D.C. Circuit Holds FERC Natural Gas Pipeline NEPA Review Must Consider Greenhouse Gas Emissions Impacts from Power Plants Served by Proposed Pipeline

Posted in Energy, FERC, Greenhouse Gas, GT Alert

Although there has been a significant shift with regard to climate change policy with the change of administrations, a recent decision at the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) makes clear that the National Environmental Policy Act or NEPA, enacted in 1970, remains an important weapon for those who seek to ensure that the climate change impacts of major federal actions are considered.  On Aug. 22, 2017, the D.C. Circuit held that the Federal Energy Regulatory Commission (FERC) failed to fully examine greenhouse gas impacts related to a pipeline project because the agency’s Environmental Impact Statement (EIS) for the project failed to consider the impacts from greenhouse gas emissions from the power plants to be served by the proposed pipeline.

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What You Need to Know About the Superfund Task Force’s Recommendations

Posted in CERCLA, EPA, Superfund

There are over 1,300 sites listed on the Environmental Protection Agency’s National Priorities List of contaminated sites that require cleanup, over a hundred of which are located in Pennsylvania. In May, EPA Administrator Scott Pruitt promised to get “hands-on” with the Superfund program in order to expedite the cleanup of contaminated sites around the country, with a focus on those NPL sites. As part of Pruitt’s strategy, he established a task force to provide recommendations on how to “restructure the cleanup process, realign incentives of all involved parties to remediate sites, encourage private investment in cleanups and sites and promote the revitalization of properties across the country.”

On July 25, Pruitt announced the task force’s recommendations. The 42 recommendations are wide-ranging and invite additional follow-up in many instances in the form of guidance and policy documents and the establishment of additional task groups. While the additional detail leaves us guessing for the moment on how Pruitt will execute many of these recommendations, several key themes emerge from the document.

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

Safe Drinking Water Act Does Not Preempt Flint Plaintiffs’ Section 1983 Claims

Posted in Contamination, Court Cases, Michigan, Water

On July 28, 2017 the Sixth Circuit Court of Appeals reversed two lower court rulings and remanded two cases pertaining to the lead-contaminated water crisis in Flint, Michigan, concluding that plaintiffs’ claims under 42 U.S.C. § 1983 for deprivation of their federal rights were not preempted by the Safe Drinking Water Act (SDWA) (Beatrice Boler, et al. v. Darnell Earley, et al., No. 16-1684 and Melissa Mays, et al. v. Rick Snyder, et al., No. 17-1144, 6th Cir., 2017 U.S. App. LEXIS 13691).

Plaintiffs, residents of Flint affected by contaminated city water, brought suit against various state and local officials and entities, alleging violation of their constitutional rights, pursuant to 42 U.S.C. § 1983, along with other claims. In Boler, the district court determined that the Plaintiffs’ § 1983 claims were preempted by the Safe Drinking Water Act (SDWA) and dismissed the case for lack of subject matter jurisdiction. Relying on its preemption analysis in Boler, the district court also dismissed the Mays case. The two cases were consolidated on appeal.

Plaintiffs allege that the defendants, who are all employees of the state of Michigan or the city of Flint, were acting under the color of law and “deliberately deprived” the class of the rights and guarantees secured by the 14th Amendment to the U.S. Constitution, in that they “deprived plaintiffs of life, liberty and property without due process of law when they took” safe drinking water and replaced it with “what they knew to be a highly toxic alternative solely for fiscal purposes.” Specifically, the plaintiffs alleged that the water provided from the Flint River contained high levels of lead.

On appeal, plaintiffs argued that the district court misapplied the standard enunciated by the Supreme Court in a line of cases that concluded with Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 252 (2009). In Fitzgerald, the Court explained the distinction between § 1983 claims premised on constitutional violations and those based on statutory violations in determining whether a § 1983 claim is precluded. “In those cases in which the § 1983 claim is based on a statutory right, evidence of such congressional intent may be found directly in the statute creating the right, or inferred from the statute’s creation of a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” Fitzgerald, 555 U.S. at 252. The Court in Fitzgerald then explained:

In cases in which the § 1983 claim alleges a constitutional violation, lack of congressional intent may be inferred from a comparison of the rights and protections of the statute and those existing under the Constitution. Where the contours of such rights and protections diverge in significant ways, it is not likely that Congress intended to displace § 1983 suits enforcing constitutional rights. Our conclusions regarding congressional intent can be confirmed by a statute’s context.

Id. at 252–53 (quotation marks and citations omitted).

In determining whether plaintiffs’ claims were preempted by the SDWA, the Sixth Circuit adhered closely to the framework set out in Fitzgerald. Accordingly, the Court began its analysis by finding that there is no clear inference from either the text of the statute or its legislative history that Congress intended for the SDWA’s remedial scheme to displace § 1983 suits enforcing constitutional rights. According to the Court, this in turn “informs our next step – evaluating the comprehensiveness of the remedial scheme provided by the statute.”  Op at 14.

Turning to the remedial scheme set out in the SDWA, the Sixth Circuit found that “the remedial schemes in the SDWA are not so comprehensive as to demonstrate congressional intent to preclude remedies under § 1983 for constitutional violations.” Op. at 17 The Court said: “The SDWA’s remedies are more limited than those generally available under § 1983, as the statute provides for injunctive relief only, not for recovery of damages or other monetary relief available to Plaintiffs with successful § 1983 claims. Though the statute contains a private right of action, it also includes a savings clause establishing that its private action does not restrict rights a person may exercise outside the SDWA. The availability of a private judicial remedy in the SDWA, moreover, does not conclusively establish congressional intent to preclude relief under § 1983.”  Op at 16.

This left the Court with the last consideration set out in Fitzgerald – a comparison of the substantive rights and protections of the SDWA to the protections provided by the relevant constitutional provisions. The Court concluded that there is no textual indication in the SDWA that Congress expressly chose to preempt § 1983 claims and that the provisions of the remedial scheme do not demonstrate such an intention. Accordingly, the Court found that the contours of the rights and protections found in the constitutional claims diverge from those provided by the SDWA such that it inferred a lack of congressional intention to foreclose § 1983 claims.

As a result, the Court found that the SDWA did not preclude plaintiffs § 1983 claims and reversed the district court’s dismissal of their Complaints on that basis.

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.