24 ELR 10719 | Environmental Law Reporter | copyright © 1994 | All rights reserved

The U.S. Supreme Court's 1993-1994 Term

Edward B. Sears

[24 ELR 10719]

The U.S. Supreme Court handled an all-time high of over 7,700 cases in the 1993-1994 Term.¹ The number and variety of environmental law cases on which the Court acted reflects this achievement. General numbers-counting analyses that estimate each Justice's political position as conservative, centrist, or liberal based on the Justices' voting patterns have concluded that the Court maintained a generally conservative stance.² The outcomes in some of the Court's significant environmental decisions, however, belie such appraisals.³

States and environmentalists won a case allowing a state agency to consider instream flow in addressing a state water quality certification application under § 401 of the Federal Water Pollution Control Act (FWPCA),⁴ and an environmental group won a case requiring that municipal solid waste incinerator combustion ash be treated as hazardous waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA).⁵ In other cases, the Court frustrated an industry attempt to recover attorneys fees incurred in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery action,⁶ a state's efforts to control or limit the amount of waste imported into the state,⁷ and municipalities' efforts to maintain flow control over garbage generated within their boundaries.⁸ In another case, the Court established a new two-step test to be applied in certain takings analyses.⁹ The federal government, industry, and citizen groups all faced setbacks when the Court denied petitions for certiorari in particular cases.

This Comment reviews the Supreme Court's activity involving environmental cases during the Court's 1993-1994 Term and discusses the practical implications of the Court's decisions for environmental law. The Comment also looks ahead to the 1994-1995 Term, assessing the effect the newest member of the Court, Associate Justice Stephen Breyer, will likely have on the Court's approach to environmental law cases.

Decisions

During the 1993-1994 Term, the Court denied review or dismissed appeals in roughly 51 cases involving environmental law and related fields, granted review in 4 such cases, and issued majority opinions in 6 "environmental law" cases.¹⁰ All of these actions will significantly affect how federal courts implement environmental law, but the six majority opinions raise the greatest immediate interest.

Three of the six opinions will directly affect the implementation of three major environmental statutes -- the FWPCA,¹¹ RCRA,¹² and CERCLA.¹³ Two other opinions directly address the power of the dormant Commerce Clause of the U.S. Constitution over state laws governing interstate transport of waste and local laws governing flow control of garbage. The sixth opinion concerns the scope of government activity in specific situations that does not constitute a Fifth Amendment taking.

FWPCA

* PUD No. 1 of Jefferson County v. Washington Department of Ecology.¹⁴ The Court addressed a contentious issue¹⁵ [24 ELR 10720] involving state authority under the FWPCA to protect the quality and quantity of water that flows in streams and rivers. In a 7-2 decision, for which Justice O'Connor wrote the majority opinion,¹⁶ the Court upheld the state of Washington's authority to include in a hydroelectric project's FWPCA § 401 certification minimum stream flow requirements insofar as necessary to enforce a designated use contained in state water quality standards adopted under FWPCA § 303. The state's Ecology Department deemed the requirements necessary to protect migrating fish in the Dosewallips River in the Olympic National Forest.

The issue was whether a state environmental agency may condition a § 401 certification for a hydroelectric project on the maintenance of a specific minimum stream flow to protect salmon and steelhead runs, or whether the state may only use certification conditions to restrict discharges into the water.

The Court first set out to discern the scope of state authority under § 401. The petitioners had argued that under § 401(a), the state may only impose water quality limitations that are specifically tied to a discharge, and that minimum stream flow was unrelated to any of the project's specific and expected discharges. The majority opinion suggested that this would be a "forceful argument" if the Court were to consider only § 401(a), since that subsection states that "discharges" must comply with the Act.¹⁷ Under § 401(d), however, § 401 certification requires that "any applicant" comply with "other limitations, under § 301 and 302" and "with 'any other appropriate requirement of State law.'"¹⁸ The ability to impose "other limitations" to ensure that applicants comply with the Act expands the scope of state authority under § 401, allowing states to ensure compliance with more than just "discharges."

Next the Court addressed the state's assertion that ensuring compliance with FWPCA § 303 is a proper function of § 401 certification. Section 303 authorizes states to adopt comprehensive water quality standards "which shall consist of designated uses of the navigable waters involved.…"¹⁹ The Court had to find a way to fit § 303 into "other limitations" and did so by reasoning that although § 401(d) does not list § 303 in its list of FWPCA sections that state certifications may implement, it does list FWPCA § 301, which incorporates § 303 by reference.²⁰ Thus, § 303 water quality standards are among the other limitations with which a state may ensure compliance through the § 401 process.

