The European Union (Withdrawal) Bill – Implications for Environmental Law

Posted in Brexit, Chemicals, EU

On 13 July 2017 the European Union (Withdrawal) Bill (the Bill) was presented to the United Kingdom Parliament for its initial reading. This draft legislation, previously referred to as the “Great Repeal Bill“, is intended to give substantive effect to the UK’s 23 June 2016 Brexit vote by, when enacted, repealing the European Communities Act 1972 through which the UK became a member of the European Union.

The Bill will also convert, for legal continuity, existing EU law into domestic UK law. Following the UK’s exit from the EU – expected to be in March 2019 – the UK Parliament will then have the ability to amend such converted EU law as it sees fit (subject of course to the UK’s other international legal obligations, including any exit agreement reached with the EU). The Bill will therefore bring to an end the supremacy of EU law in the UK.

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The Margate Dune Project, Cooperative Federalism, and Problems of Litigation Procedure

Posted in Climate Change, Court Cases, DEP, Environment, Executive Order, Federal, Infrastructure, Litigation, New Jersey, State & Local

The current federal administration has expressed a desire to defer largely to states through principles of cooperative federalism.  A recent case involving the dune construction in Margate, New Jersey, offers some insight into the procedural complexities this approach presents for those affected.  Where a state oversees a federally funded project, it is unlikely that one court can hear all of the issues.  Margate demonstrates parties may need to seek to enjoin the state actor in state court while proceeding against the federal actor in federal court.  Other less publicized examples include instances where a party has entered into a consent decree with a federal agency, but then a state agency issues a permit.

The U.S. Army Corps of Engineers (“Corps”) has been constructing dunes to protect Absecon Island, where Margate is located, from storm damage, a project motivated by Superstorm Sandy.  Storm water from Margate streets has been reported to have ponded behind the dunes and does not percolate into the sand promptly.  The City has sued to halt the project.

To have jurisdiction over the New Jersey Department of Environmental Protection (“NJDEP”), which had gained an easement to construct the federally funded project, Margate had to bring its suit in state court.  City of Margate v. N.J. Dep’t of Envtl. Protection, No. ATL-C-52-17 (N.J. Super. Ct. Ch. Div., Atlantic Cnty.).  After an initial hearing, the New Jersey Superior Court issued an order temporarily enjoining NJDEP and the contractor hired by the Corps from completing further construction.  The Corps was not yet a party and did not participate in the hearing.  The state court ordered the Corps joined as an indispensable party, and the Corps, in turn, removed the action to federal court.

The Corps asked the District of New Jersey to dissolve the temporary restraints, in part, on the basis that the state court did not have jurisdiction to enjoin the Corps.  City of Margate v. N.J. Dep’t of Envtl. Protection, No. 17-cv-5766 (D.N.J. Aug. 10, 2017).  At the same time, NJDEP asserted sovereign immunity under the Eleventh Amendment and has not consented to federal court jurisdiction.  The district court noted that to the extent the Corps consents to be sued, the “federal courts have exclusive jurisdiction,” which means, the Corps cannot consent to jurisdiction before the state court.  While NJDEP’s sovereign immunity is a “personal privilege” that can be waived voluntarily “at pleasure,” NJDEP has declined to waive its sovereign immunity.  That means, the federal court has jurisdiction over the Corps, but not NJDEP, and the state court has jurisdiction over NJDEP, but not the Corps.  As a result, Margate has filed another action against NJDEP in state court.

On Tuesday, the Third Circuit denied the City of Margate’s motion to stay the district court’s order denying the City’s request for an injunction and dissolving temporary restraints on the Corps’ dune project.  City of Margate v. N.J. Dep’t of Envtl. Protection, No. 17-2752 (3d Cir. Aug. 15, 2017).  The Third Circuit referred the question of whether the district court’s order is immediately appealable to a full motions panel.  That leaves the two sovereigns in separate lawsuits in separate courts at least for the rest of this summer season and suggests that those affected by state-federal “cooperatively federalist” projects may face a similar procedural problem.

Coincidentally, section 6 of the August 15 Presidential Executive Order on environmental review of infrastructure projects, available here, revokes President Obama’s Executive Order 13690, which called for evaluations of flood resiliency of infrastructure projects taking climate change into account.

