EPA

Burlington Northern and Santa Fe Railway Company, et al. v. United States; Shell Oil Co. v. United States

Issues

Under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), whether a manufacturer is liable for spilling or leaking a hazardous substance while delivering that substance to a purchaser.

Under CERCLA, when may a court impose joint and several liability, and when may it, instead, reasonably apportion liability among responsible parties?

 

Throughout the 60's and 70's, a now-defunct company called Brown & Bryant stored agricultural chemical products manufactured by Shell Oil Company on parcels of land owned by Brown & Bryant, Burlington Northern & Santa Fe Railway Company, and Union Pacific Transportation Company. The storage and handling of these chemicals led to leaks, and eventually a cleanup effort headed by California's Department of Toxic Substances Control ("DTSC") and the Environmental Protection Agency ("EPA").  After Brown and & Bryant had ceased to exist, the EPA and DTSC sued the railways and Shell under The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") to recover the costs of the cleanup. The United States District Court for the Eastern District of California found the railways liable because they owned the land on which hazardous materials were stored and processed, and Shell liable for arranging the disposal of the materials. The District Court found the railways liable for 9% of the costs of cleanup and Shell liable for 6%.  The EPA and the DTSC appealed, and the Ninth Circuit reversed the lower court's apportionment of liability, finding that liability should be joint and several. The Ninth Circuit also upheld Shell's liability as the "arranger" of the disposal hazardous substances. In reviewing this case, the Supreme Court will decide whether joint and several liability may be imposed upon several parties under CERCLA even where a district court finds an objectively reasonable basis for dividing the cost of cleanup. The Supreme Court will also decide what constitutes "arranger" liability under CERCLA.

 

     

Questions as Framed for the Court by the Parties

Burlington No. & Santa Fe R. Co. v. United States (07-1601)

The Comprehensive, Environmental, Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., allows the government to obtain reimbursement for the costs of remediating hazardous waste sites from the owners and operators of land on which a disposal of hazardous substances has occurred. Because even passive landowners may be subjected to CERCLA liability, Congress removed language from early CERCLA bills mandating joint and several liability for multiple defendants who own or operate a particular site. In the present case, the Ninth Circuit nevertheless imposed joint and several liability for the entire cost of a facility's remediation on two landlords, even though they owned only a portion of the overall site for a fraction of its period of operation, and the parcel they owned required no remediation.

The question presented is:

Whether the Ninth Circuit erred by reversing the district court's reasonable apportionment of responsibility under CERCLA, and by adopting a standard of review and proof requirements that depart from common law principles and conflict with decisions of other circuits.

Shell Oil Co. v. United States (07-1607)

1. Whether liability for "arranging" for disposal of hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"),  42 U.S.C. § 9607(a)(3), may be imposed upon a manufacturer who merely sells and ships, by common carrier, a commercially useful product, transferring ownership and control to a purchaser who then causes contamination involving that product.

2. Whether joint and several liability may be imposed upon several potentially responsible parties under CERCLA, 42 U.S.C. § 9607(a), even where a district court finds an objectively reasonable basis for divisibility that would suffice at common law.

In 1960, Brown & Bryant, Inc. ("B&B"), a now-defunct company, owned and operated an agricultural chemical storage and distribution facility located in Arvin, California on a 3.8-acre parcel of land.  See United States v. Burlington North & Santa Fe Railway. Co., 502 F.3d 781, at 790 (9th Cir.

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Guam v. United States

Issues

Can a settlement that is not under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) or a settlement that does not explicitly resolve a party’s liability trigger a contribution claim under CERCLA Section 113(f)(3)(B)?

This case asks the Supreme Court to determine how two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) allocate responsibility for cleaning up environmental sites. CERCLA Section 107 allows a party to recover direct costs of cleaning up a site from responsible parties, while Section 113 allows a party who has already settled its own responsibility to recover “contribution” from other responsible parties. The territory of Guam, which owns a toxic waste dump, sued the United States to help fund the dump cleanup under both Sections 107 and 113. However, the lower court found that the availability of Section 113 barred Guam’s Section 107 claim based on a previous settlement between Guam and the federal government unrelated to CERCLA. Petitioner Guam argues that a settlement that does not mention CERCLA and disclaims any liability determination cannot force a party to bring a Section 113 claim instead of a Section 107 claim. Respondent United States counters that Section 113 broadly encompasses settlements that resolve liability under other laws besides CERCLA. This case has implications for prompt cleanups of environmental hazards across the United States.

Questions as Framed for the Court by the Parties

(1) Whether a settlement that is not under the Comprehensive Environmental Response, Compensation, and Liability Act can trigger a contribution claim under CERCLA Section 113(f)(3)(B); and
(2) whether a settlement that expressly disclaims any liability determination and leaves the settling party exposed to future liability can trigger a contribution claim under CERCLA Section 113(f)(3)(B).

In the 1940s, the United States Navy constructed a landfill, the Ordot Dump, on the island of Guam. Gov’t of Guam v. United States at 106–07.