The Court then determined that the minimum flow requirement was an "'appropriate' requirement of State law" necessary to ensure compliance with state water quality standards.²¹ The Court reasoned that under § 303, state water quality standards include designated uses of the navigable waters involved,²² and a project that is inconsistent with a designated use does not comply with the state water quality standard. Because the state had determined that without the minimum stream flow requirement the hydroelectric project would be inconsistent with a designated use of the water -- as a fish habitat²³ -- the limitation was necessary to comply with the state water quality standards.

The Court further held that an instream flow condition is a proper application of the state and federal antidegradation regulations as it can help to ensure that an existing instream water use will be maintained and protected.²⁴ The Court rejected the argument that the FWPCA does not allow regulation of water quantity, since the Act's definition of pollution encompasses the effects of reduced water quantity. The Court also held that there was no conflict in this case between the state's exercise of § 401 authority and the licensing authority of the Federal Energy Regulatory Commission (FERC) because FERC had not yet acted on the petitioners' license application and the agency might eventually deny the application, since it is required to consider protection of fish habitat in deciding whether to issue a license.²⁵

Justice Thomas, joined by Justice Scalia, dissented. They argued that the FWPCA limits state authority in the certification process to ensuring that discharges from proposed facilities will comply with the FWPCA. They concluded that § 401(d) allows states to place conditions on a certification [24 ELR 10721] only if the conditions are related to discharges and that the majority's interpretation renders § 401(d) superfluous.²⁶ They also asserted that the decision upsets the balance between federal and state power struck by the FWPCA, which reserves consideration of stream flow requirements for fish and wildlife to FERC.²⁷

This decision has significant potential ramifications for recertification of existing hydroelectric facilities. FERC licenses are for durations of 30-50 years, and many large facilities that will be coming up for relicensing over the next 10 years will be subject to the § 401 certification process. It is conceivable that PUD No. 1 will make states less hesitant to impose minimum stream flow requirements on these older facilities.

The decision's impact is not limited to hydroelectric projects. The decision also applies to any applicant for a federal license for any activity that could result in discharges into navigable waters.

RCRA

* City of Chicago v. Environmental Defense Fund.²⁸ The Court in City of Chicago addressed an action that previously had bounced back and forth between the Seventh Circuit and the Supreme Court. On November 16, 1992, the U.S. Supreme Court vacated the Seventh Circuit's holding that ash from Chicago's municipal waste-to-energy incinerator had to be managed as hazardous waste if it exhibited hazardous characteristics.²⁹ The Court remanded the case for further consideration in light of a September 18, 1992, memorandum sent to regional U.S. Environmental Protection Agency (EPA) offices by then-Administrator Reilly that was meant to exempt the ash from regulation as hazardous waste under RCRA.

On January 12, 1993, the Seventh Circuit again ruled that municipal incinerator ash must be managed as hazardous waste if it exhibits hazardous characteristics.³⁰ The court held that it was not persuaded by EPA's policy statement, finding that it only restated arguments the court had previously rejected.

City of Chicago provided the Supreme Court with an opportunity to resolve the discrepancy between the Seventh Circuit's ruling and a prior Second Circuit ruling.³¹ The confusion stemmed from an exemption to RCRA's hazardous waste regulations. Under RCRA § 3001(i), facilities that recover energy by incinerating household wastes and nonhazardous solid waste from commercial or industrial sources are not "deemed to be treating, storing, disposing of, or otherwise managing hazardous waste" under RCRA.³² Although burning solid municipal waste may produce ash that exhibits hazardous waste characteristics, it was unclear if § 3001(i) exempted the ash from such regulation.

In a 7-2 decision with Justice Scalia writing for the majority, the Court ruled that § 3001(i) does not exempt from RCRA Subtitle C regulation municipal waste combustion ash that is sufficiently toxic to qualify as hazardous waste. The majority determined that the plain meaning of the section³³ does not exempt the ash from Subtitle C regulation. Rather, § 3001(i) exempts qualifying facilities from Subtitle C regulation.³⁴ However, the creation of ash by incinerating municipal waste may constitute generation of hazardous waste, and the section does not contain an exemption for the ash generated by such incineration.

