APWU v. Potter as Illustrative of the Jurisdictional Challenges to Bringing a Citizen Suit Under CERCLA

Comment By Ryan Pyles; JNREL Vol. 19, No. 1

Abstract Written By: Jennifer Parker, Staff Member

Imagine yourself working as an employee of the United States Postal Service ("USPS") in the fall of 2001. The United States has just been the victim of a tragic terrorist attack. Anthrax attacks make for breaking news all too frequently. Suddenly, the news is focused on the local processing and distribution center where you work. Your facility has been identified as having processed two parcels with traces of anthrax. You know that postal employees at other facilities have recently died from similar exposure.

Employees at Morgan Processing and Distribution Center ("Morgan") in New York City faced this exact situation, which presented the source of conflict in APWU v. Potter, 343 F.3d 619 (2d Cir. 2003). These employees, through their unions, sought to have their center closed until the anthrax contamination was completely cleaned. This seems like a natural response, so what is the problem? The USPS already took matters into its own hands, instituting a CERCLA removal action for elimination of the contamination at Morgan. But the Morgan employees wanted more, namely further inspection and testing of their workplace.

Employees like those at Morgan are unable to even bring such a challenge once a CERCLA removal action has been instituted. Section 113(h) of CERCLA prohibits the review of any challenges to removal actions already underway. Such is the case in APWU v. Potter, thus leading the Second Circuit to affirm the District Court's disallowance of the employees' action.

When imagining oneself in the place of one of the Morgan postal workers, the result seems unfair. However, the purpose behind this jurisdictional challenge restriction is understandable. CERCLA removal actions typically require efficiency and expediency. Pausing those actions to deal with challenges in court could potentially result in more harm being done by putting clean-up on hold.

APWU v. Potter illustrates the tension between the concerns of employees on an individual level and concerns of governmental agencies on a broader level. It is difficult to understand the rigid jurisdictional bar to individual challenges to CERCLA removal actions, particularly when you imagine yourself in the naturally panicked state of a postal employee with anthrax exposure. However, adherence to this statutorily prescribed restriction is necessary in order to be sure the problem at hand is properly dealt with to avoid further panic and inefficiency.

2010 Annual Banquet and Awards!!!

Tonight both KJEANRL and the Kentucky Law Journal celebrated the year with a banquet and awards ceremony. Kentucky Supreme Court Chief Justice John Minton was the keynote speaker and discussed judicial independence. The speech also focused on discussing the history of Kentucky's unified court system and how this ties into the concept of judicial independence.

The following staff members won awards for outstanding service to KJEANRL this year:
Best Comment: Matt Cocanougher

Best Note: Meghan Tyson

Outstanding Third Year Staff Member: Jen Parker

Outstanding Second Year Staff Member: Stephanie Wurdock

Staff Assistant April Brooks was honored for her assistance in helping both law journals get published. Mrs. Brooks started working for the University in November and stepped right into her role with a positive attitude and great initiative that both journals greatly appreciate.

Faculty Advisor Mark Kightlinger was honored for providing guidance in shifting the focus of our law journal. Additionally, he provides numerous topic ideas for blog posts which are greatly appreciated.

Though they were not honored at the banquet I would like to thank Assistant Online Editors Zach Becker and Kim Coghill who have assisted me in ensuring that the blog maintains a consistent production schedule. They both make up assignments and hand them out to staff members on a weekly basis. The pieces are then edited by both of them and given to me for review. Without their hard work this blog would not be possible.

Also Administrative Editor Anna Girard deserves accolades. She assigns all blog posts to staff members and helps ensure that all assignments are received in a timely fashion.

Congrats everybody on a great year!

Two Steps Forward and One Step Back: Has the Supreme Court’s Decision in Tahoe-Sierra Preservation Council Unnecessarily Muddled the Waters of Takings Law Analysis or Restored Penn Central to a Place of Prominence?

