1. Chevron, U. S. A., Inc v. Natural Resources Defense Council



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Environmental Law Briefs Printed: 3/13/18

1. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, (1984); pg. 128, briefed 9/5/96
2. Facts: In the Clean Air Act Amendments of 1977, Congress enacted certain requirements applicable to states that had not acheived compliance with national air quality standards established by the EPA. One of these amendments required the non-attainment states to regulate “new or modified major stationary sources” of air pollution. To this end, the EPA enacted a regulation which allowed a plantwide definition of “stationary source”, i.e. a “bubble” concept whereby a new emitter could be added to a plant as long as reductions in other areas of the plant resulted in no net increase in pollution.
3. Procedural Posture: Chevron was apparently sued by NRDC concerning additions made to a plant. The Court of Appeals decided that since Congress had not specified any clear intent in this area, that it was inconsistent with an air-pollution reducing statute to enact a regulation that allowed the pollution level to stay the same. Thus, the Court of Appeals set aside the EPA regulations.
4. Issue: Whether the EPA’s decision to allow States to treat all of the pollution-emitting devices within the same facility as a single “stationary source” is a reasonable construction of the statute.
5. Holding: Yes.
6. Reasoning: The standard of review is whether the agency enacting the regulation had a reasonable interpretation of the statute. Since Congress was not unambiguous in this area, the EPA had the power to interpret the statute. Given the statutory and regulatory history, it is clear that Congress intended to strike a balance between the competing policies of reduction of air pollution and modernization and industrial progress. Thus, although the term “stationary source” used to have two different meanings - one for pollution maintaining statutes, and one for pollution reducing statutes, it is clear that the EPA purposefully changed the definitions to be the same regardless of the application. Since Congress’ intent appears to be to give the regulatory agency broad power in this area, then the plantwide definition of the term “stationary source” is reasonable.

1. Calvert Cliffs Coordinating Committee v. U.S. Atomic Energy Comm., (1971); pg. 422 Supp., briefed 9/8/96
2. Facts: The Atomic Energy Commission (AEC) promulgated a set of rules which they contended brought them into compliance with the requirements of NEPA that an environmental impact statement (EIS) be prepared prior to the licensing of a new nuclear power plant. The rules provided that an “environmental report” would be prepared, upon which the AEC would draft its own “detailed statement”, and both would “accompany” the application for the new license throughout the review process. However, the report would not be considered by the licensing authority unless environmental issues were raised by a party to the proceeding.
3. Procedural Posture: CCCC sued claiming that AEC’s rules did not comply with the NEPA requirement that the environmental impact of their actions be considered “to the fullest extent possible.”
4. Issue: Whether the EIS must be considered by the ultimate licensing authority.
5. Holding: Yes.
6. Reasoning: The EIS procedure is a mechanism to ensure compliance with the general requirements of NEPA. The EIS procedure must be complied with to the fullest extent possible - a high standard which is enforceable by the court. Although the courts probably may not reverse a substantive decision which considered the EIS unless it was arbitrary, failing to consider a good faith EIS is reversible. Merely having the EIS physically “accompany” the license application is an unreasonable interpretation of the NEPA requirements. The word “accompany” in section 102 must be interpreted to mean that the environmental factors be considered at every important stage in the decision making process.

1. Strycker’s Bay Neighborhood Council, Inc. v. Karlen, (1980); pg. 847, briefed 9/8/96
2. Facts: The HUD planned to build some lower income housing on a lot in N.Y. city.
3. Procedural Posture: A local organization (Trinity School) sued to enjoin the construction. The District Court held that HUD had not violated NEPA. On appeal, the court affirmed, holding that HUD did not have prepare a full EIS under 102(2)(C), but that they still had to consider alternatives under 102(2)(E), and remanded the case for HUD to conduct further study. The HUD study concluded that the unacceptable 2-year delay in finding a new site outweighed any adverse social environmental impact (i.e. the racial and economic problems associated with concentration of low-income housing in a single high-rise building). The District Court found that HUD’s conclusion was neither arbitrary nor capricious, and done in good faith. The court of appeals vacated and remanded again, holding that mere “consideration” of the environmental impact is insufficient under NEPA, and that the 2-year delay should have been given less weight.
4. Issue: Whether the court may make a substantive review of a decision to go ahead with a project given that they have considered the environmental impact.
5. Holding: No.
6. Reasoning: In Vermont Yankee, the court held that NEPA imposes duties on agencies which are “essentially procedural”, and that NEPA was designed to insure a fully informed and well considered decision, but not necessarily one which the members of the courts would have reached on the same facts. Thus, the court of appeals was wrong in requiring that the HUD elevate environmental considerations over schedule considerations. NEPA requires nothing more than the agency fully considers the environmental consequences of its proposed decisions.
7. Dissent: [Marshall] Vermont Yankee is being read too broadly here, and out of context. This is not the type of case for summary disposition. There should at least be a plenary hearing.
8. Notes: 1. Strycker’s Bay is generally believed to stand for the proposition that a court may not find an agency decision arbitrary and capricious on the merits because the agency relied on a totally unsatisfactory impact statement. 2. However, in Sierra Club v. Corps of Engineers II, the court held that the EIS was inadequate because it failed to reveal that the proposed landfill area was an important winter habitat for juvenile striped bass. When the Corps of Engineers prepared a new report, and decided to proceed with the landfill anyway, the court found that the decision was “arbitrary and capricious” because the reasons for giving the permit did not “reasonably connect the data found by the federal defendants to the choice they made.” 3. Separation of powers considerations prevent the judiciary from performing a rigorous substantive review if the EIS has been prepared, leaving them with the “arbitrary and capricious” standard of the Administrative Procedures Act (APA). 4. Although some commentators have claimed that EIS statments are typically self-serving, defensive efforts that prevent any real change in an agency’s behavior, other have stated that the EIS has at least some positive impact on agency activities, even if there are some procedural roadblocks.

