In early 2009, environmental groups sued the EPA for failing to perform its nondiscretionary duty to review and, if appropriate, revise 40 C.F.R. Part 60, Subpart G – “NSPS for Nitric Acid Plants” – as required by the Clean Air Act. The case is styled Environmental Integrity Project et al. v. EPA, No. 09-218 (D.D.C.).

On November 16, 2009, the parties entered into a proposed consent decree that requires the EPA to submit either a proposed rule revising Subpart G or a final determination that no revision is necessary. The proposed rule or determination not to revise must be submitted for publication no later than November 15, 2010, and a final rule or determination not to revise must be submitted for publication no later than November 15, 2011. The EPA Docket is EPA-OGC-2009-0854, and the consent decree can be accessed by clicking here.  The announcement is at 74 Fed. Reg. 58, 954.

In another action, several environmental groups sued EPA in late 2008 alleging that the EPA had failed to promulgate emissions standards for major sources of HAPs from PVC production facilities as required by the Clean Air Act. The case is styled Mossville Environmental Action Now et al. v. EPA, No. 08-1803 (D.D.C.).

On November 16, 2009, the parties entered into a proposed settlement agreement that requires the EPA to submit a proposed rule establishing HAP standards for PVC facilities by October 29, 2010, and a final rule promulgating the standards no later than July 29, 2011. The EPA Docket is EPA-HQ-OGC-2009-0848, and the settlement agreement can be accessed by clicking here.  The announcement is at 74 Fed. Reg. 58,955.

A significant addition to the new rules is a method for calculating the “last day” of a time period.  The new Rule 6(a)(4) differentiates between electronic filing and other means of filing.  For electronic filing, the last day expires at midnight in the court’s time zone.  For all other means of filing, the last day expires when the clerk’s office is scheduled to close. Rule 6(a)(1)(C) still extends the time period for filing when the last day of the period is a weekend or legal holiday, and allows filing until the end of the next day that is not a weekend or a legal holiday.  Moreover, if the Clerk’s office is “inaccessible” on the last day for filing, the deadline is extended until the “first accessible day” that is not a Saturday, Sunday, or legal holiday under Rule 6(a)(3)(B).

The new Rule 6(a)(2) also provides a method of calculating time periods stated in hours.  The rule states that counting for a period stated in hours begins “immediately on the occurrence of the event that triggers the period.”  The rule further mandates that “every hour is counted, including hours during intermediate Saturdays, Sunday, or legal holidays.”  In the event that the last hour falls on a Saturday, Sunday, legal holiday, or on a day the Clerk’s office is inaccessible then the deadline is extended to the same time on the next day that is not a Saturday, Sunday, or legal holiday, or the court is accessible.

The amendments to the current Federal Rules attempt to simplify the attorney’s life with regard to timing and deadlines.  Will the new rules have such an outcome? Only time will tell. 

For a full text of the amended rules, visit www.uscourts.gov/rules.
To view the Power Point Presentation, The Days of Our Circuit Court Lives, click here www.uscourts.gov/rules/presentation.html
To view Time Changes Coming to the Federal Rules, click here http://www.uscourts.gov/ttb/2009-06/article02.cfm. 
See Fed. R. Civ. P. 6 (2009).

In Comer v. Murphy Oil USA , the United States Court of Appeals for the Fifth Circuit overturned a lower court decision that dismissed a punitive class action brought by several plaintiffs who alleged they suffered harm from the defendants whose conduct of operating energy, fossil fuels and chemical industries that contributed to “global warming” climate change, which then increase global surface temperatures causing a rise in sea levels and “strengthening the ferocity” of hurricane Katrina.  The plaintiffs’ claims were based on theories of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. 

The defendants moved to dismiss the plaintiffs’ claims asserting the plaintiffs’ lacked standing as their claims presented a nonjusticiable political question.  Applying Mississippi constitutional law, the lower district court dismissed the plaintiffs’ claims.  The Fifth Circuit Court of appeals disagreed.  The Fifth Circuit held that under Mississippi law the plaintiffs’ claims for nuisance, trespass and negligence did not present a political question.  However, the court dismissed the plaintiffs remaining claims for unjust enrichment, fraudulent misrepresentation and civil conspiracy for failing the prudential standing doctrine.

The district court had ruled in favor of the defendants who argued that the plaintiffs had failed to show that their alleged harms were traceable to the defendants’ actions, and, therefore, that the plaintiffs’ theory was too attenuated.  The Fifth Circuit Court of Appeals disagreed stating that such an argument essentially called upon the court to evaluate the merits of the plaintiffs’ causes of action, which is misplaced at the threshold standing phase of the litigation.