What’s Happening With the Environmental Rights Amendment?

Posted in Environmental Rights Amendment, Pennsylvania

A decision rendered last month by the Supreme Court of Pennsylvania reinterpreted the commonwealth’s obligations under Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment (ERA). The Supreme Court sided with the appellant, Pennsylvania Environmental Defense Foundation (PEDF), in PEDF v. Commonwealth of Pennsylvani a, 10 MAP 2015, and held that the commonwealth had violated the fiduciary duty imposed on it by the ERA. Pursuant to this decision, Pennsylvania and its agencies must prohibit the degradation of public natural resources resulting from state or private activity, and must act affirmatively by passing legislation intended to protect the environment. These duties do not, however, prohibit outright the commonwealth from utilizing its public property in ways that promote the general welfare of its citizens. Included in the commonwealth’s fiduciary duty is the duty of prudence, requiring it to “exercise such care and skill as a man of ordinary prudence would exercise in dealing with his own property.” This duty tempers—somewhat unclearly—an interpretation of the ERA requiring preservation of Pennsylvania’s public natural resources to the exclusion of their reasonable use.

Read more from my article in The Legal Intelligencer supplement, PA Law Weekly, by clicking here.

Levitas v. Christian: Standards for Expert Opinions on Exposure Pathways in Maryland

Posted in Lead paint, Maryland, Toxic Tort

Last week, the Maryland Court of Appeals (the highest state court) decided a lead paint toxic tort case of potential interest to environmental lawyers. Levitas v. Christian, No. 58 Sept. Term 2016 (Md. July 11, 2017), holds that a pediatrician may testify not only that the plaintiff’s injuries are the result of lead exposure, but also that he was exposed to lead while living in defendant’s building.  This evinces a relatively relaxed approach to expert qualification, particularly in the fate and transport or exposure pathway context.

The plaintiff lived in defendant’s building during two periods when he was an infant and a small boy; he lived elsewhere for a time as well. Born in 1990, he brought suit in 2011 ahead of the expiration of the limitations period for injuries caused by exposure to lead paint or paint chips.  His blood lead concentrations were tested as a boy, and they were elevated before he left defendant’s building, but more elevated after.  Plaintiffs offered evidence that defendant’s building contained deteriorating paint at the time, and that it was likely lead-containing.

Plaintiffs’ counsel have filed a substantial number of these lead-paint exposure cases in Baltimore City, among other places, as plaintiffs who are young enough to have had routine lead testing as children reach majority.

An expert medical doctor proposed to testify that plaintiff’s various injuries resulted from his lead exposure. He also proposed to testify that plaintiff was exposed to the lead at defendant’s building, as opposed to anywhere else.  The trial court excluded the exposure pathway evidence under Maryland Rule of Evidence 5-702.

Note that Rule 5-702 is similar to, but not exactly the same as, Federal Rule of Evidence 702, and Maryland is a Frye, not a Daubert, jurisdiction. Chesson v. Montgomery Mut. Ins. Co., 75 A.3d 932 (Md. 2013).

In this case the issue turned on whether the physician had sufficient experience, training, or education to opine as to exposure pathways, and whether he had a sufficient factual basis to support his opinion. In each case, the trial court erred, and should not have excluded the expert’s opinion.  Essentially, the Court of Appeals reasoned that a pediatrician who had experience with a lot of infant and toddler lead paint cases would know enough to be expert about how small children come to have high blood lead levels, and that he had enough facts about defendant’s building to opine that its condition was a substantial factor in plaintiff’s injury.

Experts who work on many similar cases learn a lot about complementary fields. Certainly the lawyers do.  This opinion seems to give some latitude to an expert in one field to claim a broader expertise — in paint composition or children’s ingestion habits, for example.  Think about applying this sort of acquired expertise to experts in groundwater contamination cases.  Can the geologist testify to vapor intrusion?  Can the toxicologist testify to groundwater flow?  Can either of them testify to the connection between the defendant’s historical activities and the groundwater conditions now?

Interestingly, Maryland’s Frye jurisprudence is a somewhat tight on the ability to testify. Chesson, for example, precluded a physician from testifying that mold exposure caused plaintiff’s injuries because the causal connection between mold toxins and plaintiffs’ symptoms was not generally accepted.