1. Folmar v. Elliot Coal Mining Co., (1971); pg. 699, briefed 9/12/96
2. Facts: Residents of a coal mining area complained of air pollution from the neighboring coal cleaning factory. Over several years, the coal cleaning factory had installed many improvements to the equipment to improve the air pollution problem.
3. Procedural Posture: The residents sued under common law tort for trespass for air pollution. The case was tried to a judge who found for the defendant coal cleaning factory, mostly based on their promise to either stop using the thermodryer, or to install a wet scrubber.
4. Issue: Whether the trial court was correct in concluding that the invasion of the appellants’ properties was not unreasonable when the condition could have been cured by the installation of new equipment which had not, at the time of trial, been installed.
5. Holding: Yes.
6. Reasoning: The Restatement of Torts §822 governs this case. For a defendant to be liable, the invasion must be (1) substantial, and (2) intentional and unreasonable. An actor is unreasonable when the gravity of the harm outweighs the utility of his conduct. Here, the appellant has not proven when the addition of a wet scrubber would have been economically feasible, and thus had not shown that the lack of one at the time of trial was unreasonable. However, since the verdict was based on an expectation, it is not res judicata as to damages in the future should the scrubber not be installed. Also, since the action was for damages, equitable relief such as injunction was not available.

1. NRDC v. Train, (1976); pg. 174, briefed 9/17/96
2. Facts: Train is the Administrator of EPA. By §108 of the Clean Air Act, the Administrator is required to list air pollutants which: (a) in his judgment endanger the public health or welfare, (b) come from numerous or diverse sources, and (c) for which he plans to issue air quality criteria (ambient standards). This list is then used to generate National Ambient Air Quality Standards (NAAQS) for the states to implement. Lead was not listed in the §108 list.
3. Procedural Posture: The NRDC brought this action to compel Train to list lead as a pollutant under §108, arguing that once the Administrator has determined that a pollutant meets §108(a)(1)(A) and (B), that it must be listed. The Defense argued that it had the discretion whether to list it, interpreting §108(a)(1)(C) as a third criterion (i.e. whether he “plans” to issue criteria).
4. Issue: Whether the Administrator has the discretion whether or not to list lead as a pollutant under §108.
5. Holding: No.
6. Reasoning: The statute states that the Administrator “shall” list a pollutant if it meets the factual and judgmental criteria of §108(a)(1). The statute does not provide that the Administrator has the authority to determine whether the statutory remedies that are triggered by placing a pollutant on the list are appropriate. In response to the defense argument that §211 (regulation of vehicle lead emissions) is the proper remedy, the §211 remedies and the §108 remedies are not mutually exclusive or alternative. Furthermore, the unavailability of data does not prevent the Administrator from being required to list lead since it has already been determined to be dangerous to public health and to come from the requisite number of sources.
7. Notes: This case was brought under §304, enabling citizen suits to compel EPA actions. §304(f)(3) limits suits to violations of “conditions or requirements” of the Act. Thus, although citizens suits are authorized under §304 to compel to EPA to perform nondiscretionary acts, such as listing a pollutant, they are not generally authorized to compel compliance with a SIP. However, §307 provides procedures for all key regulatory decisions and their public and judicial review, and so many actions are brought under this mini-administrative act. In 1990, §304 was amended to allow for citizen suits for past violations, and to award civil damages, and not just injunctive relief.

1. Lead Industries Ass’n., Inc. v. EPA, (1980); pg. 190, briefed 9/24/96
2. Facts: The EPA issued ambient air quality standards for lead which were designed with a margin of safety in order to protect the most sensitive population, namely children.
3. Procedural Posture: The LIA sued, claiming that the Administrator had exceeded his authority under NEPA by promulgating an ambient air quality standard that went as far as to protect against health risks that were not “clearly harmful” to the public. Furthermore, they claimed that the Administrator must only protect against “clearly harmful” pollutant levels because of the economic dislocation that might be caused.
4. Issue: Whether the Administrator is prohibited from issuing ambient air quality standards at a level that is not “clearly harmful” to the public health.
5. Holding: No.
6. Reasoning: The “clearly harmful” standard is too narrow an interpretation of the statutory language of §109 mandate to protect the public health. The congressional intent as evidenced by the legislative history was a precautionary approach to prevent harm, not to require that there actually be harm. This is because many pollutants are not capable of being designated as “clearly harmful” given technological limitations on measurement. Furthermore, where Congress has required economics to be taken into account, it has expressly said so.

