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February 21, 2014

U.S. Supreme Court To Hear Argument Over EPA’s Greenhouse Gas Regulations for Stationary Sources

By: Dan Mach — Filed under: Climate Change Law, Supreme Court — Posted at 6:46 pm

On Monday, the U.S. Supreme Court will hear argument in six consolidated challenges to the Environmental Protection Agency’s (“EPA’s”) decision to regulate emissions of greenhouse gases (“GHGs”) from stationary sources under certain provisions of the Clean Air Act (the “CAA”). The cases come from the D.C. Circuit Court of Appeals, which dismissed the challenges in 2012 on the ground that the petitioners lacked standing.

Monday’s argument presents a narrow question: whether EPA’s existing regulation of GHG emissions from motor vehicles triggered statutory permitting requirements that would apply to stationary sources. The CAA’s Prevention of Significant Deterioration (“PSD”) provisions require any facility that annually emits more than either 100 or 250 tons (depending on the type of facility) of “any air pollutant” to obtain an emissions permit. In its “Timing Rule,” EPA determined that its existing GHGs emissions standards for motor vehicles render such emissions “air pollutants” within the meaning of the statute, thereby triggering the PSD permit requirement. However, in its “Tailoring Rule,” EPA announced that it would initially require PSD permits only for very large sources of GHGs, rather than apply the statute’s low 100/250 ton threshold.

EPA’s interpretation raises two questions. The first is whether, as Judge Kavanaugh of the D.C. Circuit has argued in a dissenting opinion, the CAA requires PSD permits only for facilities that emit those “air pollutants” for which EPA has issued ambient air quality standards—a category that does not include GHGs. The second is whether EPA’s decision to raise the threshold of GHG emissions above which PSD permits are required was a permissible application of the statute.

This is the third time in seven years that the Court has considered the scope of EPA’s authority to regulate GHGs under the Clean Air Act. In its 2007 decision in Massachusetts v. EPA, the Court held that GHGs are unambiguously “air pollutants” potentially subject to regulation under Title II of the Act, which governs emissions standards for mobile sources. Following Massachusetts, EPA issued formal findings that motor vehicle emissions “cause or contribute” to GHG pollution that “endangers” public health and welfare—leading to its promulgation, under Title II, of fleet-wide average fuel efficiency standards for cars and trucks.  EPA’s endangerment finding was upheld by the D.C. Circuit, and the Supreme Court declined to grant petitions seeking review of that part of the appellate court’s decision.

In its 2011 decision in American Electric Power Company v. Connecticut, the Court acknowledged EPA’s authority to regulate GHGs from stationary sources as well. There, the Court held that the claim that GHG emissions from fossil-fuel fired power plants constituted a public nuisance under federal common law was “displaced”—that is, rendered legally obsolete—by “the Clean Air Act and the EPA actions it authorizes,” specifically noting, as an example, that EPA was then engaged in “rulemaking to set standards for greenhouse gas emissions from fossil-fuel fired power plants” under the CAA’s New Source Performance Standards provisions.

Given the narrow issue on which the Court granted review, it is unlikely that the outcome of the cases to be argued Monday will disturb EPA’s now well-established authority to regulate GHG emissions in general. It may, however, alter the specific ways in which EPA may exercise that authority with respect to stationary sources.

For more information on the Supreme Court proceedings or greenhouse gas regulation, contact Jeffrey Gracer.



June 26, 2013

Supreme Court Strikes A Blow For Property Rights

By: Steven Barshov — Filed under: Land Use & Development, Supreme Court — Posted at 9:21 am

On June 25, 2013, the United States Supreme Court in Koontz v. St. Johns River Water Management District clarified and limited the power of a local governmental agency to deny a land use permit unless the applicant agreed to make a monetary payment or expenditure.  The Supreme Court ruled 5-4 that such a required expenditure would trigger heightened constitutional scrutiny under both the “essential nexus” test enunciated in Nollan v. California Coastal Commission and the “rough proportionality” test enunciated in Dolan v. City of Tigard.  The majority opinion, written by Justice Alito and joined by Chief Justice Roberts and Justices Scalia, Thomas and Kennedy, found no significant constitutional difference between a local government requiring a property owner to relinquish a property right as a condition of receiving a land use approval, such as the beach access easement at issue in Nollan or the property donation at issue in Dolan, and a local government denying a land use approval unless the applicant agreed to expend funds.