Maryland Rule of Evidence 5-702:

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

Department of Interior’s Call for Identification of Rules for Repeal, Modification, or Replacement

Posted in EPA, Executive Order

The Department of the Interior (the Department) last week issued a Federal Register notice calling on the public to identify regulations for repeal, replacement, or modification. The Department’s action is part of President Trump’s regulatory reform agenda, as embodied in Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” which outlines the new administration’s goal of alleviating unnecessary regulatory burdens.

Unlike a similar Federal Register notice issued by the Environmental Protection Agency in April, the Department’s notice has no deadline by which comments must be submitted. But the old adage, “The early bird gets the worm,” seems particularly apt here, in light of the president’s ambitious regulatory goals and the brisk pace envisioned in and frequent reporting required by E.O. 13777.

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SCOTUS Provides Guidance on the Definition of Relevant Property in a Regulatory Taking Case

Posted in Environment, Litigation, Real estate

On June 23, 2017, the U.S. Supreme Court decided Murr v. Wisconsin, No. 15-214, 2017 WL 2694699 (U.S. June 23, 2017), which presented perhaps the most important issue of regulatory takings law that the Court has never addressed – the “relevant parcel” or “parcel-as-a-whole” issue. That issue, which arises in many regulatory takings cases, is how a court should define the property at issue for purposes of assessing whether a regulatory imposition constitutes a taking of that property. The issue is important, and indeed can be determinative, because defining the relevant property narrowly will concentrate the impact of the regulatory imposition and thus make it more likely to constitute a taking. Conversely, defining the relevant property broadly will mitigate the severity of a regulation’s impact on the “parcel-as-a-whole,” making a taking of the whole parcel less likely.

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Pennsylvania Manufacturers’ Association Insurance Company v. Johnson Matthey, Inc.: Multiple Trigger Doctrine and Impacts to Superfund Litigation

Posted in Articles, Contamination, Pennsylvania

The Commonwealth Court recently held that certain Comprehensive General Liability (“CGL”) “occurrence” insurance policies issued before the institution of a blanket pollution exclusion cover latent environmental contamination that occurred during the policy period, even when such contamination does not manifest until after the policy period expires. This holding identified latent environmental contamination as falling within an exception to the longstanding rule that CGL occurrence insurance policies are triggered by the first manifestation of injury. Pennsylvania Manufacturers’ Ass’n Insurance Co. v. Johnson Matthey, Inc., (Johnson Matthey), No. 330, 2017 WL 1418401 (Pa. Commw. Ct. Apr. 21, 2017).

Determining when an “occurrence” under a CGL policy is triggered by environmental contamination can have important practical implications. Insurers take the position that the “first manifestation rule” applies.  The first manifestation rule limits the occurrence to one trigger—the time the contamination first manifested.  Insureds take the position that the “multiple trigger exception” applies, covering latent contamination over a broader period of time and giving insureds access to multiple policies for a single event.  The difference in when a policy is triggered can be significant for how insureds conduct themselves and for how other PRPs (including for example, insureds’ contribution defendants) conduct themselves.

Read more from my article in The Legal Intelligencer supplement, PA Law Weekly, by clicking here.

Beware the Public Trust: New York’s Highest Court Stops Retail Expansion On Citi Field’s Parking Lot Under Public Trust Doctrine

Posted in Litigation, New York

New York courts have long held that the “public trust” doctrine precludes the use of dedicated parkland for non-park uses. The New York Court of Appeals showed just how strictly that doctrine is applied when, after many years of planning and litigation, it enjoined development of a retail entertainment complex known as Willets West in the Citi Field parking lot, the baseball stadium that is home to the New York Mets. The June 6 opinion showed that the public trust doctrine is alive and well in New York State and can create havoc for development projects on land that is located within a state or municipal park, regardless of its current use.

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Air Source Aggregation: Compression Station and Natural Gas Wells are Not A Single Source in Pennsylvania Merely Because they are Owned by Corporate Affiliates

Posted in Air, Pennsylvania

On Friday, June 2, a Pennsylvania intermediate appellate court held that air emissions from a natural gas gathering system compression station and a natural gas well pad served by that gathering system could not be aggregated for purposes of air emissions permitting because they were owned by different corporations, albeit corporate affiliates.  National Fuel Gas Midstream Corp. v. Dep’t of Envt’l Prot’n, No. 116 CD 2016 (June 2, 2017).  A different result would create a practical and conceptual problem:  a permit issued to the compression station owner would implicitly (or explicitly) control emissions from the wells, and the wells are operated by a different entity.