1. Union Electric Co. v. EPA, (1976); pg. 237, briefed 10/3/96
2. Facts: Missouri submitted a SIP to EPA to implement the NAAQS for sulfur dioxide. The plan was more stringent than the federal requirements. The EPA Administrator approved of the plan pursuant to §110(a)(2). Union Electric Co. operated a coal-fired power plant, and was unable to implement controls that could meet the Missouri requirements.
3. Procedural Posture: Union Electric brought an action, after the expiration of the 30 day appeal period, to oppose the Missouri SIP, claiming that it was technologically and economically infeasible to comply with the plan. Union asserted that the Administrator must take into account economic and technological feasibility in approving state implementation plans. The lower court found that it had no jurisdiction.
4. Issue: Whether the Administrator must or may take into account economic or technological infeasibility when approving state implementation plans.
5. Holding: No.
6. Reasoning: Section 110(a)(2)(A)’s three-year mandatory deadline for acheiving primary air quality standards is central to the regulatory scheme of the act. Both the language of the statute and the legislative history make clear that the three year deadline is intended to be technology forcing in nature, and not subject to delay by claims of technological or economic infeasibility. Furthermore, states may submit plans that are more stringent than federal law requires. The Administrator “shall” (must) approve such plans if they meet the minimum requirements of §110(a)(2). Thus, since none of the eight requirements in the statute mentions feasibility, then it may not be considered.

1. Citizens Against The Refinery’s Effects v. EPA, (1981); pg. 262, briefed 10/3/96
2. Facts: Hampton Roads Energy Co. applied for a permit to build an oil refinery in Portsmouth VA. Since Portsmouth was a non-attainment area for ozone, and the oil refinery was required to meet the non-attainment requirements for new sources. These included the 1977 amendment’s “offset” program whereby a new source could only be built if the amount of pollution it was going to emit was “offset” by a corresponding reduction in pollution by an existing source. The EPA passed guidelines that allowed offsets to come from a broad geographical area if the pollutant was hydrocarbons. Virginia submitted a SIP that included the permit for the new oil refinery, and also a corresponding offset in hydrocarbon emissions gained from the use of a water-based “emulsified” asphalt rather than the petroleum-based “cutback” asphalt currently used in three various highway districts.
3. Procedural Posture: The citizen’s group brought this action against the Adminstrator challenging his approval of the SIP, contending that the offset was not a real decrease in pollution because the highway districts were artificially developed and not near the new site, and that economic forces were already driving a reduction in the use of “cutback” asphalt anyway.
4. Issue: Whether the Administrator abused his discretion in the approval of the Virginia SIP.
5. Holding: No.
6. Reasoning: The agency action was not arbitrary or capricious. Congress intended that the states and the EPA be given flexibility in the implementation of the SIPs, and in the determination of the broad offset area, in order to encourage economic growth. Thus, a reduction in cutback asphalt use among a broad area is reasonable and well within the discretion and expertise of the agency. Furthermore, the reduction of the use of “cutback” asphalt was not previously enforceable, it was voluntary. Thus, by the Interpretive Ruling on the offset program which requires the offset be enforceable, the offset is real since there was no guarantee that the cutback asphalt would be reduced.

1. United States v. Riverside Bayview Homes, Inc. (1985); pg. 370, briefed 10/20/96
2. Facts: Bayview owns 80 acres of low-lying marshy lands near the shors of a Michigan lake. Bayview wished to develop the land, and proceeded to collect materials to do fill the land. The Army Corps of Engineers, believing the property was an “adjacent wetland” under the Clean Water Act, filed suit to enjoin the construction.
3. Procedural Posture: The lower court found that the definition of wetland in the statute should be interpreted narrowly to avoid a takings issue, and thus found for Bayview.
4. Issue: Whether the bayview property is an “adjacent wetland” within the meaning of the statute, and, if so, whether the Corps’ jurisdiction over “navigable waters” gives it statutory authority to regulate discharges or fill material into such a wetland.
5. Holding: Yes.
6. Reasoning: First of all, there is no taking, because a “permit” imples that the permission to use the land may be granted. The lower court was wrong to limit the definition of wetland to those land that are subject to frequent flooding, because the regulation clearly states that the test is whether there is sufficient saturation, even by ground water, to support wetland vegetation. The District Court found that the property was characterized by wetland vegetation, and that it was adjacent to a body of navigable water. Thus, it is part of the “waters of the United States” under the regulations. Furthermore, the regulations are a reasonable interpretation of the statute (the CWA) because the Corps has wide discretion in interpreting the statute as long as the interpretation is not in conflict with the expressed intent of Congress. Based on the legislative history and purpose of the statute, it is reasonable for the Corps to interpret the term “waters” to include adjacent wetlands, because the wetlands are part of the same hydrologic ecosystem.

