environmental law

American Trucking Associations, Inc. v. City of Los Angeles

Starting in 2008, one of the busiest ports in the United States, the Port of Los Angeles (POLA), entered into “concession agreements” with motor carriers doing business at the port. POLA enforced the agreements through a system of tariffs levied against noncompliant carriers and remedial provisions that empowered it to revoke noncompliant carriers’ access to the port. The American Trucking Association (ATA) sued POLA, arguing that the agreements were barred under the Federal Aviation Administration Authorization Act of 1994 (FAAAA) and the Supreme Court’s decision in Castle v. Hayes Freight Lines, Inc. The Central District of California and Ninth Circuit found that multiple provisions of the concession agreements were exempted from the FAAAA’s preemption clause under the market-participant doctrine and held that Castle did not bar suspension of carriers’ port access because of the FAAAA’s express safety exemption. In resolving the questions presented, the Supreme Court will determine the scope of the market-participant exemption to FAAAA preemption and whether Castle bars POLA from enforcing its concession agreements through revocation or suspension of port access. The case directly affects local and state governments’ power to regulate and contract under the FAAAA and similar Congressional legislation and has broad regulatory implications for motor carriers and other regulated actors in interstate commerce.

Questions as Framed for the Court by the Parties

Title 49 U.S.C. § 14501(c)(1), originally enacted as a provision of the Federal Aviation Administration Authorization Act of 1994, provides that “a State [or] political subdivision . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... with respect to the transportation of property.” It contains an exception providing that the express preemption clause “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” Id. § 14501(c)(2)(A). The questions presented are:

  1. Whether an unexpressed “market participant” exception exists in Section 14501(c)(1) and permits a municipal governmental entity to take action that conflicts with the express preemption clause, occurs in a market in which the municipal entity does not participate, and is unconnected with any interest in the efficient procurement of services.
  2. Whether permitting a municipal governmental entity to bar federally licensed motor carriers from access to a port operates as a partial suspension of the motor carriers’ federal registration, in violation of Castle v. Hayes Freight Lines, Inc., 348 U.S. 61 (1954).

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Issue

Does federal law prevent enforcement of certain aspects of motor carrier-related contracts used by the Port of Los Angeles?

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City and County of San Francisco v. Environmental Protection Agency

Issues

Does the Clean Water Act allow the Environmental Protection Agency to discipline permit-holders for violations of water quality standards without enumerating specific limits to which permit holders’ water discharges must conform?

This case asks the Supreme Court to determine if the Environmental Protection Agency (“EPA”) must impose specific limits in the permits it distributes under the Clean Water Act (“CWA”). The CWA empowers the EPA to issue National Pollutant Discharge Elimination System (“NPDES”) permits to cities and businesses that discharge waste. The City of San Francisco contends that the EPA can only establish limitations on effluent discharges under the permit, and that it lacks the authority to establish other generic requirements. The EPA counters that its authority reaches beyond effluent limitations and that it is permitted to enforce limitations on water receiving standards. The outcome of this case has profound implications on businesses’ ability to avoid legal liability, as well as the interests of local communities.

Questions as Framed for the Court by the Parties

Whether the Clean Water Act allows EPA (or an authorized state) to impose generic prohibitions in NPDES permits that subject permitholders to enforcement for exceedances of water quality standards without identifying specific limits to which their discharges must conform.

Like most cities in the United States, San Francisco operates a combined sewer system that collects both sewage and stormwater runoff. City of San Francisco v. U.S. EPA (“Ninth Circuit”) at 7. During extreme weather, the system occasionally exceeds capacity causing a combined sewer overflow (“CSO”) that discharges pollutants into surrounding waterways.

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Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)

County of Maui, Hawaii v. Hawaii Wildlife Fund (No. 18-260)

Issues

Under the Clean Water Act, is a permit required for a point source that transmits pollutants to navigable waters through an intermediary nonpoint source, such as groundwater?