Hence, the Fifth Circuit considered the Plaintiffs’ allegations (that the defendants’ actions had caused the global warming and strengthening of the hurricane) as if they were true.  Since the court considered the plaintiffs’ claims as true, it found their claims to be redressable through monetary damages.  The court went on to explain that as plead under Mississippi law the defendants’ willful, unlawful, unreasonable use of their property to emit greenhouse gases constituted a private nuisance that inflicted injury upon the plaintiffs’ land by causing both the rising sea levels and strengthening of the hurricane. 

However, the Fifth Circuit Court of Appeals dismissed the plaintiffs’ claims for unjust enrichment, fraudulent misrepresentation and civil conspiracy, holding that these claims failed the prudential standing doctrine because the plaintiffs’ had failed to identify a particularized injury that must affect the plaintiff in a personal and individualized way.

In Village of Kivalina v. ExxonMobil Corp. , The United States District Court for the Northern District of California dismissed the plaintiffs’ federal common law nuisance claims.  In this case, the Native American plaintiffs and their village, which is a self-governing federally recognized tribe, sued twenty-four corporate defendants.  The plaintiffs alleged that the defendants destroyed their native island habitat by contributing to “global warming,” which caused a rise in sea levels and diminished the amount of seasonal sea ice that packs along the island surf leaving the island’s beaches exposed to excessive erosion, which made the small island even smaller and essentially uninhabitable. 

The district court dismissed the plaintiffs’ nuisance claims for lack of standing as a nonjusticiable political question.  In doing so, the court held that the plaintiffs’ nuisance claims were void of any judicially discoverable and manageable standards since resolution of a nuisance claim is not based on whether the plaintiff finds the invasion unreasonable, but rather, whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.  

The court said that here the plaintiffs were asking the factfinder to consider the utility of the defendants’ operations against their means by weighing the energy-producing alternatives that were available in the past while considering their respective impact on far ranging issues such as their reliability as an energy source, safety considerations, and the impact of the different alternatives on consumers and business at every level.  The court went on to explain that the factfinder would then have to weigh the benefits derived from those choices against the risk that increasing greenhouse gases would in turn increase the rick of causing flooding along the coast of a remote Alaskan locale.  The count said that the plaintiffs practically ignored this aspect of their claim and otherwise failed to articulate any particular judicially discoverable and manageable standards that could guide a factfinder in rendering a principled, rational and reasoned decision.

The plaintiffs attempted to argue that since they had not sought any injunctive relief that there was no need for the court to determine retroactively what emission limits should have been imposed upon the defendants’ operations.  However, the court found that the plaintiffs’ nuisance claims were problematic in this regard because they called for an initial policy determination that required the court to make a policy judgment of a legislative nature, rather than resolving the dispute through purely legal and factual analysis.  The court said that resolution of the plaintiffs’ nuisance claims required balancing the social utility of the defendants’ conduct with the harm it inflicts.  The court went on to explain that such a process necessarily involves a determination of what would have been an acceptable limit on the level of greenhouse gases emitted by defendants.

In the same vein, the court found that the plaintiffs’ arguments also failed to deal with the fact that resolution of their nuisance claims required the judiciary to make a policy decision about who should bear the costs of global warming.  While the plaintiffs alleged that the defendants caused a substantial portion of greenhouse gas emissions, the plaintiffs also acknowledged that virtually everyone on Earth is responsible on some level for contributing to such emissions.  The court found that plaintiffs, by bringing this lawsuit, had in effect asked the court to make a political judgment that the two dozen or so defendants named in the action should be the only one to bear the costs of contributing to global warming.  Thus, the court held that the allocation of fault and the cost of global warming is a matter that should be left for the executive or legislative branches of government in the first instance.

To see Comer v. Murphy Oil USA click here.

To see Village of Kivalina v. ExxonMobil Corp. click here.

The federal Clean Air Act requires the EPA to set and periodically review limitations on emissions of hazardous air pollutants (“HAPs”) for several sources, and the EPA’s limitations for coal- and oil-fired power plants were due in 2002.

Rather than set limitations for the power plants, EPA issued the Clean Air Mercury Rule (“CAMR”). But a federal court struck down CAMR in an early 2008 opinion titled New Jersey v. EPA, 937 F.2d 649 (D.C. Cir. 2008), which can be found here: http://pacer.cadc.uscourts.gov/docs/common/opinions/200802/05-1097a.pdf.