1. Bersani v. Robichaud, (1988); pg. 514 supp., briefed 10/20/96
2. Facts: Pyramid wished to build a shopping mall on some wetlands that it purchased. The CWA requires that wetlands be developed only if there is no “practicable alternative”. An alternate site may have existed at the time that Pyramid bought the wetland site, but it was partially owned by another company at the time that Pyramid applied for the Permit to develop it.
3. Procedural Posture: The EPA vetoed the permit (after issuance by the Army Corps of Engineers), stating that a “practicable alternative” was available at the time that Pyramid “entered the market.” Pyramid sued EPA and EPA was granted summary judgment.
4. Issue: Whether the EPA interpretation of “practicable alternative” in the regulation is allowable.
5. Holding: Yes.
6. Majority Reasoning: The purpose of the act was to create an incentive for the developers to avoid choosing wetlands to develop. Pyramid’s reading of the statute to require an alternate site be available at the time of the permit application would defeat this purpose because it would remove the incentive at the time the incentive is needed. Conversely, in the case in which alternative sites were not available at the time of selection, but later became available, the developer’s application would be denied even though it could not have explored the alternative site. Even if the alternative site were already owned at the time that Pyramid entered the market, this does not necessarily mean that it was unavailable. Pyramid could have attempted to purchase it from the owner.
7. Dissent Reasoning: The “market entry” standard is vague and indefinite. Furthermore, it has the undesirable result that the first developer always would have an alternative site, but a second developer always would not. This would lead to trickery, using a second party buyer, to purchase the land and then sell it back to the first. Or worse yet, it would prevent the first developer from ever being entitled to develop the land if the second party were forbidden to sell it to them. The proper answer is for the EPA to make the decision based on the circumstances that exist at the time that the EPA is making the decision.

1. Folmar v. Elliot Coal Mining Co., (1971); pg. 699, briefed 10/22/96
2. Facts: Residents of a coal mining area complained of air pollution from the neighboring coal cleaning factory. Over several years, the coal cleaning factory had installed many improvements to the equipment to improve the air pollution problem.
3. Procedural Posture: The residents sued under common law tort for trespass for air pollution. The case was tried to a judge who found for the defendant coal cleaning factory, mostly based on their promise to either stop using the thermodryer, or to install a wet scrubber.
4. Issue: Whether the trial court was correct in concluding that the invasion of the appellants’ properties was not unreasonable when the condition could have been cured by the installation of new equipment which had not, at the time of trial, been installed.
5. Holding: Yes.
6. Reasoning: The Restatement of Torts §822 governs this case. For a defendant to be liable, the invasion must be (1) substantial, and (2) intentional and unreasonable. An actor is unreasonable when the gravity of the harm outweighs the utility of his conduct. Here, the appellant has not proven when the addition of a wet scrubber would have been economically feasible, and thus had not shown that the lack of one at the time of trial was unreasonable. However, since the verdict was based on an expectation, it is not res judicata as to damages in the future should the scrubber not be installed. Also, since the action was for damages, equitable relief such as injunction was not available.

1. Cities Service Co. v. State, (1975); pg. 701, briefed 10/22/96
2. Facts: Cities Service mines phosphates. In the mining operations, it is necessary and customary for the water used to be stored in settling pools behind earthen dams. One of the dams broke, releasing about one billion gallons of phosphate slime ladened water into an adjoining river, killing most of the wildlife.
3. Procedural Posture: The State of Florida sued Cities Service. Cities service appeals from the partial summary judgment as to liability.
4. Issue: Whether the law of strict liability for abnormally dangerous activities as applied to this case should result in partial summary judgment against Cities Service with respect to liability.
5. Holding: Yes.
6. Reasoning: The strict liability rule for abnormally dangerous activities as stated in Rylands v. Fletcher, has been codified in the Restatement of Torts. Thus, “one who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity...although the utmost care is exercised to prevent the harm.” This rule should be applied in Florida. Furthermore, the activity here was ultrahazardous because it “necessarily involve[d] a risk of serious harm...which can not be eliminated by the utmost care,” and “it is not a matter of common usage.” Although the land in question has traditionally been used as a phosphate mine, the sheer amount of possible damage made it a non-natural use of the land. Thus, even though the mine is very useful, the rights of the adjoining landowners and the public requires that the loss be placed on Cities Service.

