ENVIRONMENTAL LAW

FALL 2009

Burlington Northern Santa Fe Railway v. United States, 129 S. Ct. 1870 (2009)

Supreme Court Clarifies Certain Issues Related to CERCLA Liability: In a May 4, 2009, decision related to consolidated cases pertaining to a contaminated site on the National Priorities List (i.e., a “Superfund site”), the Supreme Court weighed in on a few key liability issues under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” – aka the Superfund statute). CERCLA established strict liability for response/clean up costs and natural resource damages for four categories of Potentially Responsible Parties (“PRPs”). The third PRP category included those who arrange for the disposal of hazardous substances (sometimes referred to as arranger or generator liability). Held: While recognizing the necessity of a case-by-case intensive analysis, especially where there was a question about whether an apparent sales transaction could amount to an arrangement for disposal, the Court found that a person must intend to dispose of hazardous substances and that knowledge that there might be leaks or spills of a sold product was insufficient alone to support arranger liability. In particular, the Court reversed the appellate court’s finding Shell liable as an arranger because the evidence did not support an inference that Shell intended spills and other disposal of pesticide products it sold to the historic site operator (whose business was to store and distribute hazardous chemicals). The evidence instead indicated Shell anticipated spills but took measures to encourage mitigating steps by its distributors. The Court also discussed joint and several liability under CERCLA, recognizing utilization of the Restatement of Torts as an appropriate analytical framework and concluding that the District Court in this matter had a reasonable basis to apportion defendant Railroads’ liability.

City of Midlothian v. Black, 271 S.W.3d 791 (Tex. App.Waco 2008)

City Immune From Suit Related to Water Overflow Under Water Code Provision: The plaintiff-landowner sued the subdivision developer and the City of Milothian (“City”) for alleged damages caused by the overflow of diverted or impounded surface water under § 11.086 of the Texas Water Code. The City had approved the developer’s plans and made related inspections. The Water Code provision prohibited impoundments of surface water in a manner that damaged property by overflow, but the court held that there was no waiver of sovereign immunity under the section. In this regard, the court noted there was no dispute over the City’s assertion that its activities were governmental (where sovereign immunity applies absent a waiver) as opposed to proprietary.

Edward Aquifer Authority v. Day, 274 S.W.3d 742 (Tex. App.San Antonio 2008)

Groundwater Became State Water When it Entered Watercourse: Applicants for a groundwater permit from the Edwards Aquifer Authority (“EAA”) challenged the permitting decision and related allowable production amount based on historic use. Held: The appellate court affirmed the District Court’s decision for EAA on the permitting decision but reversed judgment for the EAA related to an unconstitutional taking claim. Regarding the permitting decision, the applicant’s reliance on historic amounts of water used from a lake for irrigation was erroneous. Although groundwater was produced in the past and put in the lake before irrigation, the character of the water changed from groundwater to state owned surface water when it was put in the lake. Thus, it was an inappropriate basis for recognized historic use of groundwater. In relation to the taking claim, the court indicated that the applicant landowners had some ownership rights in groundwater under their land which were entitled to constitutional protection.

City of Dallas v. Hall, 562 F.3d 712 (5^th Cir. 2009)

EIS Not Required for Wildlife Refuge Boundary Establishment: The Fifth Circuit affirmed a Northern District of Texas opinion in favor of the United States Fish & Wildlife Service (“FWS”) regarding the Neches Wildlife refuge between Jacksonville and Palestine. The City of Dallas (“City”) and Texas Water Development Board (“TWDB”) challenged the FWS procedure under the National Environmental Policy Act (“NEPA”), arguing that FWS should have prepared an Environmental Impact Statement (“EIS”) as opposed to merely an Environmental Assessment resulting in a Finding of No Significant Impact under NEPA. The plaintiff’s chief concern related to the establishment of the Refuge precluding a planned water reservoir for the area (Fastrill Reservoir) that would serve the City’s future water needs. The court held that NEPA did not require FWS to prepare an EIS.

Coastal Habitat Alliance v. Patterson, 601 F.Supp.2d 868 (W.D. Tex. 2009)

No Standing to Challenge Wind Farms: The plaintiff-organization sued the private companies building wind farms in Kenedy County as well as State of Texas representatives from the Public Utility Commission and General Land office. The plaintiff’s interests included protecting certain coastal environmental resources from the alleged effects of wind farms. Held: The court found that the plaintiff had no standing to sue the State defendants because there was no private right of action under the federal Coastal Zone Management Act. Further, the court found that the plaintiff also had no standing to sue the private defendants because the requested relief (to prohibit building wind farms pending federal and state environmental review under coastal protection programs) would not redress the alleged injuries of environmental harm and deprivation of environmental review. The opinion included a discussion of federal and state coastal protection programs and standing in federal court.

Sierra Club v. Environmental Protection Agency, 551 F.3d 1019 (D.C. Cir. 2008)

EPA Exemption From Emission Standards for Certain Activities of Major Sources of Hazardous Air Pollutants Vacated: This opinion is noteworthy as the court vacated an EPA exemption from Clean Air Act emission standards for hazardous air pollutants related to startups, shutdowns, and malfunctions of major stationary sources of such pollutants. The opinion included a good discussion of hazardous air pollutant standards and regulation under the Clean Air Act, the history of EPA’s exemption for certain activities from such standards, a related petition for review by the Sierra Club, and the timing of such a challenge.