Note By: C. Phillip Wheeler, Jr.; JNREL Vol. 19 No. 1

Abstract By: Erin M. Boggs, Staff Member

Few issues rile the general public more quickly than the idea that the government can, whether through regulation or a physical taking, deprive a property owner of the ability to do what he wishes with a parcel of property. The Supreme Court has approached this problem in a variety of ways, and integrating these multiple approaches into a coherent view of regulatory takings law has proven difficult. C. Phillip Wheeler, however, closely examines the Court's decisions in this area to offer a somewhat historical perspective and a more firm grasp on the state of the law. He contends that Tahoe-Sierra Pres? Council v. Tahoe Regional Planning Agency, 535 U.S. 305 (2002), offers a firm reaffirmation of some precedent and severely limits others, hopefully clarifying the law in this area.

Tahoe-Sierra involved the interaction of property owners surrounding the highly-visited Lake Tahoe and the Tahoe Regional Planning Agency. In response to concerns about runoff into the lake, TRPA placed a moratorium on new building in the area from August 24, 1981 to August 26, 1983. Tahoe Sierra, 535 U.S. at 306. A second, more restrictive moratorium went into effect August 27, 1983 and lasted until April 25, 1984. Id. The majority of the court found that the moratorium did temporarily strip property owners of the development rights of the subject of the regulation. Id. Nevertheless, despite this finding, the Supreme Court ultimately held that the owners had not suffered a taking, relying particularly on the temporary nature of the regulation. Id. at 332.

Wheeler contends that the Court in reaching this holding clarified the test required by the law when it relied on its holdings in Penn Central and its progeny and severely limited the Lucas line of cases. Penn Central Transportation Company v. New York City, 434 U.S. 104 (1978). In order to reach this conclusion, he traces the development of the law through the modified twelve-factor test of Penn Central and the exceptions carved out in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Wheeler's careful examination of the opinions in the regulatory takings cases, including concurring and dissenting opinions shows both the confusion of the law and the necessity of its clarification in Tahoe-Sierra. By showing the Court's historical arc and close examination of the principles that Tahoe-Sierra reaffirms, Wheeler offers a guide for understanding the narrow reach of the Lucas test and the primacy of the Penn Central test in regulatory takings law. Although Penn Central represents a flexible factor test that can have variable results, this coherent presentation of the law can assist scholars and practitioners alike in evaluating their actions by at least showing the Court's apparent choice of the Penn Central test for all regulatory takings cases.

Taxing Coal in India to Fund Renewable Energy

By: Matt

Cocanougher

, Staff Member

When I drive to Kroger for my weekly grocery trip hoping that I remember to get all the necessities, the last thing on my mind is the pollution caused by the exhaust of my car. This is not because I somehow enjoy polluting or harbor resentment toward the natural environment. Instead, it is a negative externality, which is defined as "a consequence or side effect of one's economic activity, causing another to. . . suffer without compensation." Black's Law Dictionary 272 (3rd pocket ed. 2006). The idea is that because I do not have to pay for the pollution I am causing, I will drive to Kroger as many times as is necessary because there are no negative economic consequences for my trip. If the legislature decided that they wanted to make me pay for my pollution, then the solution would be to impose some cost on my Kroger trip, which would force me to decide whether it was worth the cost to make the trip each time I went.

The above rationale used to curb my Kroger trips is being used on a much wider scale in India to encourage renewable energy projects at the cost of the coal industry. India's Finance Minister, PranabMukherjee, announced in his annual budget speech to parliament that "[a] clean energy tax of 50 rupees ($1) a metric ton will be imposed on domestic and imported coal," which will be used to start a national fund to support renewable energy projects. Natalie Obiko Pearson and Gaurav Singh, India to Start Clean Energy Fund by Taxing Coal Use, Bloomberg, Feb. 26, 2010, available at http://www.bloomberg.com/apps/news?pid=20601091&sid=awGQrKRFV_PQ. Based on information from Emergent Ventures, a climate change consulting company, this new tax could raise around 25 billion rupees. Id. But this increase in revenue will not come without its costs, and those costs are, in fact, a major reason underlying the new levy. As AshutoshPandey, an employee of Emergent Ventures, states, the new tax will "help encourage the development of cleaner energies and impose some kind of cost on users of coal." Id.

This new initiative comes as India, the world's fourth largest polluter, has set a voluntary goal of cutting its carbon intensity "by as much as 25 percent by 2020 from its 2005 levels." Id. Whether this goal can be met by 2020 or not, India is clearly showing that it finds the negatives of carbon emissions from coal use destructive enough to warrant imposing a great deal of new costs on coal companies, which will likely be passed down to the coal company's customers resulting in higher energy bills. It will be interesting to see how India's coal industry will react and whether this decision will be a step forward for alternative energy projects.