1. Frady v. Portland General Electric Co., (1981); pg. 706, briefed 10/22/96
2. Facts: PG&E operates an electrical generating plant which emits low frequency vibrations.
3. Procedural Posture: Plaintiffs are adjoining landowners and residents. They brought an action for private nuisance and trespass. The case was originally non-suited, and has been again dismissed in the trial court.
4. Issue: Whether the plaintiffs have stated a cause of action.
5. Holding: Yes.
6. Reasoning: For a complaint in nuisance to be sufficient, it must allege that the defendant’s actions were either intentional and unreasonable, or unintentional and negligent. Likewise for trespass, the complaint must allege intentional action. Here, the plaintiff’s do not expressly allege intentional action. However, based on the previous non-suit, the court can infer actual knowledge of the complaints, thus making the subsequent action intentional. The defendants properly raise the point that a private nuisance cause of action must plead special damage, otherwise, it is a public nuisance and the state is the real party in interest. Thus, as to the persons who are not landowners, they do not have standing since their damages are not different that the rest of the general public, but rather only an increase in degree. However, the landowners do have special damages. The trespass claim is properly dismissed as to all of the plaintiffs because they failed to allege that there was an invasion of the exclusive possession of their land, only that there was an invasion of their use and enjoyment of it.
7. Notes: 1. A trespass may be found from transitory particulate matter if the plaintiff suffers “actual and substantial damage”. This extra requirement of substantial damages balances the need for factories with the rights of the adjacent landowners, screening out those with only nominal damages. 2. Nuisance does not require a showing of negligence. “Liability in nuisance is predicated upon unreasonable injury rather than upon unreasonable conduct.” 3. “Coming to the nuisance” is generally regarded as not being a valid defense any longer. “Hypersensitivity” is a valid defense, even though most environmental laws are designed to protect even the hypersensitive. 4. An economic approach would be to define “unreasonableness” as if the marginal damage exceeded the marginal cost of abatement. 4. Strict liability in environmental cases forces companies to internalize all of the costs of doing business. However, those costs are then passed on to the consumer.

1. Sindell v. Abbott Laboratories, (1980); pg. 393, briefed 11/20/94
2. Facts: The π was the daughter of a woman who was prescribed DES to prevent a miscarriage while the π was in utero. DES was found to cause cancer, and the π is trying to recover damages from her own cancer. The ∆ was one of 100 or so manufacturers who made DES as a generic from a common formula. The π cannot prove that ∆ was the one who made the DES that her mother actually ingested, nor can the ∆ prove that they were not the actual manufacturer.
3. Procedural Posture: The ∆ demurred and trial court sustained the demurrer without leave to amend based on π's admission that they could not prove that the ∆ was the actual manufacturer.
4. Judges' Rule: Where several manufacturers of a product are named as ∆'s to a product liability action, and the π cannot prove proximate causation of any one manufacturer, and the manufacturers can not disprove causation, the π may bring action against a number of ∆'s jointly. If the combined market share of each of the ∆'s is a substantial percentage of the overall market, the burden of proof shifts to the ∆'s to disprove causation. Furthermore, the damages shall be apportioned among ∆'s in proportion to their individual market shares.
5. Classical Holding: Same as judge's rule.
6. Reasoning: The majority reasoned that as between an innocent π and negligent ∆'s, the latter should bear the cost of the injury. They relied upon the holding in Summers. Each ∆ could in turn bring action against the remaining DES manufacturers not joined in the action to recover their fair share. The court felt it was proper to introduce a new theory to address the changing times. Otherwise, the ∆'s would have no deterrence, because they knew that they could be protected by their relative anonymity if there were enough other manufacturers.
7. Notes: 1. The Environmental Law Institute (ELI) proposed a model statute for apportioning liability among possible tortfeasors, and damages among possible vicitms, including taking into account contributory negligence and assumption of risk, in order to minimize overdeterrence of industry. Under their scheme, if the nationwide “background” incidence of a disease was 20/100,000, and exposure to toxics at a given site was known to increase the risk by 3/100,000 to 23/100,000, then assuming no contributory negligence, the plaintiff with $1 million in actual damages would recover 3/23 * 1 million or $13,000. The rationale is that although three of the disease cases in the area were probably caused by the toxic site, the court would not be able determine which 3 of the 23. Thus, the amount of recovery is discounted by the probability that the harm to that particular person was caused by the site. 2. Due to the latency period of the disease following exposure, the statute of limitations is generally extended to run from the time that the plaintiff discovered, or should have discovered the cause of the disease.

1. Ayers v. Jackson Township, (1987); pg. 728, briefed 10/24/96
2. Facts: 339 plaintiffs sued a township for injuries allegedly caused by contamination of an aquifer from a landfill.
3. Procedural Posture: The trial jury returned a verdict for the plaintiffs, and damages were awarded for quality of life, increased risk of cancer, and medical surveillance expenses for the increased cancer risk. The appellate division set aside damages for the medical surveillance expenses.
4. Issue: Whether the unquantifiable increased risk of illness or a need for medical surveillance is sufficient to justify compensation under the Tort Claims Act.
5. Holding: An unquantified enhanced risk of disease, in the absence of symptoms of present disease, is not presently compensable. However, the quantifiable cost of medical surveillance caused by that unquantified but significant enhanced risk is presently compensable.
6. Reasoning: The courts have been reluctant to provide present compensation for unrealized injury unless the proof that the injury will occur is substantial. This is because to award damages based on a mere mathematical probability would significantly undercompensate those who actually do develop cancer, and would be a windfall to those who do not. The legislative purpose of the Tort Claims act also states that the courts should exercise restraint in recognizing new causes of action. However, the claim for medical surveillance is sustainable because the cost of surveillance is a present cost, and is necessary, and has been caused by the exposure.