The majority reasoned that "[e]ach of the three specific terms used in § 3001(i) -- 'treating,' 'storing,' and 'disposing of'" -- is separately defined by RCRA, and none covers the production of hazardous waste.³⁵ Also, the term "otherwise managing" is defined to mean "just about every hazardous waste-related activity except generation." In light of this distinction and RCRA § 1003(b)'s declaration of policy that waste that is generated be treated, stored, or disposed of so as to minimize present and future threats to human health and the environment,³⁶ the Court refused to interpret RCRA to allow municipal waste combustion ash sufficiently toxic to qualify as hazardous waste to be disposed of in ordinary landfills. The Court rejected the government's plea for deference to EPA's interpretation of the exemption, given the explicit terms of the statutory language.³⁷ The Court's decision will force new, stringent standards on incinerator operations that handle household wastes, and it may have serious financial ramifications for cash-strapped municipalities.³⁸

In dissenting, Justice Stevens, joined by Justice O'Connor, examined the relevant pre-1984 law and the statute as amended and found the relevant statutory text ambiguous. They looked to EPA's interpretation and argued that it was a correct and permissible interpretation of the Agency's broad congressional mandate. They also disagreed with "the majority's refusal to attach significance to 'a single word in a committee report,' … which reveals [24 ELR 10722] [on the part of the majority] either a misunderstanding of, or a lack of respect for, the function of legislative committees."³⁹

In implementing the Court's decision, EPA met with a wide variety of stakeholders to share ideas for the guidance EPA must give to states in implementing the decision. In late May 1994, EPA set in motion a schedule for regulatory changes to implement the decision. By August 1994, municipal solid waste incinerator operators had to begin testing their ash for toxicity levels before disposing of it to determine the type of treatment or disposal it warrants.⁴⁰ By November 1994, operators whose ash tested positive for hazardous constituents must have applied for a hazardous waste operating permit.⁴¹ EPA is seeking public comments on its draft guidance on how to sample and analyze municipal solid waste combustion ash.⁴²

EPA is also working to develop land disposal restrictions that are specific to ash that tests hazardous. These restrictions must be proposed six months from the date EPA issued its guidelines. Under this approach, the ash will be considered a newly identified hazardous waste and will have to meet certain treatment standards under the land-ban program to decrease or remove hazardous characteristics before it can be disposed of in landfills.

In response to this agency activity, a coalition of industry groups filed suit August 22, 1994, in the D.C. Circuit to protect municipal waste combustion facilities from RCRA requirements.⁴³ The petition for review states that while the Supreme Court "stressed that … RCRA § 3001(i) subjects resource recovery facilities to regulation 'in [their] capacity as a generator of hazardous waste' (114 S. Ct. at 1592 (emphasis in original)), it does not subject resource recovery facilities 'to the potentially enormous expense of managing ash residue as a hazardous waste' (id. at 1593 (emphasis added))." The petition also questions the applicability of EPA's toxicity characteristic test to municipal waste combustion ash, and it alleges that the new ash requirements are arbitrary and capricious or were promulgated in violation of the Administrative Procedure Act.

* Key Tronic Corp. v. United States.⁴⁴ At issue in Key Tronic was the availability of attorneys fees in a private CERCLA cost recovery action.⁴⁵ Petitioner had been responsible for cleaning up a landfill and, after settling a lawsuit that EPA brought, it sued the U.S. Air Force and other potentially responsible parties seeking contribution to a $ 4.2 million commitment it made to EPA in the settlement, and $ 1.2 million for response costs. The response cost claim included attorneys fees for three types of legal services: Prosecution of the lawsuit, the identification of parties potentially liable for the cleanup, and preparation and negotiation of a settlement agreement with EPA.

The Court ruled 6-3 that private litigants' attorneys fees incurred in bringing a cost recovery action generally are not recoverable under CERCLA § 107. Justice Stevens' majority opinion first set forth the American Rule for attorneys fees -- "attorneys fees generally are not recoverable costs of litigation 'absent explicit congressional authorization.'"⁴⁶ Addressing the availability of fees incurred in bringing the lawsuit, the Court held that § 107 does not provide for the award of private litigants' attorneys fees associated with bringing a cost recovery action.

The Court advanced three reasons for its conclusion. First, although § 107 "unquestionably provides a cause of action for private parties to seek recovery of cleanup costs, that cause of action is not explicitly set out in the text of the statute."⁴⁷ Second, although Congress explicitly authorized recovery of attorneys fees in other sections of CERCLA, its failure to do so in §§ 107 and 113 "strongly suggest[s] a deliberate decision not to authorize such awards."⁴⁸ And third, "it would stretch the plain terms of the phrase 'enforcement activities' [under CERCLA § 101(25)] too far" to say that they encompass a private party's action to recover cleanup costs from other potentially responsible parties.⁴⁹ The phrase "enforcement activities" is not sufficiently explicit to include a private § 107 action for cleanup costs.