Koontz was a property owner who applied for permits to develop Florida land containing wetlands.  Koontz offered to permanently preserve approximately three-quarters of his roughly 15 acres by conservation easement and to develop the remaining quarter.  The St. Johns River Water Management District declined to approve Koontz’s proposal and stated instead that it would approve either a 1 acre development and 13.9 acre conservation easement or Koontz’s plan, so long as he also agreed to pay to replace culverts on one off-site parcel or fill in ditches on another, either which would have enhanced approximately 50 acres of District-owned wetlands.   Koontz refused to accede and the Management District denied the application.  Koontz sued, claiming that the District’s required off-site wetlands mitigation was grossly disproportionate to the actual environmental impacts of his proposed project.

The Supreme Court did not decide whether the specific wetland mitigation required by the Management District was constitutional.  Rather, the  Court clarified the tests that should be applied and did so over a vigorous dissent by Justice Kagan, which was joined by Justices Ginsberg, Breyer, and Sotomayor.

In recent years, off-site project mitigation has been utilized increasingly by local governments, especially as budgets for infrastructure tighten.  Project applicants and municipalities now are on notice that the administrative record for a land use approval or denial, often principally an environmental impact statement and its associated findings, must contain sufficient evidence to confirm that the required expenditure can be sustained under the essential nexus and rough proportionality tests.  For further information, contact Steven Barshov, SPR’s senior land use counsel.



April 1, 2013

Supreme Court Allows EPA to Forego Clean Water Act Permits for Logging Roads, Deferring to Agency Interpretation of Its Own Rules

By: Ed Roggenkamp — Filed under: Administrative Law, Citizen Suits, Clean Water Act, Supreme Court — Posted at 1:47 pm

On March 20, 2013, the Supreme Court upheld the Environmental Protection Agency’s (“EPA”) exclusion of ditches, channels, culverts, and other stormwater conveyances associated with logging roads from permitting requirements under the National Pollutant Discharge Elimination System (“NPDES”) program established by the Clean Water Act (“CWA”).  The eight-justice majority deferred to EPA’s interpretation of two CWA regulations, although a dissent by Justice Antonin Scalia argued such deference was misplaced and that the conveyances should have been regulated as “point sources” under the Clean Water Act.

The case arose when Northwest Environmental Defense Center (“NEDC”) sued several timber companies and state and local government officials, arguing that discharges of pollutants through stormwater conveyances associated with logging roads were discharges through point sources that required NPDES permits.  The defendants  – and EPA – argued that the conveyances were in fact exempted from the broad definition of “point source” under their interpretation of two federal regulations.  One of those regulations, the Silvicultural Rule, 40 C.F.R. § 122.27(b)(1), defined certain types of conveyances associated with logging and other timber operations as “silvicultural point sources” and excluded others.  The other regulation, known as the Industrial Stormwater Rule, 40 C.F.R. § 122.26(b)(14), fleshed out the nexus of two provisions of the CWA: section 1342(p)(1), which exempted discharges “composed entirely of stormwater” from CWA permitting requirements, and section 1342(p)(2)(B), which required NPDES permits for stormwater discharges “associated with industrial activity.”

NEDC argued that stormwater conveyances associated with logging roads were not excluded from the definition of silvicultural point sources under the Silvicultural Rule, and that the Industrial Stormwater Rule – which included “logging” under a list of industrial activities – could only be interpreted to mean that stormwater associated with logging roads was in fact stormwater associated with industrial activity, and thus required a NPDES permit. The trial court agreed with the defendants, but the Court of Appeals for the Ninth Circuit reversed, holding that the stormwater conveyances were in fact point sources discharging stormwater associated with industrial activity and that EPA’s regulations governing the issue were unambiguous – that is, they could not be interpreted in any manner other than the one the Ninth Circuit (and NEDC) chose.  This last part of the Ninth Circuit’s holding was of particular importance, as two Supreme Court cases – Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) – have created a rule that courts will defer to an agency’s interpretation of its own regulations, so long as the interpretation is not plainly erroneous or inconsistent with the regulation itself.  This principle, known as “Auer deference”, is binding upon the courts; hence if EPA’s Silvicultural Rule and Industrial Stormwater Rule were ambiguous, and EPA’s interpretation of those rules was not plainly erroneous or inconsistent with the regulations themselves, the Ninth Circuit would be obligated to defer to EPA’s interpretation and rule against NEDC.

The Supreme Court reversed the Ninth Circuit and applied Auer deference: it found that EPA’s regulations were ambiguous, the agency’s interpretation of those regulations was plausible, and that therefore the courts should defer to the agency and hold that discharges from logging roads did not need NPDES permits.  In fact, the Court did not even consider for itself the issue of whether the stormwater conveyances associated with logging roads were point sources under the CWA or EPA’s implementing regulations – this despite the fact that the Court at one point said that it found NEDC’s interpretation of EPA’s rules “more plausible” than EPA’s.