Be Careful What You Don’t Ask For, Because You Just Might Get Seventy-Five Million Dollars: Why the Federal Claims Court Got It Wrong in Stearns Co., Ltd. v. United States

Comment By: Kevin A. Floyd; JNREL Vol. 19, No. 1

Abstract By: Tanner James, Staff Member

The Fifth Amendment, in establishing the Takings Clause, prohibits the government from taking private property "for public use, without just compensation." U.S. Const. amend. V. Determining what it means to take, however, may present some difficulty for courts. An overly narrow construction may expose private individuals and corporations to unjust governmental control. An overly broad construction, as was seen in Stearns Co., Ltd. v. United States, 53 Fed. Cl. 446 (2002), may put the Treasury at the mercy of the litigious.

In Stearns, the Federal Claims Court found that implementation of the Surface Mining Control and Reclamation Act of 1977 (SMCRA)—specifically, the restriction of mining within the boundaries of national forests—was sufficient to constitute "taking" of Stearns Co.'s property in violation of the Fifth Amendment. Notably absent from the court's analysis, however, was the fact that Stearns, Co. had bargained away its sovereign control over the mines when it sold the tract(s) of land to the Federal Government prior to the passing of the SMCRA. These self-imposed limits suggest that the plaintiff corporation contemplated subjecting itself to government regulation similar to the SMCRA. Furthermore, the court failed to address the relevant elements of claims that arise under the Takings Clause, and failed to support its ruling with sufficient, relevant precedent.

Whereas the holding in itself may not pose a substantial threat to the government, the risk of opening the door to this kind of precipitous, overbroad interpretation of the Takings Clause does. While the common sentiment is that the government should be limited in its powers, these limitations, if construed too broadly, could render the government helpless against hefty lawsuits...even when they have taken precautions through previous agreements.

Is President Bush’s Vision Impaired? An Analysis of President Bush’s ‘Climate VISION’ Initiative

By: Brittany Howell; article originally appeared in JNREL Vol. 19, No. 1

Abstract By: Ramsey Groves, Staff Member

The Department of Energy introduced the Bush Administration's "Climate VISION" initiative in February 2003. "VISION" represents "Voluntary Innovative Sector Initiatives: Opportunities Now." And its purpose is to encourage American businesses and industries to reduce the ratio of greenhouse gases (GHG's) by eighteen percent. However, because change is voluntary as opposed to mandatory, there is a concern that Climate VISION will have little positive impact on the environment.

Climate change references fluctuations in temperature, precipitation, and wind, and the impacts of these variations can be incredibly problematic. For example, experts predict that climate change will cause severe weather events, such as hurricanes, to occur more often. The earth's climate changes naturally due to variations in the concentration of certain gases in the atmosphere. However, humans can contribute to climate change when they engage in activities that emit greenhouse gases. Many of these gases are products of industrial activity, and thus a number of industries have a stake in the regulation of greenhouse gases.

Affected industries are not in favor of mandates requiring them to reduce emissions because this would be very costly. Further, the Bush Administration opposed policies that required reductions in emissions because of a fear that mandatory targets could harm economic growth. For instance, experts predict a considerable rise in gasoline and electricity prices in the event of emission regulation. The energy, manufacturing, transportation, and forest sectors of the economy would all be affected by mandates requiring emission reductions. While each of these sectors have taken some steps to reduce the ratio of greenhouse gases, many people feel that this voluntary program is not what is needed.

Opponents of the Climate VISION initiative take issue with, among other aspects, the fact that the program is voluntary. In the past, there have been several failures of voluntary initiatives. Few, if any, companies will voluntarily take steps to limit production in a way that will place them at a disadvantage relative to competition. Further, President Bush appears to have been influenced by friends in affected businesses. Critics claim that the Bush Administration consulted with oil companies concerning their climate change policy. These opponents argue that the input of oil companies resulted in an ineffective initiative.