The Court did rule, however, that legal work that is "closely tied to the actual cleanup may constitute a necessary cost of response in and of itself.…"⁵⁰ Fees incurred in identifying other potentially responsible parties fall into this category because they are not incurred in the pursuit of litigation. The search for such parties "significantly benefitted the entire cleanup effort and served a statutory purpose apart from the reallocation of costs."⁵¹

The Court also held that attorneys fees incurred in connection with the negotiation of a consent decree with EPA are not "necessary costs of response."⁵² Although they may [24 ELR 10723] have aided EPA and affected the cleanup's scope and form, they must be viewed as primarily protecting the private litigants' interests as defendants.

Justice Scalia dissented, joined by Justices Thomas and Blackmun.⁵³ They also relied on the plain language of the relevant sections, but argued that the plain language of §§ 107(a)(4)(A)-(B) and 101(25) entitles a private litigant to the costs associated with bringing a § 107(a)(4)(B) cost recovery action. Sections 107(a)(4)(A) and (B) provide that those covered shall be liable for all removal or remedial costs the United States incurs and any other necessary costs of "response" any other person incurs, and § 101(25) defines "response" to include enforcement activities. According to the dissent, a § 107(a)(4)(B) action is the only enforcement activity a private litigant can conduct, and attorneys fees are a major portion of those costs.

The decision resolves an issue that has been the subject of much litigation.⁵⁴ The ruling against attorneys fees may not decrease the amount of, or shorten, future Superfund litigation. Usually, the availability of attorneys fees is an incentive for legal action. Thus, where attorneys fees are not available, one might expect less litigation. In the case of Superfund, however, where cleanup costs are often exorbitant, parties seeking contribution may often need no further incentive to bring a contribution action. The Court's decision, however, may negatively effect prospects for settlement of some CERCLA actions. In CERCLA cases, attorneys fees may reach enormous proportions, and were plaintiffs allowed to recover fees, private-party defendants might have been encouraged to settle and clean up voluntarily.⁵⁵

Commerce Clause

* Oregon Waste Systems, Inc. v. Oregon Department of Environmental Quality.⁵⁶ The Supreme Court has consistently determined that waste shipment is part of interstate commerce and has struck down most state attempts to block waste shipment, especially when the measures are merely economic and protectionist.⁵⁷ In Oregon Waste Systems, the Court faced another such law and the argument that "a differential surcharge might be valid if based on the costs of disposing of waste from other States."⁵⁸ In a 7-2 decision, for which Justice Thomas penned the majority opinion, the Court ruled that the state of Oregon's imposition of a $ 2.25 per ton surcharge on the in-state disposal of solid waste generated in other states that was nearly three times greater than the $ 0.85 per ton charge imposed on the disposal of waste generated within Oregon violated the Commerce Clause of the U.S. Constitution.

The state had levied fees on landfill operators and an additional surcharge on "every person who disposes of solid waste generated out-of-state in a disposal site or regional disposal site."⁵⁹ The surcharge was "based on the costs to … Oregon … of disposing of solid waste generated out-of-state."⁶⁰

Analyzing the law under the Commerce Clause, the Court first analyzed whether the law regulated evenhandedly with only incidental effects on interstate commerce, or discriminated against interstate commerce. If the surcharge were discriminatory, a virtually per se rule of invalidity applied, and if it was not discriminatory, the Court would employ a balancing test that examined whether the burden the surcharge imposed on commerce was excessive in relation to the putative local benefits. Using discrimination to mean differential treatment of in-state and out-of-state interests, the Court held that the surcharge was facially discriminatory. Because discriminatory restrictions on interstate commerce are per se invalid, the Court held the law invalid. The Court rejected the state's arguments that the surcharge was nondiscriminatory since the surcharge was intended merely to recoup the costs of disposing of out-of-state waste in Oregon. The Court stated that a law's justification has no bearing on whether it is facially discriminatory.

The Court next had to determine whether the discriminatory surcharge served a legitimate state interest for which no less discriminatory alternatives could serve. The state sought to justify the surcharge by arguing that the surcharge was a compensatory tax used to make shippers of waste pay their fair share of the costs waste disposal imposed on the state.⁶¹ Under Supreme Court jurisprudence, a compensatory tax is valid if it satisfies a two-pronged test. First, the state must exact through the tax no more than its fair share of the costs imposed on Oregon by the disposal of out-of-state waste. Second, the tax must be imposed on [24 ELR 10724] in-state and out-of-state commerce involving substantially equivalent events.

