A California court has held that an environmental review of a proposed Wal-Mart was inadequate under the California Environmental Quality Act, where the environmental review failed to properly analyze the project’s regional air pollution impacts, including the potential adverse impacts of greenhouse gas emissions. The case, Center for Biological Diversity v. Town of Yucca Valley (Cal. Sup. Ct. CIVSS800607, May 14, 2009), addresses an emerging issue facing many large-scale developments which are required to comply with state or federal environmental review laws. On the state level, the issue of evaluating climate change impacts has–until recently–been largely shaped by administrative guidance, state legislative action, and executive orders. The Yucca Valley decision will likely be among the first of many court decisions on this issue, as GHG impact analysis issues are litigated more frequently in coming months and years.
The United States Supreme Court recently issued its decision in Burlington Northern & Santa Fe Railway Co. et al. v. United States et al. (“Burlington“) a case which has received attention over the years for its potential to shed light on the apportionment of costs among potentially responsible parties (PRPs). Also before the Court were issues relating to arranger liability. On the arranger liability issue, the Court held 8-1 that Shell Oil Company was not liable as a CERCLA PRP because Shell had not “arranged for the disposal…of hazardous substances” within the meaning of Section 107(a)(3) of CERCLA. The Court held that Shell’s mere knowledge of continuing spills and leaks from a useful product that it sold and transported to a customer’s facility was insufficient grounds for concluding that the company had “arranged for” disposal of the product.
More significant, however, was the Court’s decision on apportionment, whereby PRPs may seek to avoid the potentially harsh consequences of joint and several liability for a CERCLA cleanup. The Court upheld the District Court’s central finding that the principal contamination that led to the response costs did not occur on the parcel owned by the railroad, which “contributed to no more than 10% of the total site contamination.” Accordingly, the Court held that joint and several liability was inappropriate in that circumstance. This holding may empower trial courts to render similar rulings in the future on appropriate facts. The Court in effect applied a pragmatic test for apportionment of CERCLA liability based on a reasonable, common sense application of the facts.