Several viable alternatives to the Climate VISION initiative have been suggested by experts. One proposal is to begin a practice of carbon sequestration. Basically, this process entails storing carbon, a greenhouse gas, so that the buildup of carbon dioxide in the atmosphere will slow. Another alternative is to promote biomass energy.

While the Climate VISION initiative is a step in the right direction, it simply is not enough. Although we cannot implement a program that will negatively affect our struggling economy, other alternatives must be considered. Our legislators and policymakers must assume the task and make effective changes.

KJEANRL Spring Break 2010 Posting Schedule

Dear Readers,
This week the University of Kentucky is on it's annual Spring Break. Though classes are not in session we will be posting abstracts on Tuesday and Thursday.

Thank you for understanding!

Sincerely,
Mark Rouse, Production Editor

Training Minds to Consider the Environment: California’s Proposed Environmental Education Curriculum in Primary and Secondary Public Schools

By: Jessica Layne Drake, Staff Member

The children of our nation are, unquestionably, our future. They are the future presidents, congressmen, teachers, and parents who will pass on the American history and values that are taught to them from this generation. Most of this knowledge might come from the home, but a secondary, influential source is the school – most likely this influence comes from public education systems. The power of the school curriculum first made news this year with a New York Magazine article entitled How Christians Were the Founders, which discussed the Texas School Board's push to place emphasis on the Founder's intent to create a "Christian Nation" in their students' Social Studies education. Russell Shorto, How Christians Were the Founders, New York Times, Feb. 14, 2010, available at http://www.nytimes.com/2010/02/14/magazine/14texbooks-t.html?pagewanted=1. However, Texas is not the only one making changes to its curriculum in an effort to educate in a different way. California, while not as influential with textbook publishers as Texas (mostly because of its despairing financial state), has been working with the State's Environmental Protection Agency to find a way to bring a greater focus on the environment in elementary and secondary public schools – hoping to encourage students to grow up to become future scientists and green technology leaders. California Environmental Protection Agency, http://www.calepa.ca.gov/education/eei/ (last visited Mar. 1, 2010).

This initiative, termed the Education and Environment Initiative (EEI), would affect over 1,000 schools that serve over 6 million children across the state of California. Id. This movement began with legislation mandating the curriculum in public schools in 2003, and required several different California agencies to work together in this nation-leading effort. Id; See 2003 Cal. Legis. Serv. Ch. 665 (A.B. 1548) (West); 2005 Cal. Legis. Serv. Ch. 581 (A.B. 1721) (West). As of this year, proposed legislation will further the initiative in mandatory inclusion of environmental issues taught in public schools. Cal.Pub.Res.Code § 71303 (2009). On January 7, 2010, the California Environmental Protection Agency released a statement declaring that the final approval of this proposed curriculum was granted by the California State Board of Education. California Environmental Protection Agency, Press Release: State's First Environmental Education Curriculum Receives Approval from the State Board of Education (2010), http://www.calepa.ca.gov/PressRoom/Releases/2010/Jan06EEI.pdf. Its implementation, therefore, appears imminent.

Specifically, the curriculum will encourage and teach environmental protection and preservation that will work to establish a green economy in the state. Id. Further, it will expand environmental literacy among students and teach them problem-solving mechanisms in particular environmental areas. Id. Collectively, it will impact public school children in grades K-12 covering 85 EEI Curriculum units that will cover content standards in both Science and History-Social Science. California Environmental Protection Agency,

http://www.calepa.ca.gov/Education/EEI/Curriculum/Default.htm#CurriculumUnits.

While California is the first state to attempt this type of curriculum for their primary and secondary schools, hopefully it will not be the last. Our young students are who we will want to look for in the future for imagination and initiative in a continuing effort to protect and preserve the environment so vital to our world. As Senator Fran Pavley, who first introduced the 2003 legislation, stated in support of the curriculum, "today's environmental issues are integrated into everyday life, and this curriculum gives us the opportunity to help shape our future leaders and educate them about preserving our environment through their everyday academics." California Environmental Protection Agency, Press Release: State's First Environmental Education Curriculum Receives Approval from the State Board of Education (2010), http://www.calepa.ca.gov/PressRoom/Releases/2010/Jan06EEI.pdf. If we support a better environmental education to our students, we very well can assist, today, those future leaders in bettering their own world in the future, for tomorrow is only a day away.

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.