As to the first prong, the Court determined that the fee Oregon imposed for the disposal of out-of-state waste was not even roughly comparable to the fee on in-state disposal. The state could not identify a specific charge on intrastate commerce equal to or exceeding the surcharge. The state also failed the second prong, because to the extent in-staters' portion of costs was paid in part by state funds derived from income and other taxes, the charges were not imposed on substantially equivalent events. Oregon could not justify the surcharge on the ground that Oregon had valid interests in spreading the costs of disposal of Oregon waste, but not of out-of-state waste, to all its citizens. The Court found this attempted justification to be veiled economic protectionism. Moreover, the Court rejected the argument that the landfill is a natural resource and that states have a right to give their respective citizens a preferred right of access. Assuming a landfill was a natural resource, the Court held that citizens of that state have no preferred right of access over other consumers. The Court distinguished a case in which the Court held that a state may grant a "limited preference" for its citizens in the use of groundwater.⁶² Water, unlike landfill space, is essential for human survival.

In dissenting, Chief Justice Rehnquist and Justice Blackmun argued that the surcharge could be upheld as a compensatory fee. They asserted that the fee was a compensatory tax because in-state producers of solid waste support the Oregon regulatory program through state income taxes and by paying, indirectly, the numerous fees imposed on landfill operators and the dumping fee on in-state waste. The dissenters complained that the majority opinion leaves states with two options, "become a dumper and ship as much waste as possible to a less populated State, or become a dumpee, and … accept waste from more densely populated States."⁶³

There has been a tremendous decrease in the amount of active landfill space available,⁶⁴ and for some communities, the only viable option is to ship out the trash while they formulate plans for long-range solutions. But as Oregon's law proved, the trash is not always welcome. States want to preserve what little landfill space they have. Although the Court did not find Oregon's fee an acceptable compensatory tax, the decision does not appear to foreclose the possibility that a state might be able to formulate a compensatory tax that survives Supreme Court analysis.

As a result of the Oregon Waste Systems decision, states and communities that are hosts to large landfills have solicited the help of Congress so that they might have more say in controlling the level of imports they must receive. In response, members of Congress have developed proposed legislation that seems to capture the state and local governments' sentiment, giving state or local authorities power to enter into contracts to accept, limit, or ban waste shipments.⁶⁵

Legislation that restricts interstate waste trade, however, would erase the victory consumers indirectly won in Oregon Waste Systems. The decision is a victory for consumers because it keeps open the market for environmentally protective waste management. As federal landfill regulations eliminate poorly constructed and operated dumps throughout the nation, larger landfills are being built to take advantage of economies of scale that make extensive, legally required environmental controls affordable. Bigger, more regional landfills may be able to serve areas that cross state borders. By bucking environmental trends that favor bigger, better regional landfills, legislation that restricts or prohibits interstate waste transport could increase the costs of landfills and require more landfills, for example one on each side of a state border. Moreover, if a municipally owned waste-management facility loses out-of-state business, waste-management costs could increase.

* C&A Carbone, Inc. v. Town of Clarkstown.⁶⁶ As municipalities built expensive waste disposal facilities, they found that to operate them economically they would have to guarantee a steady flow of garbage to process. One method that municipalities use to provide this guarantee is waste flow control, by which garbage is directed by ordinance to designated facilities.⁶⁷ By hoarding the garbage, municipalities capture the fees for disposing of the garbage. Such flow control laws assure the economic viability of these expensive plants by guaranteeing that they will generate the revenue needed to pay off billions of dollars in municipal bonds that cities have issued to finance their construction.

In C&A Carbone, Clarkstown directed by ordinance that all acceptable waste found within its borders be sent to a town-sponsored waste transfer station that would separate recyclable from nonrecyclable waste. The ordinance prevented everyone except the favored local operator from performing the initial processing step. To finance the facility, the operator was authorized to charge tipping fees to users in excess of private market rates. The ordinance and tipping fees applied to a waste handler whose business involved receiving, processing, and exporting waste for out-of-state disposal, and it challenged the ordinance's constitutionality.