1. Village of Wilsonville v. SCA Services, Inc., (1981); pg. 520, briefed 10/29/96
2. Facts: SCA operates a toxic waste disposal dump that is located within and adjacent to the Village. The dump contains very dangerous chemicals, stored in steel drums. The dump sits on top of a low-permeation glacial till, under which is some groundwater, and also an abandoned coal mine. Several experts testified that eventually there will be contamination of the groundwater, and thus the surrounding wells, due to either interaction of the chemicals, collapse of the coal mine, or leaching of the chemicals through the soil.
3. Procedural Posture: The Village brought this suit to enjoin SCA from operating the dump. The trial court found for the Village, and ordered the site cleaned up and removed. The court of appeals affirmed. The defendant assigns three points of error: 1) that the lower courts did not apply the proper standard for determining when a prospective nuisance should be enjoined, 2) the lower court failed to defer to the EPA and give weight to the permits they issued, and 3) the lower courts did not balance the equities correctly when deciding to grant a permanent injunction.
4. Issue: Whether the granting of a permanent injunction against a prospective nuisance was proper in this case.
5. Holding: Yes.
6. Reasoning: It is true that in order to enjoin a prospective nuisance, there must be a high probability that the nuisance and damage will actually occur. However, in this case, there can be no doubt that it is highly probable that a nuisance will occur that will bring about substantial injury. Additionally, the condition of nuisance is already present due to the location of the site and the manner in which it has been operated. As to deference to the EPA, the permits were granted based on evidence supplied by the defendant himself, which was proved at trial to be inaccurate. Thus, the permits do not deserve any weight. As to the permanence of the injunction, a permanent injunction will not lie unless 1) either the polluter seriously and imminently threatens the public health, or 2) he causes non-health injuries that are substantial and the business cannot be operated to avoid the injuries. However, in this case there is clearly an extremely hazardous activity being conducted in an unsuitable location, which seriously and imminently poses a threat to the public health. There is no question that the defendant provides a very socially valuable service. However, nuisance may merely be a right thing in a wrong place.

1. Boomer v. Atlantic Cement Co., (1970); pg. 592, briefed 3/19/95
2. Facts: The ∆ operates a cement plant. The π is a resident of the area. The plant emits large quantities of particulate matter which is a nuisance to the π.
3. Procedural Posture: The lower courts found that a nuisance did exist, and that the total damages, present and future, were $185,000. However, contrary to the general rule of the state, they refused to grant an injunction to stop the cement plants operation, even though it was a substantial and continuing nuisance, because of the extreme lopsidedness in value of the plant as compared to value of the πs property.
4. Issue: Should an injunction be granted in a nuisance case where there is a large disparity between the value of the πs damages and the value of the ∆s operation?
5. Holding: No. Where a nuisance is of a permanent and unabatable character an injunction will be granted unless the value of continuing the operation significantly outweighs the value of the damage done by the nuisance, in which case permanent damages may be awarded instead.
6. Reasoning: The majority reasoned that the value of having cement plants was very high. Furthermore, there was not likely to be any acceleration in the rate of finding a reasonable way to abate the pollution. Thus, it would be inequitable to grant the injunction and shut down the plant entirely. However, the threat of an injuction if the ∆ did not pay damages would correct the problem of the particualr πs that were a party to this action. Thus, the majority reasoned that the proper remedy would be to grant an injunction, which would be removed when they paid permanent damages. The theory they used would be a "servitude on land" of πs imposed by the ∆s nuisance.
7. Dissent: The dissent reasoned that air pollution from cement plants was of such high importance to the public in general that the court should set a precendent on behalf of the rest of the public, not just the particular πs in this action.

1. Reserve Mining Co. v. EPA, (1975); pg. 531, briefed 11/5/96
2. Facts: Reserve has operated a mining facility on the edge of Lake Superior for 15 years. The mine discharges “tailings” (residual slurry) from its operations into the Lake. It also discharges particulate matter into the air. The lake is a source of drinking water for local residents. There was evidence produced at trial that a fiberous component of the waste was susbtantially the same as asbestos, which causes cancer when inhaled in sufficient doses.
3. Procedural Posture: The trial court found that Reserve violated both air and water regulations, and also was a common law nuisance. It found that the operations “substantially endangers the health of the people”, and ordered an immediate injunction.
4. Issue: Whether the danger to the public health posed by the Reserve mine is substantial enough to require an immediate injunction.
5. Holding: No.
6. Reasoning: It is reasonable (though not more probable than not) to conclude, based on the evidence, that the discharge of the fibers into the air are of the same nature and dosage level as those hypothesized by many studies to cause cancer due to non-industrial exposure (merely being near an asbestos plant). Also, although there is some inconclusiveness in the studies, the discharge of the fibers into the water are of a sufficient nature and level to give rise to a “reasonable medical concern for the public health.” The Reserve discharges into the air violate various air pollution statutes and regulations. The FWPCA provides authority for the U.S. to secure abatement of water discharges into waters where the discharges violate state water quality standards and “endanger...the health or welfare of persons.” The state regulations here define pollution as contamination which is “potentially harmful or detrimental or injurious to public health.” Based on our findings, the Reserve discharge is pollution under this definition. Furthermore, the term “endanger” in the FWPCA, interpreted in light of legislative history and common sense, is used in a precautionary or preventative sense. Thus, the discharge of fibers into the water can be abated. However, given the balance of equities in this case, the best remedy is to allow the mine a “reasonable” time to find a land-based disposal site for the “tailings.” As to the air pollution, however, the mine must immediately use such available technology as will reduce the fiber count in the ambient air below a medically significant level.

