New Environmental Case Opinions – Bastille Day Edition


In the case of Energy Future Coalition, et al. v. EPA, decided July 14, 2015, the D.C. Circuit Court of Appelas rejected a challenge to 2014 EPA rules regulating emission testing requirements for new motor vehicles– 40 C.F.R. § 1065.701(a). The rule requires that a “test fuel” be used by the manufacturers that is “commercially available”. The petitioners, representatives of biofuel producers whose fuel contains 30% ethanol, complain that since their fuel is not designated as being “commercially available” by EPA, the rule adversely affects them and is arbitrary and capricious. The Court of Appeals rejected this challenge because EPA’s rules were simply reflecting the statutory scheme enacted by the Congress.

Also on July 14, 2015, in Sierra Club v. EPA, the Sixth Circuit Court of Appeals, in a typically complex Clean Air Act (CAA) dispute, agreed with the Sierra Club that EPA’s redesignation of the Ohio and Indiana portions of the Cincinnati-Hamilton area as now being in attainment for the National Ambient Air Quality Standards (NAAQS) for particulate matter violated the CAA. EPA had approved the state’s requests for redesignation based largely on their state implementation plan’s (SIP) adoption of regional cap-and-trade programs that reduced the flow of interstate pollution. The Sierra Club argued that the three states never fully implemented “reasonably available control measures applicable to nonattainment areas.

The opinion contains a very interesting discussion of the Sierra Club’s standing to challenge the redesignation action in a direct appeal to the Sixth Circuit. After a lengthy analysis, the Court of Appeals found it “reasonable to infer actual and imminent aesthetic and physical injuries to an identified member of the Club from redesignation of the Cincinnati area”. On the merits, and based on Chevron deference (Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)), the Court of Appeals upholds EPA’s determination that the CAA allows for a showing of air quality improvement at least partially due to regional cap-and-trade schemes. However, the challenge to EPA’s approval of the Ohio and Indiana SIPs without insisting upon RACM and RACT provisions specifically targeting fine particulate matter was accepted largely on the basis of circuit precedent. A contrary and conflicting decision of the Seventh Circuit was not persuasive. In the words of the Court of Appeals: “In sum, a State seeking redesignation ‘shall provide for the implementation’ of [Reasonably Available Control Measures/Reasonably Available Control Technology (RACM/RACT)], even if those measures are not strictly necessary to demonstrate attainment with the PM2.5 NAAQS. See 42 U.S.C. § 7502(c)(1).”

In a Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d)(2)(A) (“RCRA”), criminal prosecution, U.S. v. Roach, decided earlier in July, the Ninth Circuit Court of Appeals rejected the defendant’s challenge to his conviction for illegally storing hazardous waste without a permit because, under the terms of the law, he was guilty of illegal disposal, and not illegal storage. The defendant managed an electroplating operation in Burbank, California, which contained an unpermitted drum storage area. Hundreds of containers were stored in this area for many years, but the defendant apparently took few, if any, measures to come into compliance with the RCRA rules. After his eviction from the premises, it was discovered that a large number of barrels containing hazardous waste were left behind, and some of them were corroded and leaking. The Court of Appeals rejected the defense based on RCRA’s technical definitions of “storage” and “disposal”, in which the defendant argued that storage could never be disposal, and concluded that he was guilty of disposal and therefore not of storage. According to the Ninth Circuit, he was clearly engaged in storing hazardous waste in the sealed and intact containers left behind. The Court of Appeals concluded that “[i]f ‘may enter the environment’ bears the weight that Roach would give it, then ‘storage’–which, as Roach
repeatedly emphasizes, is defined to exclude any action that constitutes disposal–would be stripped of all effect. This cannot possibly have been the intent of Congress.”