Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health, 591 S.E.2d 744, 752 (W. Va. 2003), investigates a state's adjudication on the legitimacy of Clean Indoor Air Regulations (CIAR). While CIARs have been upheld on federal constitutional challenges, the question remains as to whether local health boards hold the authority to enact such regulations.

Foundation demonstrates the potential state application of legitimacy determinations by looking first to the state's legislative mandates. The Supreme Court of Appeals determined whether the West Virginia Legislature granted local boards of health the authority to prohibit smoking in public places. The legislation provided that environmental health protection included methods of promoting and maintaining clean and safe air, water, food, and facilities. Local boards of health may uphold these public interests where necessary and proper for the protection of the general health of the area and for the prevention of disease. The court determined that the CIAR was consistent with the Legislature's mandate maintaining that the Legislature had delegated broad power to the local boards. When regulations are promulgated by a legally enabled board of health, the regulations are to be construed as valid if the regulation is reasonably calculated to achieve the Legislature's intended result.

Constitutional challenges facing locally-promulgated CIARs include the taking of private property without just compensation and as an inappropriate exercise of eminent domain. The court concluded that a regulation does not represent an unconstitutional taking where the regulation is reasonably found to promote the health, safety, morals, or the general welfare of the public. Additionally, the regulation must not destroy all economic use of the property. Second, challengers contended that CIARs represent an unconstitutional deprivation of due process. The court distinguished that the bans were not deprivations as the regulations apply to truly public areas. Truly private areas, such as one's home, would not allow such regulations.

Third, challengers argued the regulations usurped the power of the state Legislature by creating criminal laws and penalties. Challengers failed to recognize the penal possibilities set forth by the Legislature itself. Instead of usurpation, the local boards of health were merely reciting the penalties in their own regulations. Fourth, it was argued that the local CIARs violated the equal protection clause of the state constitution. With the local CIAR, distinctions were made between differing types of facilities, such as bars, gaming facilities, and restaurants. While bars are exempted from the smoking bans, restaurants were not. However, the court reasoned that because the regulations did not differentiate between facilities of the same type, equal protection was not denied.

Aside from West Virginia, other localities have varied in upholding the constitutionality of such regulations. Like West Virginia, the states seem to focus on health issues, preemption, and property rights. In conclusion, it is unclear what other factors state courts will utilize to analyze the constitutionality of health-related regulations.

Sustainable Development and the Regulation of the Coal Bed Methane Industry in the United States

Article by: Allan Ingelson; Originally published in JNREL Vol. 20, No. 1

Abstract by: Derek Leslie, Staff Member

This article critiques the regulatory regime in place to facilitate Coal Bed Methane (CBM) development and production in the United States. Applying the principles underlying the concept of sustainable development, Professor Ingelson suggests that the regulations affecting CBM development are to a large degree a mixed bag and are far from being considered an example of regulation that would successfully promote sustainable development.

The article begins by considering both the theoretical underpinnings of sustainable development as well as the CBM regulatory process as it exists under the current framework. The President's Council on Sustainable Development (PCSD), established in 1993 by President Clinton, proposed ten draft sustainability goals that incorporated five widely recognized sustainability principles that provide the necessary metric for reviewing the CBM regulatory regime. These five baseline principles suggest that Sustainable Development 1) respects ecological integrity, 2) is based on an efficient use of natural, manufactured, and social capital, 3) promotes equity, 4) relies on participatory approaches, and 5) requires environmental stewardship by all levels of decision-makers.

The CBM regulatory system advances these principles to varying degrees. The system is only partially successful at respecting ecological integrity. Regulation advancing this principle includes the scheme's incorporation of the Endangered Species Act, an ecosystem management planning approach for federal lands, and environmental impact assessments under the National Environmental Protection Act (NEPA). However, due to constitutional constraints, much of the process is truncated with respect to development on private lands, where significant development is likely to occur. The principle of the efficient use of resources reveals a system that is to some points sustainable. However, it does not seem to provide for an efficient use of capital as neither full-cost accounting, a polluter pays principle, nor the precautionary approach have been fully incorporated. As to the promotion of equity, the regulatory scheme also fails. This sustainability principle suggests costs and benefits should be distributed equally among the current and future generations. However, the legal system now in place does not require CBM developers to compensate owners for "reasonable use" damage caused by CBM operations. Landowners may not receive compensation for loss of crops, soil damage, decreased land values, et cetera. Inter-generational equity is also challenged by the current regime, because of the nature of the development and current consumption of CBM, depriving future generations of this finite resource. The fourth sustainability principle of public participation is largely addressed by the framework in place. The environmental impact assessment process, as well as citizen lawsuit provisions, provides stakeholders with a reasonable opportunity to participate in the decision-making process. The fifth principle, stewardship, suggests the government must promote and advocate the idea of sustainability both to the public and industry. While the EPA's attempt to incorporate some sustainability concepts in the CBM regulatory framework represents to some degree this principle, the Bureau of Land Management, as well as the various state agencies, have shown no effort to provide leadership in pursuing sustainable CBM development.

