Articles Posted in Environmental

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A few months ago, the U.S. Supreme Court decided the case of CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014), and held that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 94 Stat. 2767, as amended, 42 U.S.C. §§ 9601 et seq. (CERCLA), the federal Superfund statute, does not preempt state statutes of repose such as the North Carolina 10 year statute of repose. For example, North Carolina’s “statute prevents subjecting a defendant to a tort suit brought more than 10 years after the last culpable act of the defendant. N.C. Gen. Stat. Ann. § 1-52(16) (Lexis 2013) (‘[N]o cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action’); Robinson v. Wadford, ___ N.C.App. ___, ___, 731 S.E.2d 539, 541 (2012) (referring to the provision as a “statute of repose”).” The Waldburger decision imperiled toxic tort lawsuits that were filed against the United States on behalf of many plaintiffs who alleged that the drinking water at Camp Lejeune, North Carolina was contaminated.

In response to the Waldburger decision, the North Carolina Legislature amended the state’s statute of repose (Senate Bill 574, Session Law 2014-17), adding a new exception that would purportedly revive groundwater contamination lawsuits pending on the day of the Supreme Court’s decision. Session Law 2014-44 is titled “An Act to Make Technical Amendments to Session Law 2014-17.” Session Law 2014-17 was signed into law on June 20, 2014, and it provides that “is effective when it becomes law and applies to actions arising or pending on or after that date. For purposes of this section, an action is pending for a plaintiff if there has been no final disposition with prejudice and mandate issued against that plaintiff issued by the highest court of competent jurisdiction where the claim was timely filed or appealed as to all the plaintiff’s claims for relief to which this act otherwise applies.”

On October 14, 2014, the Eleventh Circuit reviewed the application of the revised statute in Bryant v. United States, Case No. 12-15424, and agreed that the amendment substantially amended the law and made it retroactive. However, under North Carolina precedent, the court of appeals held that law cannot be applied on a retroactive basis against the United States. The revised law can only apply prospectively if it is not to divest the United States of a vested right, i.e., the availability of a defense under state law. Interestingly, the Eleventh Circuit was obliged to make an educated “guess” as to the application of North Carolina law because there are no procedures in place by which a question can be certified to the North Carolina Supreme Court.

The case has been remanded to the lower court, where the remaining issues can be sorted out, including whether the last act or omission of the government at Camp Lejeune is covered by the statute of repose.

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On October 6, 2014, the U.S. Court of Appeals for the Eleventh Circuit issued its ruling in the case of Adinolfe, et. at. v. United Technologies Corporation. The Court of Appeals reversed the decision of the lower court to dismiss, with prejudice, two toxic tort cases, involving hundreds of homeowners, at the pleading stage. United Technologies Corporation (UTC) is responsible for the operations of Pratt & Whitney, which operated an aircraft and rocket engine manufacturing plant that the plaintiffs allege released large quantities of toxic materials that migrated through groundwater to the properties of the plaintiffs, damaging their properties and even causing personal injuries.

The District Court presiding judge used a “Lone Pine” order which is used to manage discovery to require the plaintiffs in mass tort cases to provide prima facie factual support, including expert testimony, for their claims or run the risk of having those claims dismissed. See Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507, at *3-4 (N.J. Sup. Ct. Law Div. Nov. 18, 1986). The Court of Appeals decided that a Lone Pine order should not be used as a pre-discovery case management tool before the District Court judge rules on the legal sufficiency of a complaint, and therefore the decision to dismiss must be reversed.

Among the matters reviewed by the Court of Appeals was the District Court’s conclusion that the plaintiffs could not state a claim without alleging that the contamination on their property exceeds the Florida numerical regulatory safe drinking water standard. UTC argued that under Florida law, only contamination above the applicable regulatory standard is actionable, and cited a 2005 decision of a Florida intermediate state appeals court. However, the Court of Appeals held this was an erroneous statement of Florida law: “In sum, while the applicable regulatory standard may be instructive for a trier of fact as evidence of what the government deems safe for the public, it does not amount to an all-purpose benchmark for determining as a matter of law how much one can reasonably contaminate another’s private property, much less a threshold issue that plaintiffs must preemptively address at the pleading stage to state tort claims under Florida law”. The Court of Appeals noted that several courts have ruled that pollution must exceed the relevant regulatory levels to be actionable, but many others have not.