A lone dissent by Justice Scalia argued – as the Ninth Circuit had – that NEDC’s interpretation of the rule was in fact the only plausible interpretation, and that the majority’s ruling suggests that it is time to reconsider whether Auer deference is an appropriate rule of law.  Chief Justice Roberts wrote a concurring opinion, joined by Justice Alito, suggesting that the Court might revisit Auer deference in the future, but that it would wait for a case in which the issue was clearly presented.

The Supreme Court’s decision in Decker has important implications, not only for the question of whether stormwater discharges require NPDES permits, but for interpretation of environmental regulations more generally; for the foreseeable future, it will remain difficult to challenge an agency’s interpretation of its own regulations.

For more information on stormwater permitting issues, please contact Michael Bogin.



June 26, 2012

Supreme Court Rules that Jury Must Determine Facts Leading to Criminal Fines in RCRA Case

By: Ed Roggenkamp — Filed under: RCRA, Supreme Court — Posted at 12:20 pm

On June 21, 2012, the Supreme Court ruled in Southern Union Co. v. United States that the Sixth Amendment’s guarantee of a jury trial – and the corresponding requirement that a jury must decide, beyond a reasonable doubt, all facts leading to criminal liability – applies to criminal fines under RCRA. Because the ruling applies broadly to all criminal fines, it may affect criminal enforcement of other federal and state environmental laws as well.

Southern Union had been convicted by a jury of one count of violating RCRA by knowingly storing liquid mercury without a permit.  Violations of RCRA are punishable by fines of up to $50,000 per day of violation.  The jury’s verdict form stated that Southern Union had unlawfully stored mercury “on or about September 19, 2002 to October 19, 2004” – a period of 762 days – but the jury was not asked to specify the number of days of violation and did not do so.  Hence Southern Union argued that the jury had only necessarily found them guilty of one day’s violation, and that increasing the fine above $50,000 would therefore violate a previous Supreme Court decision, Apprendi v. New Jersey, which held that the Sixth Amendment right to a jury trial in criminal cases prohibits a judge from deciding facts that increase a criminal defendant’s maximum potential sentence.

The rule of Apprendi had generally been applied to prison sentences, but courts had reached differing decisions on whether it applied to criminal fines.  The trial court in Southern Union decided that Apprendi applied to criminal fines, but that the jury had effectively found a 762-day violation.  It calculated the maximum fine for that violation at $38.1 million, and imposed a $6 million fine and a “community service obligation” of $12 million.  The appeals court affirmed the amount of the verdict, but held that Apprendi did not apply to criminal fines.

The Supreme Court reversed, holding that Apprendi applies to criminal fines. Since the jury’s verdict did not specify the number of days of violation, the verdict was limited to a single violation, with a maximum penalty of $50,000.  Justices Breyer, Kennedy and Alito dissented from the Court’s decision.   

This ruling has potentially broad implications for criminal prosecution of environmental violations, since several other environmental statutes – including the Clean Water Act, the Toxic Substances Control Act, and numerous provisions of the New York Environmental Conservation Law – include criminal fines that are keyed to the number of days of violation.  Any prosecution under those statutes will now require that the jury decide, beyond a reasonable doubt, the number days of violation committed by the defendant.  Those statutes also provide for civil penalties, including daily fines, which are not covered by the 6th Amendment or affected by the Supreme Court’s ruling.

For further information, contact Dan Riesel or Michael Lesser.



March 22, 2012

Supreme Court expands judicial review over EPA compliance orders

In a unanimous decision that could herald major changes in federal and state environmental enforcement, yesterday the Supreme Court upheld a property owner’s right to challenge the basis for a Clean Water Act compliance order alleging unlawful filling of wetlands, before the Environmental Protection Agency (“EPA”) had filed suit to enforce it.  Previously, EPA and every Circuit Court to consider the issue had denied pre-enforcement review of such orders, requiring landowners to apply for a fill permit in order to challenge EPA’s assertion of jurisdiction or risk substantial penalties for violating EPA’s directives.