Subsequently, several medical and environmental groups sued the EPA last winter for its failure to set emissions limitations for coal- and oil-fired power plants. That case is called American Nurses Association v. Jackson, No. 08-2198 (D.D.C.).

As a result, last Thursday the EPA informed the federal court hearing the case that it had reached a settlement with the plaintiffs, and that it would sign a “notice of proposed rulemaking” by March 16, 2011, and a “notice of final rulemaking” for publication no later than November 16, 2011.

Once the “notice of proposed rulemaking” is published, the public will have an opportunity to comment on the proposed limitations on emissions of HAPs by coal- and oil-fired power plants. Afterward, the EPA will consider the public comments and issue the final rule.

The Consent Decree can be found by clicking here.

On September 29, 2009, the EPA announced its own principles for reform, intended to direct Congress in drafting the new legislation.  One such principle includes requiring chemical manufacturers to submit to the EPA the necessary information to conclude that chemicals are safe and do not threaten public health or the environment. Also, the announcement stated that “the EPA should have the authority to take risk management actions when chemicals do not meet safety standards, with flexibility to take into account sensitive subpopulations, costs, social benefits, equity, and other relevant considerations.” Further, the EPA stressed the need to analyze and act on priority chemicals in a timely manner.  Finally, the EPA emphasized increasing “green chemistry,” the production of chemicals that are less toxic, use less energy, or are otherwise advantageous to the environment. See the EPA’s website for more driving principles and fuller explanations: http://www.epa.gov/oppt/existingchemicals/pubs/principles.html.

Noting that the median timeframe for beginning a cleanup has increased from 197 days in the early 1990s to 305 days in the late 2000s, EPA enacted the “Interim Policy” which pushes regional superfund directors to promptly conclude remedial design/remedial action (“RD/RA”) negotiations.

Most important, in the “Interim Policy” EPA instructs the regional directors to more aggressively utilize Unilateral Administrative Orders (UAOs). Section 106 of CERCLA authorizes EPA to use UAOs as a means of initiating cleanup when viable private parties exist but cannot reach a timely settlement with EPA to begin remedial work.

The “Interim Policy” encourages the use of UAOs “as a key component for expediting the RD/RA negotiation process.” Arguably, though, once EPA issues a UAO, the private parties subject to the order lose their bargaining power, effectively ending negotiations and resolving any disputes in favor of EPA.

The “Interim Policy” does not mention the recent U.S. Supreme Court case Burlington Northern & Santa Fe Railway Co. v. United States. That opinion arguably gave PRPs more bargaining power by ruling that liability under CERCLA Section 107 is “divisible” where the record reasonably supports the apportionment of liability.

The new “Interim Policy” might be EPA’s reaction to the empowerment of PRPs to avoid liability or prolong negotiations to assess the “divisibility” of liability as provided by Burlington Northern.

Please read EPA’s “Interim Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations” at EPA’s website: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/rdra-neg-timeline-mem.pdf.

Additionally, you can find the U.S. Supreme Court’s Burlington Northern opinion at http://www.supremecourtus.gov/opinions/08pdf/07-1601.pdf, and our discussion of the opinion at http://www.ryanwhaley.com/supreme-court-rules-on-cercla-arranger-liability-and-divisibility.

The plaintiffs in Connecticut v. American Electric Power Company seek to force the defendants to cap and reduce their carbon dioxide emissions in view of the “clear scientific consensus” on global warming. Rather than sue pursuant to the Clean Air Act, however, the plaintiffs have alleged claims under the federal common law nuisance for injuries attributable to global warming such as reduction in mountain snowpack and its concomitant flooding, increased illness from heat waves and smog, prolonged droughts, flooding, and wildfires, and beach erosion and sea level rise.

The Second Circuit’s opinion did not assert that the plaintiffs will succeed in imposing caps on carbon dioxide emissions, but is very important due to the likelihood that it will prompt a rush of litigation by states and municipalities as well as private interest groups against a broad array of companies.

The ruling – especially when combined with a recent opinion by a federal court that ordered the Tennessee Valley Authority utilize specific pollution controls based on a state nuisance law claim, North Carolina v. TVA, 593 F.Supp.2d 812 (W.D.N.C. 2009) – leaves open a nuisance cause of action against any industrial facility that emits significant quantities of greenhouse gases, and that risk will survive unless and until Congress or the Environmental Protection Agency more pervasively regulate carbon dioxide emissions. For our updates on recent developments in carbon dioxide regulation, please see http://www.ryanwhaley.com/epa-will-begin-monitoring-greenhouse-gas-emissions-in-20101 and http://www.ryanwhaley.com/epa-to-regulate-greenhouse-gasses.