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The celebrated case of Mingo Logan Coal Co. v. EPA was returned to the U.S. District Court of the District of Columbia after the Court of Appeals reversed the District Court’s ruling that EPA had illegally invalidated a Army Corps of Engineers (“Corps”) 404 permit issued to Mingo Logan’s proposed coal mining operations in West Virginia. On March 14, 2014, the Supreme Court rejected any appeal of the DC Circuit’s opinion, which is reported at 714 F. 3d 608. The District Court completed its review of the remaining APA issues and on September 30, 2014, ruled that EPA had broad authority under the law to veto a Corps permitting decision.

Mingo Logan requires Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permits to conduct coal mining operations at the Spruce No. 1 Mine in West Virginia. The permit application process was initiated by Mingo Logan’s predecessor in 1998, and the State of West Virginia issued an NPDES permit to Mingo Logan pursuant to its delegated CWA Section 402 authority, and the Corps issued a CWA 404 permit in 2007. The operations triggered opposition because of the perceived consequences of “mountain fills” in West Virginia and their impact on navigable waters and wildlife in the area. Two years later, EPA asked the Corps to revoke or modify its permitting action, but the Corp refused to do so. EPA accordingly invoked its authority under CWA Section 404(c) to withdraw the disposal sites that were designated in the Corps permit. In 2011, EPA completed its action to withdraw theses designated disposal sites. Mingo Logan sued EPA, and the District Court agreed with its argument that EPA acted too late, a ruling the Court of Appeals reversed in view of the plain language of the statute.

The District Court has now reviewed the remaining APA arguments, in particular whether EPA’s determination that discharges permitted under the 404 permit would cause unacceptable adverse environmental impacts was arbitrary and capricious. The District Court held that EPA’s determination was reasonable, supported by the record, and based on considerations within EPA’s purview. The District Court noted that EPA had continually expressed its concern about the impacts of the proposed discharge while the permit was under review by the Corps. It also held that an email by an EPA official to Mingo Logan that the agency had no interest in pursuing the matter any further after the Corps acted could be disregarded since this kind of statement could not bind the agency. The agency was always free to change its mind, and the email was not the product of a formal legal process requiring APA compliance to do so. While the District Court was critical of EPA’s argument that the proposed discharge would likely harm an endangered species that had never been seen in the area of the proposed coal mining operation, there were plenty of other species that could be harmed.

Finally, the District Court rejected the argument that EPA’s concerns about water quality somehow invaded the State’s regulatory sphere. Under the CWA, West Virginia is given the authority to make water quality rules and designations under CWA 401. EPA’s concerns about downstream water quality were authorized by other provisions of the CWA, and indeed, the agency is not required to consider West Virginia’s water quality determinations at all when it exercises its veto power under CWA Section 404(c). In the District Court’s view, in these circumstances, EPA can impose even stricter water quality standards than those required by the State.

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On September 19, 2014, the U.S. Court of Appeals for the Ninth Circuit held that California Senate Bill 990 violates the Constitutional doctrine of “intergovernmental immunity” because it directly regulates the activities of the US Department of Energy in violation of the Supremacy Clause. S.B. 990 prescribes state radioactive cleanup standards at the Santa Susan Field Laboratory, a site which is undergoing extensive cleanup by the federal government. The case is The Boeing Company v. Movassaghi, Acting Director of the California Department of Toxic Substance Control, et al.

The federal government used the Santa Susan Field Laboratory site, located in Ventura County, to conduct nuclear research, operate nuclear reactors, build and test rockets, and conduct other defense-related work. According to the Ninth Circuit, all of these activities over the years “created a terrible environmental mess”, which the federal government and Boeing, as its contractor, are addressing. The soil, groundwater and bedrock were seriously contaminated.

California enacted S.B. 990, prescribes stringent cleanup standards, purporting to make the large site suitable for subsistence farming activities. However, the Ninth Circuit notes that the doctrine of intergovernmental immunity provides that the activities of the federal government are shielded by the Supremacy Clause from direct state regulation, and S.B. 990 violates this principle. It concluded that no provisions in the Atomic Energy Act, Resource Conservation and Recovery Act or Comprehensive Environmental Response, Compensation, and Liability Act indicate that Congress envisioned a role for the state as embodied in S.B. 990, and therefore the law is of no effect at this site.

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On September 18, 2014, a divided panel of the U.S. Court of Appeals for the Fifth Circuit decided another Deepwater Horizon case. The case is United States v. Transocean Deepwater Drilling, Inc., and involves the statutory authority of the U.S. Chemical Safety and Hazard Investigation Board (CSB) to issue administrative subpoenas to Transocean, the operator of the Deepwater Horizon drilling unit, following the disaster on the Deepwater Horizon drilling unit in the Gulf of Mexico.