The significance of the Supreme Court’s ruling in Sackett v. EPA is likely to extend beyond the Clean Water Act, however, as administrative agencies frequently issue interim decisions – similar to the EPA’s compliance order in Sackett – while claiming that such actions are either non-final or statutorily precluded from pre-enforcement review.  Writing for the Court, Justice Scalia found that the order “has all the hallmarks of … finality” and “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review — even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”  Similar reasoning could apply to other federal environmental statutes as well, aside from the federal Superfund law which is “uniquely designed” in its express preclusion of certain pre-enforcement review.

Sackett arose out of an Idaho couple’s filling of part of a residential lot, which the EPA later determined to be regulated wetlands.  EPA issued a compliance order directing the landowners to remove the fill and implement a Restoration Work Plan, and threatening penalties of up to $75,000 per day of non-compliance.

The landowners sued, arguing that EPA had incorrectly classified their property as a wetland and its compliance order was arbitrary and capricious as a result.  Both the District Court and the 9th Circuit Court of Appeals dismissed their challenge for lack of jurisdiction, holding that the Clean Water Act precluded pre-enforcement review of compliance orders, and that such limitation did not violate the Due Process Clause because the landowners could still apply for a wetlands fill permit from the U.S. Army Corps of Engineers (“Army Corps”) or ignore the order and challenge EPA’s wetlands determination in defense of an EPA civil enforcement action.  

The Supreme Court reversed.  As a threshold matter, the Court ruled that the compliance order was “final agency action” subject to challenge under the Administrative Procedure Act (“APA”), because it determined the landowners’ legal obligations and marked EPA’s final determination as to the scope of its jurisdiction.  The Court rejected the argument that the landowners were required to apply for and challenge the denial of a wetlands fill permit, instead holding: “The remedy for denial of action that might be sought from one agency does not ordinarily provide an ‘adequate remedy’ for action already taken by another agency.”

Finally, the Court found that the Clean Water Act does not limit the courts’ pre-enforcement jurisdiction, finding no evidence in the statutory text or legislative history to overcome the APA presumption of judicial review.  It thus did not determine whether denial of review would have violated the landowners’ Due Process rights, but a concurrence from Justice Alito suggests that he would have upheld the Sacketts’ constitutional argument that without the opportunity for judicial review they would have been deprived of property rights without due process.    

In addition to the compliance orders at issue in Sackett, the Supreme Court’s reasoning may expand judicial review over a broad range of interim administrative decisions.  For instance, federal and state agencies often issue “jurisdictional determinations” defining the boundaries of regulated wetlands, limiting the use of such property where no alleged violation has yet occurred.  Future litigation will likely determine whether such determinations can be challenged under the APA and its state counterparts, as well as whether Clean Air Act Administrative Compliance Orders – which EPA has historically interpreted as not subject to pre-enforcement review – are affected by the Supreme Court’s ruling.

For more information on the Sackett decision and judicial review of agency actions, contact Daniel Riesel.



June 20, 2011

Supreme Court Rejects States’ Federal Common Law Climate Change Lawsuit

Dealing a blow to climate change tort litigants, the Supreme Court ruled 8-0 on June 20, 2011 that Congressional authorization of greenhouse gas (“GHG”) limits has displaced federal common law suits seeking GHG reductions.  The Court’s decision in American Electric Power v. Connecticut reversed the Second Circuit Court of Appeals’ ruling that allowed a group of states, cities and land trusts – including New York State and New York City – to pursue federal public nuisance claims against the nation’s largest electric utility GHG emitters.

Justice Sotomayor, who sat on the Second Circuit panel that initially heard the case, recused herself from the Supreme Court’s deliberations.   Although the ruling on displacement of federal common law claims was unanimous, the remaining justices were equally divided over whether federal jurisdiction even existed.  Four members of the Court (presumably Justices Alito, Roberts, Thomas and Scalia) would have barred the suit on standing or other jurisdictional grounds, while four others (presumably Justices Kagan, Breyer, Ginsburg and Kennedy) affirmed plaintiffs’ standing.  (Slip. Op. at 6.)  This split – which upholds the Second Circuit’s finding of the plaintiffs’ standing – dates back to the Supreme Court’s 2007 climate change decision, Massachusetts v. EPA, where by a 5-4 margin the Court affirmed the state petitioners’ standing and upheld EPA authority to regulate GHGs under the Clean Air Act.

Justice Ginsburg – part of the five-member majority in Massachusetts v. EPA – authored the latest climate decision.  Without deciding whether federal common law could redress GHG-related claims in the absence of Congressional action, she wrote that “any such claim [in this case] would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.” (Slip. Op. at 9.)  Rejecting the states’ argument that displacement should not apply until EPA actually regulated the sources in question, which it has yet to do, Ginsburg answered: “The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law.”  (Slip. Op. at 12.)