This case asks the Supreme Court to determine whether pollution added to navigable waters through a nonpoint source is regulated by the Clean Water Act (“CWA”). A point source is a discernable, confined, and discrete conveyance that includes pipes, ditches, and other clearly discernable means from which pollutants are or can be discharged into navigable waters. County of Maui (“Maui”) contends that pollutants that enter navigable waters through nonpoint sources, like groundwater, are too attenuated to attach liability under the CWA. Maui argues that pollutants that enter navigable waters through nonpoint sources are not added “directly to” navigable water and thus fall outside the scope of 33 U.S.C. § 1362(12)(A), the statute that codifies which pollutant discharges are subject to the CWA’s permit requirements. Hawai’i Wildlife Fund (“HWF”) counters that Maui’s reading is underinclusive and that the CWA’s intended purpose is to regulate pollutants not just added directly to navigable waters, but also those that were simply added to navigable waters. HWF argues that discharges of pollutants to nonpoint sources which then enter navigable waters fall within the meaning of “discharge of a pollutant” under the CWA. The outcome of this case has important implications for the continued viability of the National Pollutant Discharge Elimination System’s permit program, the divide between federal and state control of groundwater regulations, and the fiscal impact that the CWA has on individual landowners.

Questions as Framed for the Court by the Parties

Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. 

In 1972, Congress passed 33 U.S.C. § 1251, or the Clean Water Act (“CWA” or “Act”), to preserve the “Nation’s waters” by prohibiting the “discharge of any pollutant” unless certain requirements in the Act are met. Hawai'i Wildlife Fund v.

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Decker, et al., v. Northwest Environmental Defense Center,Georgia-Pacific West, et al., v. Northwest Environmental Defense Center

Issues

Whether citizens can file a lawsuit to challenge the validity of the EPA granting an exception to the National Pollutant Discharge Elimination System permit requirement.

If a citizen's lawsuit is permissible, what level of deference, if any, should be given to the EPA’s interpretation of the Clean Water Act and the NPDES permit requirements with respect to the logging industry.

 

The Environmental Protection Agency ("EPA") has interpreted the Clean Water Act ("CWA") in such a way so that certain logging activities that cause polluted water to run off of forest roads and into ditches, culverts, or pipes are exempt from the permit process. Relying on §1365 of the CWA, the Northwest Environmental Defense Center ("NEDC") brought a citizen’s lawsuit in federal district court in an attempt to eliminate the exemption from the permit process. The Petitioners argue that a citizen's lawsuit was impermissible in this case because of §1369 of the CWA. The parties also do not agree on the level of deference that the EPA should have been given in interpreting its regulations. Furthermore, the NEDC takes issue with the way EPA interprets several key phrases in the CWA, which affects the substance of the EPA’s decision. The ability of federal courts to review agency action as well as the scope of an agency’s authority are at stake in this case. Also, the Supreme Court’s decision can clarify the ability of citizens to bring an action to change the EPA’s course of action under the CWA. Finally, these procedural and administrative questions could ultimately have an effect on the environment and water quality as well as the procedures loggers must follow to ensure they comply with the CWA.

Questions as Framed for the Court by the Parties

DECKER, ET AL. V. NORTHWEST ENVTL. DEFENSE CENTER

(1) Congress has authorized citizens dissatisfied with the Environmental Protection Agency’s ("EPA") rules implementing the Clean Water Act’s ("CWA") National Pollutant Discharge Elimination System ("NPDES") permitting program to seek judicial review of those rules in the Courts of Appeals. See 33 U.S.C. § 1369(b). Congress further specified that those rules cannot be challenged in any civil or criminal enforcement proceeding. Consistent with the terms of the statute, multiple circuit courts have held that if a rule is reviewable under 33 U.S.C. § 1369, it is exclusively reviewable under that statute and cannot be challenged in another proceeding. 

Did the Ninth Circuit err when, in conflict with those circuits, it held that a citizen may bypass judicial review of an NPDES permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the CWA?