Under the Pennsylvania Air Pollution Control Act, 35 Pa. Stat. Ann. §§ 4001-4015, and the federal Clean Air Act, 42 U.S.C. §§ 7401-7671q, major sources of air pollution require plan approvals to construct and then permits to operate.  “Minor” sources may emit under state-only permits.  The Pennsylvania regulations authorize the Pennsylvania Department of Environmental Protection to exempt certain emission sources from regulation.  25 Pa. Code § 127.14.  DEP’s Exemption 38 exempts natural gas wells under certain conditions.  DEP Air Quality Permit Exemptions, Doc. No. 275-2101-003 (Aug. 10, 2013).  The wells at issue here were exempt.  The compression station was below the emissions threshold for a state-only permit, and sought approval under what is a streamlined “general permit,” GP-5.

Under federal regulations, multiple emitting activities constitute a single aggregated source if: (i) they are within the same major industrial classification, (ii) are contiguous or adjacent, and (iii) are under the control of the same person or common control.  40 C.F.R. § 52.21(b)(6); see also Alabama v. Costle, 636 F.2d 323 (D.C. Cir. 1979).  In this case, Parent owned Subsidiaries A and B.  Subsidiary B owned Indirect Subsidiary C.  Subsidiary A owned and operated the wells.  Indirect Subsidiary C owned and operated the compression station.  DEP contended that this corporate relationship satisfied the “common control” prong of the aggregation test simply because the Parent had ownership of A and C.  The Environmental Hearing Board took a somewhat less categorical approach than DEP, but found control because the Parent had the power to “influence” the operations of A and C.

The Commonwealth Court reversed and remanded.  The test for “control” is the ability to direct operations of the facility, not just the ability to influence them.  Absent piercing the corporate veil, the court concluded that one corporate affiliate does not have the ability to direct operations of another merely because they are both owned (indirectly) by their parent, citing a federal Superfund case, United States v. Bestfoods, 541 U.S. 51 (1998).  The Indirect Subsidiary C would receive a permit for the compression station, but Subsidiary C could not direct Subsidiary A to operate A’s wells differently.  Neither Subsidiary A nor the Parent would be permittees.  Therefore, aggregation merely on the basis of the ability to influence operations, said the court, would not be correct.

To read the full opinion, please click here.

The EPA’s Call for Identification of Rules to be Changed Results in a Majority of Comments in Support of EPA Regulation

Posted in Clean Water Act, EPA, Water

We write to follow up on last month’s blog post, GT Alert, and webinar on the April 13 issuance of a federal register notice by the U.S. Environmental Protection Agency (EPA) calling for submissions to identify regulations for repeal, replacement, or modification. The agency set a 30-day timeframe for response.

Despite that tight timeframe, the agency received about 35,000 written comments by the deadline, not including comments received in response to public meetings that were held. From a review of the comments, it appears that an overwhelming majority of commenters asked that the agency leave regulations in place, with only a smaller number of comments from industry and trade associations that generally requested fairly modest, technical changes.

How the EPA will prioritize the relatively small number of comments requesting regulatory changes remains to be seen. Via a number of executive orders, the president has called on the agency to undertake a number of sizeable regulatory reforms, including to the Waters of the United States (WOTUS) Rule, which sought to define which waters are jurisdictional under the Clean Water Act, and to the Clean Power Plan (CPP), which imposed greenhouse gas budgets on existing power plants.

Given the protracted process and extensive public comment that presaged WOTUS and the CPP, it is difficult to imagine that the EPA will be issuing proposed replacement rules any time soon. Meanwhile, a separate executive order (E.O. 13771) requires agencies to repeal two regulations for each new regulation issued – and to insure that the net compliance costs associated with new regulations are zeroed out by compliance cost reductions coming from changes to existing rules. This requirement necessarily complicates the EPA’s rulemaking task, at a time when significant budget cuts and staff reductions have been proposed.

The EPA regulatory landscape is changing, but how fast remains to be seen.