The Supreme Court decision does not necessarily foreclose all future climate change tort suits.  The Court did not determine whether federal law has preempted state common law remedies, as this issue was not decided below or briefed before the Supreme Court.  (Slip. Op. at 15-16.)  That issue was left open for consideration on remand.  Moreover, the Court’s displacement-based decision could be revisited should Congress withdraw or otherwise interfere with EPA’s existing climate change authority, as several opponents of EPA regulation have proposed in recent years. 

On Thursday, June 30th, the New York City Bar Association’s Environmental Law Committee and International Environmental Law Committee, the Environmental Law Institute, and the Center for Climate Change Law at Columbia Law School are sponsoring a debate on the Supreme Court’s decision at 6:00 p.m. in the Great Hall of the New York City Bar Association.  Event information and registration are currently available online.



December 6, 2010

Supreme Court Grants Review in Key Climate Change Lawsuit

By: Jonathan Kalmuss-Katz — Filed under: Climate Change Law, Constitutional Issues, Supreme Court — Posted at 1:36 pm

On December 6, the Supreme Court granted review of the climate tort suit Connecticut v. American Electric Power (“AEP”), setting the stage for a major decision on the availability of common law remedies for climate-related harms.

Justice Sonia Sotomayor, who presided over oral arguments in the case while a judge on the Second Circuit, did not participate in the Supreme Court’s consideration of the petition for review.  Justice Sotomayor is expected to recuse herself when the case comes before the Court.

The case arises out of a 2004 suit filed by eight states (including New York), three land trusts and New York City against five electric utilities and one of their subsidiaries, alleged to be the “five largest emitters of carbon dioxide in the United States.”  The plaintiffs claimed that the power companies’ greenhouse gas (GHG) emissions constituted a public nuisance under federal common law and the common law of 20 states where the defendants operated power plants, and sought an injunction requiring “each defendant to … cap its carbon dioxide emissions and then reduce them by a specified percentage each year ….”

In 2005, United States District Judge Loretta A. Preska dismissed the suit under the political question doctrine, reasoning that the policy determinations required to set and implement a GHG emissions cap were of the type reserved for Congress and the President.  Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 272 (S.D.N.Y. 2005), vacated and remanded 582 F.3d 309 (2d Cir. 2009).  In a footnote, the Court withheld judgment on whether the plaintiffs would have been able to establish standing to bring their suit.  Id. at 271, n. 6.

The Second Circuit heard an appeal from the dismissal order in 2006, with then-Circuit Court Sotomayor sitting on the three-judge panel.  Following a three-year delay and Sotomayor’s nomination to the Supreme Court, the remaining two judges reversed the District Court and remanded the case for further consideration, ruling that: (a) the suit was not barred by the political question doctrine, (b) the plaintiffs had standing to litigate the dispute, and (c) the common law claims had been not been displaced by EPA’s then-unfinalized proposals to regulate GHGs under the Clean Air Act.  Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009).

The defendants petitioned for Supreme Court review of the Second Circuit decision last August.  In a move that took many by surprise, the Obama Administration filed a brief in support of the utilities’ petition, arguing that the plaintiffs lacked “prudential standing” and that the finalization of the EPA climate regulations which were pending at the time of the Second Circuit decision had displaced the federal common law relief sought by the states.

The Supreme Court’s decision could set key precedent for other pending climate tort suits and for environmental litigation more broadly.  The standing doctrine – which requires litigants to establish a particularized injury caused by the opposing party and redressable by judicial action – is often highly contested in environmental cases, especially those involving harms like global warming which have broad impacts and multiple causes.  While the Supreme Court found that a similar set of state plaintiffs met the constitution’s standing requirements in its 2007 climate change decision Massachusetts v. EPA, a rejection of the current suit on “prudential standing” grounds could give lower courts broad discretion to dismiss pending and future climate litigation.  If Justice Sotomayor recuses herself, the Court may end up deadlocked between the four Massachusetts v. EPA dissenters and the four remaining justices, a split which would leave the Second Circuit decision on the books but would not set binding precedent for other courts.

The Supreme Court could also conclude that EPA climate regulations finalized since the Second Circuit decision have displaced the common law remedies sought by the plaintiffs.  Many of those regulations are currently facing their own legal challenges, however, creating the possibility that the rules central to this displacement argument could themselves be overturned.

Oral arguments and a decision in the Connecticut v. AEP case are expected over the coming year.  For more information on pending global warming litigation and EPA’s climate rules, please contact Jeffrey Gracer.



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