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Michigan v. Environmental Protection Agency; Utility Air Regulatory Group v. Environmental Protection Agency; National Mining Association v. Environment Protection Agency

Issues

Is the EPA required to consider costs when determining whether it is appropriate and necessary to regulate hazardous air pollutants emitted by electric utilities?

 

The United States Supreme Court will consider whether the EPA acted reasonably based on the agency’s interpretation of its obligations under the Clean Air Act when it did not consider the costs, during rulemaking, of regulating the emissions of hazardous air pollutants from oil- and coal-fired electric utilities. The Petitioners argue that because the EPA did not consider  cost  of compliance as a factor in its decision, the EPA’s rule is an incorrect interpretation of the Clean Air Act and is unreasonable. The Respondents counter that the EPA acted reasonably and correctly interpreted the Clean Air Act by not considering  cost  of compliance as a factor in its decision to regulate hazardous air pollutants from electric utility plants. The Court’s decision will implicate the regulation of hazardous air pollutant emissions from electric  utilities,  and may have broader implications for the statutory interpretation of similar regulatory mandates to agencies.

Questions as Framed for the Court by the Parties

The Clean Air Act treats electric utilities differently from other sources of hazardous air pollutants. Other sources are required to limit their emissions if they exceed quantitative thresholds. 42 U.S.C. § 7412(c)(1) & (d)(1). By contrast, before EPA regulates hazardous air pollutants from electric utilities, it must first conduct a study of the hazards to public health resulting from those emissions even after imposition of all the other requirements of the Clean Air Act, and then decide whether it is "appropriate and necessary" to regulate such residual emissions under § 7412 after considering the results of the study. 42 U.S.C. § 7412(n)(1)(A).

The question for the Court is:

Whether EPA's interpretation of "appropriate" in 42 U.S.C. § 7412(n)(1)(A) is unreasonable because it refused to consider a key factor (costs) when determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

THE SUPREME COURT GRANTED CERT LIMITED TO THE FOLLOWING: Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

Congress enacted the Clean Air Act (“CAA”) in 1970, including what is now § 7412, to address issue of air pollution, focusing on reducing hazardous air pollutants (“HAPs”). See White Stallion Energy Center, LLC v.

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Utility Air Regulatory Group v. EPA, American Chemistry Council v. EPA, Energy-Intensive Manufacturers v. EPA, Southeastern Legal Foundation v. EPA, Texas v. EPA, Chamber of Comm. v. EPA (Consolidated)

Issues

Does the Environmental Protection Agency have authority under the Clean Air Act to regulate stationary sources of greenhouse gas emissions?

 

Following the Supreme Court’s 2007 decision in Massachusetts v. EPA, the EPA began regulating greenhouse gas emissions from mobile sources, such as cars and trucks. The categorization of greenhouse gases an an “air pollutant” under the Clean Air Act automatically triggered the regulation of stationary sources, such as factories, through the EPA’s Prevention of Significant Deterioration and Title V permit programs. However, because the new regulatory framework easily triggered EPA oversight for low levels of emissions, the EPA decided to increase the threshold emissions level for greenhouse gases. Petitioners, including various states and industry groups, assert that the EPA’s regulation of greenhouse gas emissions from stationary sources expands the scope of the Act beyond Congress’s original intent. Accordingly, Petitioners argue that the EPA lacks authority for this regulation. The EPA responds that because greenhouse gases are plainly air pollutants, the agency has the statutory authority to regulate them. Moreover, the EPA contends that this reading of the Act conforms with Congress’s intent to give the EPA broad discretion in regulating air pollution to protect public health and welfare. The Supreme Court’s determination of whether the EPA may continue to regulate greenhouse gases under these programs will significantly impact the United States’ approach to climate change.

Questions as Framed for the Court by the Parties

After this Court decided Massachusetts v. EPA, 549 U.S. 497 (2007), the Environmental Protection Agency (EPA) found that its promulgation of motor vehicle greenhouse gas (GHG) emission standards under Title II of the Clean Air Act (CAA), 42 U.S.C. § 7521(a)(1), compelled regulation of carbon dioxide and other GHGs under the CAA's Title I prevention of significant deterioration (PSD) and Title V stationary-source permitting programs. Even though EPA determined that including GHGs in these programs would vastly expand the programs contrary to Congress's intent, EPA adopted rules adding GHGs to the pollutants covered. The panel below held the CAA and Massachusetts compelled inclusion of GHGs and, based on that holding, dismissed all petitions to review the GHG permitting program rules on standing grounds. The questions presented are: 

  1. Whether Massachusetts compelled EPA to in-clude GHGs in the PSD and Title V programs when inclusion of GHGs would (i) transform the size and scope of these programs into something that EPA found would be "unrecognizable to ... Congress," Petition Appendix 345a, 380a, and (ii) expand the PSD program to cover a substance that does not deteriorate the quality of the air that people breathe. 
  2. Whether dismissal of the petitions to review EPA's GHG permit-program rules was inconsistent with this Court's standing jurisprudence where the panel premised its holding that standing was absent on its merits holding that GHGs are regulated "pursuant to automatic operation of the CAA." Id. at 96a.

After the Supreme Court’s decision in Massachusetts v.

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