(2) In 33 U.S.C. § 1342(p), Congress required NPDES permits for stormwater discharges “associated with industrial activity,” and delegated to the EPA the responsibility to determine what activities qualified as “industrial” for purposes of the permitting program. The EPA determined that stormwater from logging roads and other specified silvicultural activities is non-industrial stormwater that does not require an NPDES permit. See 40 C.F.R. § 122.26(b)(14).

Did the Ninth Circuit err when it held that stormwater from logging roads is industrial stormwater under the CWA and EPS’s rules, even though EPA has determined that it is not industrial stormwater? 

GEORGIA-PACIFIC WEST, ET AL. V. NORTHWEST ENVTL. DEFENSE CENTER 

Since passage of the Clean Water Act, the Environmental Protection Agency ("EPA") has considered runoff of rain from forest roads--whether channeled or not--to fall outside the scope of its National Pollutant Discharge Elimination System (“NPDES”) and thus not to require a permit as a point source discharge of pollutants. Under a rule first promulgated in 1976, the EPA consistently has defined as non-point source activities forest road construction and maintenance from which natural runoff results. And in regulating stormwater discharges under 1987 amendments to the Act, the EPA again expressly excluded runoff from forest roads. In consequence, forest road runoff long has been regulated as a nonpoint source using best management practices, like those imposed by the State of Oregon on the roads at issue here.

The EPA’s consistent interpretation of more than 35 years has survived proposed regulatory revision and legal challenge, and repeatedly has been endorsed by the United States in briefs and agency publications.

The Ninth Circuit--in conflict with other circuits, contrary to the position of the United States as amicus, and with no deference to the EPA--rejected the EPA’s longstanding interpretation. Instead, it directed the EPA to regulate channeled forest road runoff under a statutory category of stormwater discharges “associated with industrial activity,” for which a permit is required. The question presented is:

Whether the Ninth Circuit should have deferred to the EPA’s longstanding position that channeled runoff from forest roads does not require a permit, and erred when it mandated that the EPA regulate such runoff as industrial stormwater subject to NPDES.

The Clean Water Act (“CWA”) prohibits the discharge of pollutants from a point source into the navigable waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit. The Act defines a “point source” as “any discernible, confined and discrete conveyance.” 33 U.S.C.

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Diamond Alternative Energy LLC v. Environmental Protection Agency

Issues

If a regulation doesn’t affect a party directly but only predictably, can that party still satisfy the redressability requirement for standing and bring a lawsuit?

This case asks the Court to determine whether fuel producers, like Diamond Alternative Energy, have standing to sue the EPA for its decision to allow California to impose stricter emissions standards than those in the federal Clean Air Act. Diamond argues that, while the decision affects only car manufacturers directly, and fuel producers only indirectly, the decision’s negative consequences for conventional fuel producers are so predictable that they should be able to sue to block the decision. Petitioners further argue that not allowing those who are indirectly regulated to sue would leave them dependent on third parties who may not share their interests and give the government an incentive to impose burdensome regulations. The Environmental Protection Agency, on the other hand, contends that allowing this type of standing would undermine the purpose of the Court’s standing requirements, which is to ensure that the Court resolves real, not hypothetical disputes and that a favorable court decision for a plaintiff remedies the harm they allege. This case touches on important questions about how regulations affect a variety of parties and who can bring suit when they believe the government has harmed them.

Questions as Framed for the Court by the Parties

Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties.

The Clean Air Act (“CAA”) gives the Environmental Protection Agency (“EPA”) the authority to promulgate federal emissions standards for new automobiles which preempt any conflicting state regulations because of 

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Entergy Corp v. EPA; PSEG Fossil LLC v. Riverkeeper, Inc.

Issues

May the EPA perform a cost-benefit analysis to decide which technologies best minimize adverse environmental impacts on marine life stemming from cooling water intake structures?