Looking at these concepts in detail, Professor Ingelson concludes that the CBM regulatory system does not effectively promote CBM sustainability. While aspects of the system certainly aim towards the goal of CBM sustainability, other features of the regime clearly prioritize other policy goals such as economic growth and use of CBM as an energy resource.

Yellowstone, Snowmobiles, and Confusion: What Has the NPS Done For You Lately? The Ongoing Battle Over Fund for Animals v. Norton

Comment by Kimberly Ratliff, Former Staff Member; originally appeared in JNREL Vol. 19 No. 2

Abstract by: Matt Cocanougher, Staff Member

A war has been waged in the western United States between the snowmobile industry and conservation groups regarding the use of snowmobiles in national parks, specifically Yellowstone National Park. Interestingly, by handing down opposing decisions, two federal courts have allowed battles to be won by both sides. This has created a great amount of confusion for the conservation groups as well as the snowmobile industry. Additionally, the party charged with putting an end to the confusion, the National Parks Service ("NPS"), played an important role in causing the uncertainty in the first place.

Fund for Animals v. Norton, 294 F. Supp. 2d 92 (D.D.C. 2003), was a suit brought by numerous environmental organizations in the Washington D.C. circuit court to challenge the NPS's decision to allow snowmobile use at Yellowstone National Park. The events leading up to this case began in 1997 after some environmental problems arose because of the use of snowmobiles. The NPS responded to a suit by environmental groups which addressed these problems by completing an Environmental Impact Statement in 1998 and issuing a Finding of No Significant Impact, while vowing to continue studying the environmental impacts. Later, in 2001, the NPS decided on the Snowcoach Rule, which would phase out snowmobiles by the 2003-2004 seasons and replace them with mass transit snowcoaches. However, two years after the Snowcoach Rule was decided upon, the NPS completely changed its mind and decided to allow 950 snowmobiles to access Yellowstone daily, mandating that the snowmobiles conform with the best available technology standards.

After the NPS decision reversing its earlier Snowcoach Rule, Fund for Animals and other environmental organizations sued in the D.C. court based on the argument that the 2003 change of the rule was arbitrary and capricious, which violated the Administrative Procedure Act ("APA"). The D.C. court agreed that the 2003 rule was arbitrary and capricious and issued an order reinstating the 2001 decision and allowing the NPS to promulgate new rules to address the matter.

While it seems as though this should be the end of the story, it is not. After the D.C. decision, the International Snowmobile Manufacturers Association and the state of Wyoming brought suit to reopen their pending case challenging the 2001 Snowcoach Rule in Int'l Snowmobile Mfr. Ass'n v. Norton, 304 F. Supp. 2d 1278 (D. Wyo. 2004). Because the Wyoming District Court found that the NPS had not spent an adequate amount of time reviewing the environmental consequences of the Snowcoach Rule, it found that the Rule was invalid. This decision, therefore, ordered the NPS to restore the status quo of no restrictions on snowmobiles.

As a result of both of these cases, the environmental groups involved in the first D.C. case went back to the D.C. court to ask to resolve these inconsistent decisions. The D.C. court ruled that the NPS now has to create a new "rule making process in a manner consistent with, and addressing the concerns" of the Wyoming District Court. Funds for Animals v. Norton, 323 F. Supp. 2d 7, 10 (D.D.C. 2004). Therefore, the NPS has a very difficult task ahead of it of addressing the issues of both the snowmobile industry and environmental groups while keeping in mind the decisions issued in these two cases.

Takings Jurisprudence as Three-Tiered Review

Article by: Mark W. Cordes, originally appeared in JNREL Vol. 20, No.1

Abstract by: John Hendricks, Staff Member

Takings jurisprudence has been for all practical purposes a complex and often confusing legal area. However, in analyzing takings jurisprudence, it is possible to draw comparisons to the traditional Supreme Court jurisprudence regarding equal protection. While this comparison is not exact, it does provide an overarching classification system for takings. Like equal protection analysis, takings jurisprudence can be roughly divided into three-tiers of scrutiny based on what type of taking has occurred.

The type of takings subject to the most stringent level of review is takings which involve the permanent physical invasion of property. This category of takings is analogous to the strict scrutiny applied to equal protection claims. The Court has adopted a near per se rule that physical invasions constitute a taking. Just as the Court has protected against suspect classifications, so has it been protective of physical invasions of property by the government, such government action is almost always unconstitutional.

The second level of review in takings jurisprudence involves situations regarding development extractions. Under the standards announced in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), a court should look for a "rough proportionality" between the extraction and the use of the land. This approach can be compared to intermediate scrutiny, in that it is not invalid per se and the court will look at the reasons for the government action.