1. United States v. Monsanto co., (1988); briefed 11/29/96
2. Facts: ∆s are the landlords and a few waste generators affiliated with a toxic dump site that was extremely poorly managed. The landlords leased the land to a toxic waste disposal company which accepted and stored toxic wastes in a very haphazard manner. In time, the wastes leaked out, caused fires and explosions, and toxic clouds.
3. Procedural Posture: EPA sued for reimbursement under CERCLA 107(a) for the costs of the cleanup of the site. During clean-up, several 55 gallon drums bearing the logos of the defendant generators were found. Also, in the soil, wastes “like” the ones produced by the generators were found. The District Court entered summary judgment against the defendants as to liability.
4. ∆’s Arguments: 1. The landlords argued that they were ignorant of the disposal and treatment practices, and thus they were innocent absentee landlords. Furthermore, the landlords argued that summary judgment was inappropriate because there were genuine issues of fact as to the affirmative defense of third-party intervention. 2. The generators argued that imposition of liability retroactively was unconstitutional, and that the government needed to demonstrate a closer nexus or causation between their wastes and the harm to the land, i.e. that the spilled wastes actually came from their drums.
5. Issue: Whether summary judgment was proper in this case.
6. Holding: Yes.
7. Reasoning: The structure of CERCLA is to provide strict liability for site-owners and waste generators (among others) so long as the government can make out a prima facie case that the site was a “facility”, that there was a release, and that the government incurred cleanup costs. Thus, there is clear intent on the part of Congress not to require active participation of the landowner to impose liability. There was no evidence to support the landowner’s affirmative defenses because they had a contractual relationship with the dumpers (the lease). Furthermore, even if there were no contractual relationship, the site-owners did not take precautionary action against the dumping, because they never visited the site. As to the generator’s liability, the plain meaning of the word “such” in the language describing the release of compounds “containing such hazardous substances” is “alike” or “similar.” It would weaken the intended bite of CERCLA if the government had to prove actual causation. Congress intentionally allocated the burden of disproving causation to the defendant who profited from the inexpensive disposal of hazardous wastes. Also, the application of joint and several liability here is appropriate because the harm was “indivisible” among the PRPs. Lastly, the retroactive application of liability is constitutional because it is not a “punishment”, but rather a reimbursement obligation.
8. Notes: 1. The court held that applying joint and several liability, and then requiring the parties to bring a second action for contribution from co-defendants was allowable. Considerations in assigning shares include volume, toxicity, involvement , degree of care exercised. 2. There is a special exception to liability for innocent purchasers of a dirty site under 101(35)(A). However, it is limited to purchasers who did not know and had no reason to know that any hazardous substance was disposed of at the facility. 3. The affirmative defenses listed in §107 are narrow and very hard to satisfy. For example, an act of God must be the only cause if that defense is to be used. 4. Negotiations of settlements between EPA and the site owners or generators are frequent. IN return for cleaning up the sites themselves, or paying a sum, the PRPs are granted a convenant not to sue.

1. Cadillac Fairview v. Dow Chemical Co., (1988); pg. 644, briefed 11/30/96
2. Facts: Cadillac bought property in Torrance. It later learned that the site had been used by Dow, Shell, the federal government, and others as a toxic waste dump site. State officials requested that Cadillac undertake certain measures to protect local residents from harm from the wastes, and so Cadillac incurred about $70,000 of expenses out of its own pocket in testing, erecting a fence, and employing a security guard to keep people out.
3. Procedural Posture: Cadillac brought a federal action under CERCLA 107(a) to recover the costs “necessary” to respond to the danger. Cadillac also sought declaratory judgment that all costs in the future would be borne by the defendants, and sought injunctive relief, requiring the defendants themselves to clean up the site. The district court entered summary judgment for the defendants on the grounds that CERCLA does not provide for a private response action in the absence of some initiation or coordiation by a governmental agency.
4. Issue: Whether CERCLA provides for a private response action by a private individual acting alone in the absence of governmental coordination or initiation.
5. Holding: Yes.
6. Reasoning: In Wickland and in NL Industries the court had held that private actions need not be preceeded by governmental actions. There is nothing in the statute that indicates that a party seeking to recover its costs must wait for government approval. Also, the statutory structure of CERCLA provides no mechanism for a private party to seek approval of a response. Finally, to require the government to act first would result in requiring them to devote limited resources to this procedure. Thus, summary judgment as to monetary liability was improper. However, the claim for injunctive relief was properly dismissed because CERCLA does not provide for a private right of injunctive relief, only a federal right to injunctive relief in §106.

