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 (5th 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.