Transocean argued that the CSB lacked any authority to issue these subpoenas. According to Transocean, this was a “marine oil spill” from a vessel over which the CSB has no jurisdiction under the Clean Air Act (CAA). The lower court held that the CSB was only investigating the release of airborne gases following this explosion and spill on the Outer Continental Shelf (OCS) in the Gulf of Mexico, and since the Deepwater Horizon was not in fact a “vessel”, the incident was not transportation-related and therefore the National Transportation Safety Board (NTSB) had no jurisdiction over the incident. By law, the CSB cannot investigate a “transportation-related” incident, but if the NTSB has no jurisdiction, then the CSB can step in.

The Fifth Circuit agreed, holding that while the drilling unit was a “vessel” for most purposes, it could also be considered to be a “stationary source” as that term is defined in the CAA because the Deepwater Horizon was physically attached to the seabed. Moreover, parsing the law, the Fifth Circuit held that there must be a category of marine oil spills that are not transportation-related and over which the NTSB lacks jurisdiction.

Judge Jones filed a strong dissent, remarking that virtually every Fifth Circuit decision to date has referred to the drilling unit as a “vessel”, and to call it a stationary source because it was attached to the seabed is to ignore the fact that it was constantly in motion. Judge Jones also disagreed with the majority’s ruling that the NTSB lacked authority to investigate this incident because it was not “transportation-related”. Finally, Judge Jones remarked that, as a result of this ruling, “nearly all non-standard offshore vessels involved in oil and gas production on the OCS will become subject to CAA regulation and reports, in addition to all of the regulatory requirements of ‘traditional vessels’ imposed by the Coast Guard.

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United States Supreme Court decisions provide guideposts for the exercise of environmental permitting and enforcement power by state and federal authorities. Whether a particular facility can be permitted often determines whether it can be built or modified after it has been constructed. In addition, a decision such as the Court’s ruling in the case of Marvin Brandt Revocable Trust v. US has a bearing on land use considerations. Even a decision by the Court not to take up a case will have these same consequences. For instance, the Court’s refusal to review the Mingo Logan Coal Company v. EPA leaves undisturbed the EPA’s asserted power to overturn a Corps of Engineers’ permitting decision, which may create disincentives to begin a project in the first place if it looks controversial.

Recently, we published our advisory Supreme Court Roundup: Recent Environmental Law Rulings and Pending Cases. Our Advisory discusses the United States Supreme Court’s rulings affecting environmental law during the October 2013 Term. With significant pronouncements regarding EPA’s Clean Air Act regulatory authority among them, however, the October 2013 Term was far from uneventful. Several more cases slated for the October 2014 Term presage rulings across a broad spectrum of environmental and administrative law issues.

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UPDATE: The Sacramento Bee, SPI Solar and KDC Solar Announce Joint Ownership of Mountain Creek Project (Feb. 21, 2014)

On January 8, 2014, SPI Solar announced that it has “executed agreements with KDC Solar and China Development Bank (CDB) to provide immediate financing for the previously announced Imclone [solar power] project,” securing its receipt of a $28.5 million cash payment, enabling it to remove $28.5 million of the Imclone project construction loan liability from its balance sheet, and paving the way for it to obtain funding for other solar projects. SPI Solar is a self-proclaimed “global turnkey [vertically integrated] developer and EPC contractor for large-scale solar energy facilities.” SPI Solar’s completed solar projects include the Staples Center and Nokia Theater located in Los Angeles, California, Aerojet located in Folsom, California, and Twentieth Century Fox Motion Picture Studios located in Los Angeles.

Other Sources: The Wall Street Journal; pv tech; The Sacramento Bee

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Thirteen years after the complaint was filed, on Monday, December 16, 2013, California Superior Court Judge James P. Kleinberg, in People of the State of California v. Atlantic Richfield Co. et al., Santa Clara Superior Court Case No. 1-00-cv-788657, issued a proposed statement of decision (SOD) after a 23-day bench trial premised on an “alleged public nuisance created by lead paint manufactured or sold by five Defendants in ten jurisdictions in California.” SOD p. 1. The sole cause of action remaining in the fourth amended complaint (Complaint) was for a public nuisance stemming from sales of lead paint and pigments that were alleged to have contributed to the contamination of private homes and apartment buildings and risked residents’ health. The remedy sought was abatement of the public nuisance within the prosecuting entities’ jurisdictions. In the SOD, Judge Kleinberg found for the People and against ConAgra Grocery Products LLC (ConAgra), NL Industries Inc. (NL) and Sherwin-Williams Co. (SW) and dismissed the other two defendants.