Finally, the third type of takings is takings based on a land use regulation's economic impact. These types of takings can best be compared to the deferential review or minimum rationality review applied in equal protection cases. While the comparison between takings based on a land use regulation's economic impact and deferential review may seem to conflict with the Court's analysis in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1977), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), in an abstract sense, both types of review are similar. While takings based on a land use regulation's economic impact are subject to a factual inquiry, the government is still granted a level of deference that is similar to deferential review in equal protection cases. Ultimately, the comparisons between takings jurisprudence and equal protections cases provide an analytical framework for understanding the sometimes murky world of takings jurisprudence.

Crossroads: The Collision of Bankruptcy's Automatic Stay and Environmental Law’s Injunctive Relief

By: Adam M. Back , Former Staff Member; Note Published in JNREL Vol. 20, No.1

Abstract by: Addison Schreck, Staff Member

The goals and policies of environmental law and bankruptcy law are not concepts generally thought to be of much consequence to one another. However, when a polluting company approaches insolvency, the interaction between the two becomes significantly more apparent. The Bankruptcy Code's automatic stay, as well as its creditor priority provisions, 11 U.S.C. § 362 and 11 U.S.C. § 726 respectively, bring the conflict between the two fields into the limelight.

The automatic stay provisions act to suspend any government enforcement proceedings including environmental ones. This accompanied by the government's status as a low priority creditor under § 726 make the situation a unique one. In general, the policy behind the government's low priority is sound. It is the government's inherent duty to foster economic well-being. Therefore, it makes sense that they would allow their own coffers to go wanting so that private creditors can be paid. However, the public policy argument which is generally applicable is not as appropriate in this case.

Environmental incidents are by their nature worsened by the passage of time. Therefore, the impediments created by the provisions of the Bankruptcy Code oftentimes force governmental agencies to pursue injunctive actions to remedy the situation. Such actions can force the insolvent party even further into debt and also result in sub-sufficient cleanup efforts due to the entity's already depleted resources and lack of expertise. While an environmental exception has been proposed to the automatic stay provisions of the Bankruptcy Act, perhaps the most promising solution proposed is heightening the government's priority during the distribution of a bankrupt entity's assets.

Given the current volatile state of the economy, bankruptcy law promises to be an area that will see developments over the coming years. Whether and to what extent these changes will give deference to environmental concerns is as yet unknown, but it is clear that the current state of affairs does not appropriately address the competing interests at hand.

Drinkable Water is a Pollutant?: Northern Plains Resource Council v. Fidelity Exploration

By: Laura L. Mays, Former Staff Member; This Comment was originally published in JNREL Vol. 20 No. 1.

Abstract by: Andrew Leung, Staff Member

In deciding Northern Plains Resource Council v. Fidelity Exploration, 325 F.3d 1155 (9th Cir. 2003), the Ninth Circuit held that naturally occurring groundwater in an unaltered state is a pollutant under the Clean Water Act (CWA) and should be treated accordingly. "Drinkable Water is a Pollutant?: Northern Plains Resource Council v. Fidelity Exploration" examines the court's analysis and explains the probably harmful effects that this holding will have on the coal industry in the Commonwealth of Kentucky and the country at large.

The "pollutant" in question is groundwater removed from natural aquifers through the harvesting of Coal-Bed Methane (CBM). CBM is a naturally occurring deposit of methane that exists in situations where coal is saturated with groundwater, thus trapping methane inside the coal. When CBM deposits are tapped, the miners must also remove the groundwater deposits in order to achieve the ideal pressurization at the mining site.

In Fidelity Exploration, Fidelity Exploration and Development Company extracted CBM from the Powder River Basin in Montana for commercial sale. The groundwater that was brought to the surface was transported to and deposited in the nearby Tongue River. It should be noted that the dissolved solids level in the groundwater was nearly triple that of the river. When this fact was publicized, The Northern Plain Resource Council (NPRC) filed citizen suit in the District Court for the District of Montana. The district court granted summary judgment for Fidelity, but NPRC timely appealed to the Ninth Circuit.

The Clean Water Act proscribes that transport and discharge of a pollutant from a "point source" into "navigable waters" is unlawful. In the case at hand, the "point source" is the underground aquifer from which the CBM was harvested, and the "navigable wate[r]" is the Tongue River. Although defendant Fidelity noted that the water was disposed of in its natural state, the Ninth Circuit found that CBM water was "industrial water" because it was produced as a byproduct of an industrial activity. Ironically, the court conceded that the same water was generally potable, and could be used for agricultural means.

This holding effectively dissuades coal companies from exploiting the CBM deposits that often accompany the coal deposits that they already mine. By imposing this obstacle, coal companies are not likely to change their practice of allowing CBM to escape into the atmosphere, where it contributes to global warming. Fidelity Exploration serves as one of those rare instances where a strict protectionist approach to the environment via literal interpretation of statutes may actually serve to cause greater harm than good.