 

Cooling water intake structures divert billions of gallons of water into coolant systems for industrial equipment and power generation. These systems can injure or kill billions of aquatic organisms, resulting in severe environmental impacts. Congress sought to remedy this problem through 33 U.S.C. §1326(b). The statute requires that “cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” The “best technology available” requirement is the heart of the dispute. In enforcing the statute, the Environmental Protection Agency (“EPA”) turned to a cost-benefit analysis. If the cost of a particular technology was not justified by a corresponding environmental benefit, the technology was not required. Environmental groups sued to require the EPA to employ a cost only analysis. This analysis requires the best technology a facility could afford, even if the environmental benefit generated was minimal. This case will affect the EPA’s method of regulating cooling water intake structures, potentially leading to greater costs for power plants and industry. Increased costs may disrupt the energy industry and potentially lead to greater costs for consumers.

Questions as Framed for the Court by the Parties

Whether Section 316(b) of the Clean Water Act, 33 U.S.C. 1326(b), authorizes the Environmental Protection Agency (EPA) to compare costs with benefits in determining the "best technology available for minimizing adverse environmental impact" at cooling water intake structures. The cases are consolidated and a total of one hour is allotted for oral argument.

Industry diverts billions of gallons of water a day into water-intake coolant systems in order to cool industrial equipment and also to generate power. See Riverkeeper, Inc. v. EPA, 358 F.3d 174, 181 (2d. Cir.

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Environmental Defense v. Duke Energy Corp.

Issues

Should the Fourth Circuit have heard this case when the Clean Air Act dictates that parties can only challenge CAA regulations in the D.C. Circuit? And is the EPA’s longstanding regulatory definition of “increase” unlawful if it is consistent with the CAA definition of “modification,” which governs the NSPS and PSD?

 

In 2000, the Environmental Protection Agency sued Duke Energy Corporation for making a number of upgrades to its power plants without filing for permits under the Prevention of Significant Deterioration (“PSD”) program. The PSD program, which was added to the Clean Air Act in 1977, regulates “major modifications” to existing power plants. Duke Energy first argues that the 1971 New Source Performance Standards (“NSPS”) provide a definition of “modification” that governs the PSD program; Duke then argues that the changes to its plants do not fall within the NSPS definition of “modification.” In 1980 the EPA promulgated regulations providing a more stringent definition of “modification,” and Environmental Defense, which has stepped in as a plaintiff in the case, maintains that this more stringent definition applies to the PSD. The Court of Appeals for the Fourth Circuit agreed with Duke Energy, holding that the NSPS definition of “modification” must be applied to the PSD program. The Supreme Court’s decision will affect how energy companies assess the costs of rebuilding or renovating older plants, and it could potentially lead environmentalists to push for more stringent standards for changes made to existing plants.

Questions as Framed for the Court by the Parties

Whether the Fourth Circuit's decision violated Section 307(b)of the Act, which provides that national Clean Air Act regulations are subject to challenge “only” in the D.C. Circuit by petition for review filed within 60 days of their promulgation, and “shall not be subject to judicial review” in enforcement proceedings, 42 U.S.C. 7607(b); and

Whether the Act's definition of “modification,” which turns on whether there is an “increase” in emissions and which applies to both the NSPS and PSD programs, rendered unlawful EPA’s longstanding regulatory test defining PSD “increases” by reference to actual, annual emissions.

In 1988, Duke Energy Corporation (“Duke”), which provides energy to customers in North and South Carolina, began the process of upgrading coal-fired generators in eight of its plants. Environmental Defense v. Duke Energy, 411 F.3d 539, 542 (4th Cir. 2005).

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EPA v. EME Homer City Generation

Issues

Consolidated with American Lung Association v. EME Home City Generation (12-1183).

  1. Did the EPA permissibly interpret the phrase “contribute significantly” when it balanced achievable emission reduction levels against the cost of achieving such emission reductions?   
  2. Can states wait for the EPA to adopt a rule quantifying each state’s “good neighbor” obligations before they adopt a state implementation plan prohibiting emissions that “contribute significantly” to other states’ pollution problems?