Ultimately, the SOD ordered “institution of the abatement plan and establishment of the Fund,” as contemplated by the SOD. SOD p. 110. The abatement contemplated is “based solely on the issue of lead paint as produced, promoted, sold, and used for interior use.” SOD p. 10. The 4-year program is to encompass outreach efforts, inspections and, if necessary, abatement of lead paint hazards in about 2.84 million pre-1978 homes determined to pose the greatest likelihood of lead poisoning risk to children; $605 million, or 55% of the $1.1 billion Fund, will be set aside to pay for lead removal in Los Angeles County. SOD p. 108.

The Public Nuisance-Related Allegations

The operative Complaint alleges a single cause of action for “Public Nuisance On Behalf of the People of the State of California.” In support of this cause of action, the Complaint contends that “Defendants are liable in public nuisance in that they created and/or contributed to the creation of and/or assisted in the creation and/or were a substantial contributing factor in the creation of the public nuisance … , including, but not limited to: (a) “Engaging in a massive campaign to promote the use of Lead on the interiors and exteriors of private residences and pub lie and private buildings and for use on furniture and toys;” (b) “Failing to warn the public about the nature of Lead and its attendant health hazards;” (c) “Systematically selling, promoting, and distributing Lead throughout California for exterior and interior use, including use on furniture and toys, despite medical reports indicating that children were dying and suffering from serious injuries from Lead;” (d) “Engaging in a campaign to discredit the medical and scientific literature linking Lead poisoning to Lead;” (e) “Engaging in a concerted campaign to stop regulation of, and restrictions on, the use of Lead;” and (f) “Developing and establishing programs to increase the market for Lead.”

The Complaint further contends that “[a]s a direct and proximate result of Defendants’ conduct, Lead is present in, on and around large numbers of private and public buildings and property throughout the State of California, including residential homes.” It further contends that this Lead “inevitably has deteriorated and/or is deteriorating and/or will deteriorate thereby contaminating these homes, buildings, and property” and, “[a]s a direct and proximate result of Defendants’ conduct, large numbers of people throughout the State of California, and particularly children, have been exposed and/or are being exposed and/or will be exposed to Lead in, on and around the contaminated homes, buildings, and other property throughout the State of California, thereby affecting the health, safety, and welfare of each of those children.”

California’s Public Nuisance Law

California law defines “nuisance” to include “[a]nything which is injurious to health, including, but not limited to, … an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” Cal. Civ. Code § 3479. In turn, it defines “public nuisance” to mean a nuisance “which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” Cal. Civ. Code § 3480. The remedies against a public nuisance include abatement. Cal. Civ. Code § 3491. “A civil action may be brought in the name of the people of the State of California to abate a public nuisance … by the district attorney or county counsel of any county in which the nuisance exists, or by the city attorney of any town or city in which the nuisance exists.” Cal. Code Civ. Proc. § 731; Cal. Gov. Code § 26528.

According to the SOD, “the following language of the Appeals Decision is controlling:

“Here, the representative cause of action is a public nuisance action brought on behalf of the People seeking abatement. Santa Clara, SF, and Oakland are not seeking damages for injury to their property or the cost of remediating their property. Liability is not based merely on production of a product or failure to warn. Instead, liability is premised on defendants’ promotion of lead paint for interior use with knowledge of the hazard that such use would create. This conduct is distinct from and far more egregious than simply producing a defective product or failing to warn of a defective product; indeed, it is quite similar to instructing the purchaser to use the product in a hazardous manner, which [City of Modesto Redevelopment Agency v. Superior Court , 119 Cal.App.4th 28 (2004)] found could create nuisance liability.’ (emphasis in original) [County of Santa Clara v. Atlantic Richfield Co., 136 Cal. App. 4th 282, 309 (2006)].
***
Because this type of nuisance action does not seek damages but rather abatement, a plaintiff may obtain relief before the hazard causes any physical injury or physical damage to property. A public nuisance cause of action is not premised on a defect in a product or a failure to warn but on affirmative conduct that assisted in the creation of a hazardous condition. Here, the alleged basis for defendants’ liability for the public nuisance created by lead paint is their affirmative promotion of lead paint for interior use, not their mere manufacture and distribution of lead paint or their failure to warn of its hazards. Id. at 309-310.

