Tribes Sue Oil Companies Over Climate Change

8 08 2008

On February 26, 2008, the Inupiat Eskimo Village of Kivalina, Alaska sued twenty-three oil companies and power companies in the U.S. District Court for the Northern District of California for damages caused by climate change. The Complaint alleges that global warming is destroying Kivalina through the melting of Arctic sea ice that formerly protected the Village from winter storms. The Complaint seeks the costs of relocating the Village, among other things. While the Complaint alleges typical causes of action for public nuisance and private nuisance, it also includes a cause of action for civil conspiracy. In that cause of action, the Village alleges that some of the defendants “participated and/or continue to participate in an agreement with each other to mislead the public with respect to the science of global warming and to delay public awareness of the issue—so that they could continue contributing to, maintaining and/or creating the nuisance without demands from the public that they change their behavior as a condition of further buying their products.”


U.S. Supreme Court to Hear Best Available Tech. Appeal

8 08 2008

The U.S. Supreme Court agreed to hear three cases consolidated for appeal, including the case of Entergy Corp. v. EPA, et al.  The issue presented is whether power plants must use the best available technology to prevent aquatic life from being sucked into cooling water intake pipes or whether the plants can compare costs with benefits.  The Second Circuit held that EPA could only take cost into account when the competing technologies had identical results but different costs.


Polar Bear Listed as “Threatened” Species

8 08 2008

The United States Department of Interior listed the polar bear as a “threatened” species under the federal Endangered Species Act. While such a listing would typically create review requirements only for projects in Alaska, in this case the listing was made to address the impacts of global warming. At least theoretically, any “major federal action” in the US needed to approve a new source of greenhouse gas emissions would have to conduct an ESA review to determine the impact on polar bears prior to receiving approval. To protect against this result, the Secretary of DOI announced:


To make sure that the Endangered Species Act is not misused to regulate global climate change, I will take the following specific actions:


First, to provide clarity and certainty to those regulated under the Endangered Species Act, the Fish and Wildlife Service will propose what is known as a 4(d) rule that states that if an activity is permissible under the stricter standards imposed by the Marine Mammal Protection Act, it is also permissible under the Endangered Species Act with respect to the polar bear. This rule, effective immediately, will ensure the protection of the bear while allowing us to continue to develop our natural resources in the arctic region in an environmentally sound way.


Second, Director Hall will issue guidance to Fish and Wildlife Service staff that the best scientific data available today cannot make a causal connection between harm to listed species or their habitats and greenhouse gas emissions from a specific facility, or resource development project, or government action.


Third, the Department will issue a Solicitor’s Opinion further clarifying these points.

Fourth, the ESA regulatory language needs to be clarified. We will propose common sense modifications to the existing regulation to provide greater certainty that this listing will not set backdoor climate policy outside our normal system of political accountability.


Citizen Suit Against County Barred by Consent Judgment

8 08 2008

In Piney Run v. County Commissioners, 523 F.3d 1299 (Apr. 28, 2008), the 4th Circuit held that a citizens’ group could not sue the County for alleged Clean Water Act violations because the State Department of the Environment was diligently prosecuting the matter pursuant to a Consent Judgment with the County.


U.S. Supreme Court Takes Up Appeal on 404 Permit

8 08 2008

The United States Supreme Court will review a decision from the United States Court of Appeals for the Ninth Circuit that barred discharge of liquefied gold mining waste into an Alaskan mountain lake. The underlying cases are Coeur Alaska Inc. v. Southeast Alaska Conservation Council, No. 07-984 and Alaska v. Southeast Alaska Conservation Council, No. 07-990. The state of Alaska and Coeur Alaska Inc., a gold mining company, are seeking to reopen Alaska’s Kensington Gold Mine. The Ninth Circuit overturned a permit issued by the U.S. Army Corps Of Engineers under Section 404 of the Clean Water Act that allowed the company to dump dredged waste from the mine into the Lower Slate Lake in the Tongass National Forest. The Southeast Alaska Conservation Council and others filed a lawsuit objecting to the permit. They argued that the Corps violated Sections 301(a), 301(e), and 306(e) of the CWA by issuing a permit for the discharge of process wastewater from a “froth-flotation mill” into a body of water protected by effluent limits promulgated by EPA. The petitioners assert that the case has both economic and administrative law importance whereby the economic benefits of mining to a region must be considered in evaluating environmental concerns.

Joint and Several Liability Found Against Shell Oil

8 08 2008

A panel of the Ninth Circuit imposed joint and several liability upon Shell Oil Company, which sold chemicals to the defunct facility owner, and two railroad companies that owned part of the land that was contaminated. United States v. Burlington Northern, 2008 WL 763257 (9th Cir. Mar. 25, 2008). Rejecting a district court’s 191-page opinion apportioning liability based on years of ownership and the percentage of the facility owned by the railroads, the panel stated that the proper time to focus on such factors is at the contribution phase, not the liability phase. The panel affirmed the finding of joint and several arranger liability of Shell for chemicals that were spilled on the site by the buyer of Shell’s product, which was shipped by a common carrier F.O.B. delivery point. Eight circuit judges dissented from the order denying rehearing en banc, stating that the district court’s reliance on percentage and time of ownership finds support in the Restatement and other circuits, and that the panel’s interpretation of CERCLA arranger liability creates intra and inter circuit conflicts and imposes liability on a defendant that lacked control over products spilled following sale.

D.C. Court of Appeals Vacates Clean Air Interestate Rule

8 08 2008

In North Carolina v. Environmental Protection Agency, No. 05-1244, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA’s Clean Air Interstate Rule, finding “more than several fatal flaws.” The rule was to use an emissions trading plan to reduce ozone and fine particle pollution from power plants that is transported across state boundaries and was to help so-called downwind states attain EPA air quality standards for ozone and fine particles. The D.C. Circuit struck down the agency’s method for allocating emissions allowances for upwind states and its interpretation of protections for downwind states, leading the judges to vacate the entire rule.