1. Unites States v. Akzo Coatings of America, Inc., (1991); pg. 329 supp., briefed 12/1/96
2. Facts: The Rose Site in Michigan contains toxic wastes. EPA placed the site on the NPL, and conducted an RI/FS which originally stated that the method of cleanup must be incinerating the soil. Later, the EPA reconsidered, and entered into a consent decree with the PRP’s to allow 1/2 of the soil to be flushed, and the other half to be incinerated, so long as the PRP’s can demonstrate that the soil flushing will satisfy the clean-up requirements. Michigan argues that this violates their non-degradation of ground water statute, which is one of the Applicable or Relevant and Appropriate Requirements (ARARs).
3. Procedural Posture: The district court found that the Michigan non-degradation statute was an ARAR, but that the soil flushing was acceptable given the provision that it be proven as effective as incineration. The PRP’s appeal the decision that the Michigan statute is an ARAR, and Michigan appeals the decision that soil flushing is allowable clean-up method.
4. Issue: Whether the consent decree, allowing the soil flushing, is valid.
5. Holding: Yes.
6. Reasoning: The consent decree has reasonably addressed all of the concerns raised in the public comments to the RI/FS and to ROD. Thus, it is not arbitrary or capricious. Also, although the Michigan anti-degradation statute is an ARAR, it has been impliedly waived by the EPA. The EPA is not under any duty to conclusively determine that the soil flushing will work. They merely need to provide sufficient safeguards (which they have) that the method will work.

1. Tennessee Valley Authority v. Hill, (1978); pg. 404, supp., briefed 12/1/96
2. Facts: Congress authorized about $100 million for the construction of Tellico Dam on the Tennessee River, as part of a river development plan. After it was about half-completed, a small population of a new species of snail-darter fish was discovered in an area that would be destroyed by the reservior that the dam would create. A citizen’s group petitioned the Secretary of the Interior to place the new species of snail darter on the endangered species list. The Secretary, pursuant to the newly enacted Endangered Species Act, halted progress on the dam under §7 of the act, which provides that the Secretary must take “such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize” the species.
3. Procedural Posture: TVA sued to have the dam contruction reopened. Thereafter, Congress itself continued to allocate funds for the dam, even with knowledge of the pending lawsuit. The district court refused to enjoin construction of the dam, and the court of appeals reversed.
4. Issue: Whether the ESA requires that the Tellico Dam construction be halted to save the snail-darter even though it was substantially constructed already, and Congress continued to allocate money for it.
5. Holding: Yes.
6. Reasoning: The plain language of the ESA is that there is no exception to the rule of protecting the endangered species at any cost. This language is further supported by the legislative history, noting that the value of a species is incalculable. The plain intent of Congress was to halt and reverse the trend toward species extinction, whatever the cost. There is no provision for the Courts to interpret the Act differently or to find that it does not apply to federal projects already underway. To do so would violate separation of powers. The fact that Congress continued to allocate funds does not create an implicit exception.
7. Notes: A “God Squad” that was formed to decide exceptions on a case-by-case basis. The committee requires five out of seven votes for an exception. However, the committee voted down an exception for the dam. An exception was later granted via a rider to a general bill.

1. Northern Spotted Owl v. Hodel, (1988); pg. 408, briefed 12/1/96
2. Facts: The Northern Spotted Owl is associated with old-growth forests in the Pacific Northwest which are available for harvest. Pursuant to the ESA, the Fish and Wildlife Service initiated a study of the owl to determine it’s status. Their expert, and other reviewing experts, concluded that the owl would become extinct in the forseeable future if the forest habitat was harvested. However, the Service issued a report stating that listing of the owl was not warranted.
3. Procedural Posture: The plaintiffs sued to have the owl listed. Both sides moved for summary judgment on the record.
4. Issue: Whether the Service is entitled to deference in its opinion that the owl should not be listed.
5. Holding: No.
6. Reasoning: The Service’s action was arbitrary and capricious under the APA because its decision has not been backed up with any analysis. The decision not to list the owl is contrary to their own unrebutted expert’s opinion without offering an explanation.

1. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, (1995); pg. 410 supp., briefed 12/1/96
2. Facts: The Secretary of the Interior listed the northern spotted owl and the red-cockaded woodpecker as endangered species. As such, under §9, it became illegal to “take” them, meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect them.” Furthermore, the Secretary promulgated regulations that further defined “harm” to include “significant habitat modification or degradation where it actually kills or injures wildlife.”
3. Procedural Posture: The citizen’s group of farmers sued for a declaration that the regulation defining harm as “habitat modification” was beyond the power of the Secretary. The lower courts agreed.
4. Issue: Whether the Secretary exceeded his authority under the ESA by promulgating a regulation prohibiting “habitat modification.”
5. Holding: No.
6. Majority Reasoning: The ordinary meaning of the word “harm” is to cause hurt or damage to. In the context of the ESA, that naturally encompasses habitat modification that results in actual injury. Second, the broad purpose of the ESA supports the decision to extend protection. Third, the statutory structure implies that the word “harm” itself was intended to have independent meaning. Thus, the Secretary is entitled to deference (under Chevron) since his interpretation of the ESA statute is reasonable.
7. Dissent Reasoning: [Scalia] The word “harm” is not the important word in the statute. The word “take” is the operative word. “Take” is a term of art that has a well-defined meaning. In this sense, it means an act, not an omission, that directly and intentionally, not by accident, injures a particular animal, not polulations of animals.


Roger W. Martin


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