***

‘[L]iability for nuisance does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.’ (emphasis supplied by Judge Kleinberg) Id. at 306, quoting Modesto at 38[.]”

SOD at 7. “[A]lthough California’s general nuisance statute expressly permits the recovery of damages in a public nuisance action brought by a specially injured party, it does not grant a damage remedy in actions brought on behalf of the People to abate a public nuisance.” People ex rel. Van de Kamp v. American Art Enterprises, Inc., 33 Cal.3d 328, 333 n.11 (1983).

Prohibition On Use of Lead Based Paint

In 1978, the U.S. Consumer Product Safety Commission prohibited the use of lead-based paint in homes. 16 C.F.R. § 1303.4. According to the People: “ConAgra manufactured lead pigments for use in house paints from 1894 until 1958. ConAgra was a member of the [Lead Industries Association (LIA)] from 1928 through 1958 and a Class A member of the [National Paint Varnish and Lacquer Association (NPVLA)] from 1933 through 1962.” SOD p. 21. “NL manufactured lead pigments for use in house paints from 1891 until 1978. NL was a member of the LIA from 1928 until 1978 and a member of the NPVLA from 1933 through 1977.” SOD p. 22. “SW manufactured lead pigments for use in house paints from 1910 to 1947. It manufactured paints with lead pigments from 1880 through the 1970s. SW was a member of the LIA from 1928 through May 1947 and was a Class A member of the NPVLA from 1933 through 1981.” Id.

The Proposed Statement of Decision

Judge Kleinberg was “convinced that the [defendants’] knowledge need not be actual, although proof of actual knowledge has been put in evidence, but that constructive knowledge will suffice.” Id. at 9. He found that the defendants’ constructive knowledge
“took a variety of forms,” citing to numerous sources, including NL Industries internal publications, medical journal articles going back to 1917, information from trade associations going back to the 1930s and other litigation. Id. at 13. He concluded that:

“Despite this actual and constructive knowledge, each Defendant promoted lead pigment and/or lead paint for home use. Defendants’ assertion that they were not aware of the effects of low-level lead exposure until long after they stopped producing and promoting lead paint is of no moment. Each Defendant certainly knew or should reasonably have known that exposure to lead at high levels, including exposure to lead paint, was fatal or at least detrimental to children’s health. That knowledge alone should have caused each Defendant to cease its promotion and sale of lead pigment and/or lead paint for home use. Instead, after becoming aware of the hazards associated with lead paint, they continued to sell it.”

Id. at 10 (internal citations omitted). He further found that “[a]t the same time they were promoting lead paint for home use, each Defendant knew that high level exposure to lead–and, in particular, lead paint–was fatal. Each Defendant also knew that lower level lead exposure harmed children.” Id. at 24. He found “ample authority to hold the Defendants liable.” Id. at 95.

Judge Kleinberg recognized that “[s]eeking the abatement of lead by inspections and rehabilitation of tens of thousands of homes – at a minimum — is a daunting decision.” Id. at 94. However, he was “convinced that although great strides in reducing lead exposure have been made, and the incidence of exposure with correlative blood lead levels has declined to a low level, thousands of children in the jurisdictions are still presently and potentially victimized by this chemical.” Id. He then confirmed that the proposed abatement plan, as amended by the court, “is an appropriate remedy justified by the facts and the law.”

Judge Kleinberg was not persuaded “that since the various lead control programs have been successes no further efforts are appropriate.” Id. at 96. He reasoned that “the existence of other sources of lead exposure has no bearing on whether lead paint constitutes a public nuisance. It does not change the fact that lead paint is the primary source of lead poisoning for children in the Jurisdictions who live in pre-1978 housing.” Id.

The companies likely will file objections to the SOD and, if the objections are not accepted, the defendants may ask for a new trial or mistrial. If that is denied, they may appeal. If the decision stands, the companies will be jointly responsible for paying $1.1 billion into a specifically designated, dedicated, and restricted abatement fund that will be used to abate lead paint contamination in potentially millions of homes in 10 California counties and cities.

Other Sources: U.S. Department of Housing and Urban Development; California Department of Public Health; Los Angeles Times; People of the State of California v. Atlantic Richfield Co. et al. Docket; Environmental Protection Agency

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