Articles Posted in Environmental

It’s not over until it’s over. The State of Alaska was recently given another opportunity to challenge the U.S. Forest Service’s 2001 “Roadless Rule,” a rule that prohibits the construction and repairs of roads and timber harvesting on millions of acres in the national forests. The case is State of Alaska v. U.S. Department of Agriculture, et al. On November 7, 2014, the D.C. Circuit Court of Appeals reversed the District Court’s dismissal of the State of Alaska’s challenge to the Forest Service’s January 2001 “Roadless Rule,” a rule repealed by the Forest Service in 2005 and reinstated by the District Court for the Northern District of California in a decision issued in 2006, California ex rel. Lockyer v. U.S. Department of Agriculture, 459 F. Supp. 2d 874, 916 (N.D. Cal. 2006) (court reasoned that the elimination of a major nationwide land management program would be sufficient to trigger environmental analysis, rejecting the Department of Agriculture’s argument that replacing the Roadless Rule was a paper exercise).

In 2011, the State of Alaska filed a challenge to the reinstated 2001 “Roadless Rule.” The District Court for the District of Columbia dismissed the action as being untimely filed under 28 U.S.C. § 2401. The Forest Service argued that the State of Alaska’s challenge was out of time because, according to the Forest Service, Alaska’s right of action accrued in 2001 when the 2001 Roadless Rule was issued. On appeal, the Court of Appeals held that “[t]he fundamental problem with the Forest Service’s argument is that the Forest Service repealed the Roadless Rule in 2005. The Forest Service’s 2005 repeal of the Roadless Rule extinguished the right of action that had accrued in 2001.” It further held that the 2006 action of the California District Court effectively resulted in the issuance of “a new rule identical to an old repealed rule” being issued, and created a new right of action “accrued”; “[t]he Forest Service concedes that a new right of action would have accrued in 2006 if the agency acting on its own had issued the new rule.” Accordingly, the Court of Appeals held that the ability of the State of Alaska to file this lawsuit was revived, and its lawsuit is timely. It cited to the “reopener” doctrine, a doctrine “giving rise to a ‘new right of action’ even though the regulation challenged is no different,” citing Sendra Corp. v. Magaw, 111 F.3d 162, 167 (D.C. Cir. 1997). The case was remanded to the District Court for consideration of the State of Alaska’s challenges to the reinstated rule.

Many construction projects are subject to the federal Clean Water Act and its regulation of the discharge of pollutants into the navigable waters of the United States, which the law defines simply as the “waters of the United States”. This definition drives the scope of federal jurisdiction in numerous areas. The EPA and the U.S. Army Corps of Engineers have significant regulatory responsibilities under the Clean Water Act, and these agencies are now proposing to revise the current definition of this very important term.

Today, Pillsbury attorneys Anthony Cavender, Brad Raffle, Wayne Whitlock and Amanda Halter published their advisory titled Oil and Water: Proposed Redefinition of Waters of the U.S. Has Significant Implications for Domestic Operations. The Advisory discusses the EPA and U.S. Army Corps of Engineers announcement of a new Nov. 14, 2014 deadline to submit comments to its much-debated redefinition of the term “Waters of the United States.” The extension, several related legal and regulatory developments since this proposed rule was published in April, and now the results of the election, make this an opportune time to reassess the impact this redefinition will have on domestic operations, including, in particular, oil and gas operations and activities, during a period of extraordinary domestic growth.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, Brad Raffle, Wayne Whitlock or Amanda Halter, the authors of this blog.

On July 16, 2014, the U.S. District Court of the District of Maryland issued an important Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (RCRA), ruling in the case of Sherrill, et al. v. The Mayor and the City Council of Baltimore, 2014 WL 3555956. The City of Baltimore has taken steps to revive and remediate a waterfront property that was the site of a former chemical manufacturing plant. It is conceded that spills and releases of hazardous substances and hazardous wastes have contaminated the site, but the City has entered into an agreement with a casino operator to construct a casino on the property. The matter has been very controversial, causing the plaintiffs in this lawsuit to file a citizen suit under Section 6972 of the RCRA alleging that contaminants are migrating off the property and polluting adjacent properties.

The site was placed by the city into Maryland’s Voluntary Cleanup Program, which required that the City develop adequate cleanup plans. The owner and operator of the proposed casino agreed to take over some of the cleanup operations, and has in fact undertaken waste extraction and removal actions. In connection with the cleanup, the casino operator also ensured that any storm water wastewater discharges were covered by the Maryland General Construction Storm Water Permit, which incorporated the cleanup plans.

The District Court held that this Clean Water Act (CWA) storm water discharge permit triggered the “anti-duplication” provisions of the RCRA and therefore shielded the casino operator from any RCRA liability, and these claims were dismissed. In addition, the claims against the City of Baltimore and the owner of the former chemical plant were also dismissed because the court held that those allegations were insufficiently pled. In effect, this decision expands the CWA permit shield to allegations of RCRA violations.

An appeal has been filed with the 4th Circuit.

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.

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.