In 1963, in response to growing concerns of pollution, Congress passed the Clean Air Act (CAA). The CAA requires the Environmental Protection Agency (EPA) to set certain air quality standards for harmful pollutants, and includes a “Good Neighbor” provision requiring states to adopt plans that prohibit pollution that would “contribute significantly” to other states’ nonattainment of these standards.  However, the CAA does not define “significant contribution.”  In 2011, the EPA finalized a rule known as the “Transport Rule.”  Mirroring the language of the “good neighbor” provision, the Transport Rule defines emission reduction obligations for several upwind states that “contribute significantly” to downwind states’ nonattainment of the EPA’s air quality standards.  In determining what constitutes a significant contribution, the EPA balanced achievable emission reductions against the cost of achieving those reductions.  However, in EME Homer City Generations v. EPA, the D.C. Circuit struck down the Transport Rule and rejected the EPA’s analysis for determining what constitutes a significant contribution in this context.  These two cases present the Supreme Court with questions about the EPA’s interpretation of its statutory grant of authority under the CAA as well as questions about the jurisdiction of the D.C. Circuit to hear the challenges presented.  This case also raises concerns about federal intervention in state affairs and public health concerns posed by the EPA’s interpretation of the CAA.  Should the Supreme Court decide this case on the merits, the Court’s decision will significantly affect the EPA’s grant of authority to regulate interstate pollution. 

Questions as Framed for the Court by the Parties

EPA V. EME HOMER CITY GENERATION

The Clean Air Act, 42 U.S.C. 7401 et seq. (Act of CAA), requires the Environmental Protection Agency (EPA) to establish National Ambient Air Quality Standards (NAAQS) for particular pollutants at levels that will protect the public health and welfare. 42 U.S.C. 7408, 7409.  “[W]ithin 3 years” of promulgation of a [NAAQS],” each State must adopt a state implementation plan (SIP) with “adequate provisions” that will, inter alia, “prohibit[]” pollution that will “contribute significantly” to other States’ inability to meet, or maintain compliance with, the NAAQS. 42 U.S.C. 7410(a)(1), (2)(D)(i)(I).  If a State fails to submit a SIP or submits an inadequate one, the EPA must enter an order so finding. 42 U.S.C. 7410(k).  After the EPA does so, it “shall promulgate a [f]ederal implementation plan” for that State within two years. 42 U.S.C. 7410(c)(1).   

The questions presented are as follows: 

  1. Whether the court of appeals lacked jurisdiction to consider the challenges on which it granted relief.
  2. Whether States are excused from adopting SIPs prohibiting emissions that “contribute significantly” to air pollution problems in other States until after the EPA has adopted a rule quantifying each State’s interstate pollution obligations.
  3. Whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind State’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind State’s physically proportionate responsibility for each downwind air quality problem.

American Lung Association v. EME Home City Generation (12-1183)

QUESTIONS PRESENTED:

The Clean Air Act’s “Good Neighbor” provision requires that state implementation plans contain “adequate” provisions prohibiting emissions that will “contribute significantly” to another state’s nonattainment of health-based air quality standards. 42 U.S.C. 7410(a)(2)(D)(i).  A divided D.C. Circuit panel invalidated, as contrary to statute, a major EPA regulation, the Transport Rule, that gives effect to the provision and requires 27 states to reduce emissions that contribute to downwind states’ inability to attain or maintain air quality standards.  The questions presented are:

  1. Whether the statutory challenges to EPA’s methodology for defining upwind states’ “significant contributions” were properly before the court, given the failure of anyone to raise these objections at all, let alone with the requisite “reasonable specificity,” “during the period for public comment,” 42 U.S.C. 7607(d)(7)(B);
  2. Whether the court’s imposition of its own detailed methodology for implementing the Good Neighbor provision violated foundational principles governing judicial review of administrative decision-making; 
  3. Whether an upwind state that is polluting a downwind state is free of any obligations under the Good Neighbor provision unless and until EPA has quantified the upwind state’s contribution to downwind states’ air pollution problems.  

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Facts

In passing the Clean Air Act, Congress empowered the Environmental Protection Agency (EPA) to set National Ambient Air Quality Standards (NAAQS), the maximum permissible levels of common pollutants released into the air.  See EME Homer City Generation v. EPA, 696 F.3d 7, 12 (D.C. Cir. 2012).

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