Perhaps most important, the opinion will help future nuisance cases survive dismissal by imposing a low bar for proving the link between CO2 emissions and the claimed injuries: “[Causation] is an issue best left to the rigors of evidentiary proof at a future stage of the proceedings, rather than dispensed with as a threshold question of constitutional standing.”

The Connecticut opinion reveals that until there is a national carbon dioxide emissions policy public and private parties will be able to use the federal courts to seek incremental relief by imposing carbon dioxide caps on individual facilities. The Second Circuit stated:

Nowhere in their complaints do Plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change . . . . A decision by a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies for domestic conduct, does not establish a national or international emissions policy (assuming that emissions caps are even put into place).

The Connecticut opinion should be studied closely by plant managers, environmental managers, and counsel for any facility that produces significant quantities of greenhouse gases, so that going forward members of industry can (1) plan for potential litigation and (2) devise an approach for addressing whether comprehensive federal regulation of greenhouse gases will be preferred over piecemeal litigation.

The Second Circuit’s opinion in Connecticut v. American Electric Power Co., No. 05-5104 (2d Cir. Sept. 21, 2009) can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/f7872f7d-579c-48ea-8483-e14964926376/28/doc/05-5104-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f7872f7d-579c-48ea-8483-e14964926376/28/hilite/.

EPA will add the new regulations to the existing New Source Review/Prevention of Significant Deterioration construction permit and Title V operating permit programs under the Clean Air Act.

According to EPA, the new regulatory program will require subject facilities to obtain permits that would demonstrate they are using the best practices and technologies to minimize GHG emissions. EPA currently plans to develop sector- and source-specific guidance for making Best Available Control Technology determinations.

Please visit the EPA factsheet concerning this new regulatory program at http://www.epa.gov/nsr/fs20090930action.html. EPA will accept comment on this proposal for 60 days after publication in the Federal Register.

Rationale:  In analyzing § 101(5)(B) of the Bankruptcy Code, the court stated that in situations where the equitable remedy is unobtainable, such an equitable claim can be reduced to a money judgment if the claim “gives rise to a right to payment.”  Thereafter, the claim can be discharged in bankruptcy.  Distinguishing between a mortgage, which gives rise to a right of payment in the event of default, and an injunction under RCRA, the court reasoned that because RCRA “does not authorize any form of monetary relief,” an injunction under RCRA does not give rise to a right to payment, and merely entitles the government to order clean up at the defendant’s expense.  Defendant argued that the court should distinguish between types of injunctions, such as those that can be complied with internally versus those that require an independent contractor for compliance, in determining whether or not the claim is dischargeable.  The court rejected this argument, holding that such distinctions are arbitrary and would encourage polluters to hire third parties to clean up, even if fully capable of doing so internally.

Case:  United States v. Apex Oil Co., Inc., 579 F.3d 734 (7th Cir. 2009).

Starting January 1, 2010, EPA will require suppliers of fossil fuels or industrial greenhouse gases (“GHG”), manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions to submit annual reports to EPA.

The gases covered by the proposed rule are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), sulfur hexafluoride (SF6), and other fluorinated gases including nitrogen trifluoride (NF3) and hydrofluorinated ethers (HFE).

EPA’s goal is to account for approximately 85 percent of the nation’s GHG emissions, and the new standard will apply to roughly 10,000 facilities. As a result, the new rule specifically covers many industries, including:

·    Portland cement manufacturing plants

·    Carbon black manufacturing facilities

·    Natural gas distribution facilities

·    Lime and nitric acid production facilities

·    Fossil-fuel fired electric generating units

·    Electroplating, plating, anodizing, and coloring facilities

·    Feedlots, hog and pig farms, and chicken and turkey production

·    Pulp and paper mills and manufacturers of lumber and wood products

·    Chemical manufacturers

·    Petroleum refineries and manufacturers of coal products

·    Manufacturers of motor vehicle parts

·    Lead smelting and refining facilities

·    Municipal solid waste landfills

The first annual reports for the largest emitting facilities, covering calendar year 2010, will be submitted to EPA in 2011.

According to EPA, the rule is intended to provide a better understanding of the sources of GHG emissions, so as to help EPA develop policies and programs to reduce emissions.  EPA provides more information and the text of the rule at its website: http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.