The Supreme Court, in a 6-3 vote, ruled that the ordinance violated the Commerce Clause. Writing for the majority, Justice Kennedy applied a dormant Commerce Clause [24 ELR 10725] analysis. First he determined that although the immediate effect of the ordinance was to direct local transport of solid waste to a designated site within the local jurisdiction, its economic effects were interstate in reach. The ordinance burdened interstate commerce by driving up the costs for out-of-state interests to dispose of their solid waste by having them send the nonrecyclable portion of this waste to the transfer station at an additional cost. Also, the ordinance deprived competitors, including out-of-state firms, of access to a local market.⁶⁸ The Court held that the ordinance discriminated against interstate commerce because it allowed only the favored operator to process waste that was within the town's limits. As a facially discriminatory measure, the law was per se invalid.

The majority stated that the ordinance did not fit the narrow exception to per se invalidity that is available where "the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest."⁶⁹ Nondiscriminatory alternatives were available for addressing the health and environmental problems that allegedly justified the ordinance. The town could not justify the ordinance as a way to steer solid waste away from out-of-town disposal sites that it might deem harmful to the environment, because that would extend its police power beyond its limits. Nor could the town justify the ordinance as a financing measure necessary to ensure the long-term survival of the designated facility, because the town could subsidize the facility through general taxes and municipal bonds.

In a concurring opinion, Justice O'Connor arrived at the same conclusion through different reasoning. She did not find the ordinance facially discriminatory. Therefore, she applied the balancing test applicable to laws that regulate evenhandedly and impose only incidental burdens on interstate commerce. She stated that the ordinance imposed "an excessive burden on interstate commerce when considered in relation to the local benefits conferred."⁷⁰ Although the ordinance was not discriminatory in that it did not treat local interests more favorably than out-of-state interests, it did create a monopoly at the expense of all competitors and, therefore, violated the Commerce Clause.

Justice Souter dissented, joined by Justice Blackmun and Chief Justice Rehnquist. They maintained that the ordinance was not discriminatory in ways the Court has found other laws discriminatory, because the ordinance favored a single processor, not a class of businesses, and the one processor it favored was essentially an agent of the government. Contrary to the Court's case law and interstate commerce jurisprudence, which deals with laws benefitting local private entities at the expense of nonlocal economic interests, the ordinance here aided a local government in satisfying a traditional government responsibility. Moreover, the law was not discriminatory because it imposed equal burdens on interstate and intrastate commerce.

This decision and others⁷¹ have fueled efforts in Congress to give localities flow control authority through legislation.⁷² The U.S. House of Representatives approved a bill that would give state and local governments authority to direct and regulate the transportation of municipal solid waste, and designate waste facilities to which municipal solid waste must be sent.⁷³ The measure is meant to make it easier for local governments to implement state waste management plans.

Takings

* Dolan v. City of Tigard.⁷⁴ On the last day of the 1993-1994 Term, the Supreme Court issued a decision that protects property rights and calls into question land use restrictions at the local, state, and federal levels. In a 5-4 decision for which Chief Justice Rehnquist wrote the majority opinion, the Court held that a city's exaction of land dedications as a condition to issuing a development permit is not an uncompensated taking in violation of the Fifth Amendment to the U.S. Constitution unless the city shows the existence of an essential nexus between a legitimate state interest and the permit condition and makes an individualized determination of "rough proportionality" between the condition and its impact on the proposed project.

The Court defined a two-step analysis for determining rough proportionality in exaction cases. In the first step, courts must determine whether an "essential nexus" exists between the "legitimate state interest" and the permit condition exacted by the city.⁷⁵ The Court found the required nexus in the city's conditioning of the approval of a property owner's application to expand her store and pave her parking lot upon her dedication of a portion of her land for improvement of a storm drainage system along a creek and for a pedestrian/bicycle pathway.

In the second step, courts must determine "whether the degree of the exactions demanded … bear the required relationship to the projected impact of [the] proposed development."⁷⁶ The Court adopted a test for this determination that requires a "rough proportionality," which does not require a precise mathematical calculation. According to the majority opinion, this term "best encapsulates what [is required by] the Fifth Amendment."⁷⁷

[24 ELR 10726]

The Court ruled that neither of the conditions met the rough proportionality test. The Court remanded the action for further proceedings, however, to allow the city to quantify the offsetting decrease in automobile traffic that a bike path would produce and explain why the floodplain had to be dedicated to the city. The Court held that the city must make an individualized determination that the required dedication was related in nature and extent to the proposed development's impact.

Justice Stevens, joined in dissent by Justices Blackmun and Ginsburg, accused the majority of "abandoning the traditional presumption of constitutionality and imposing a novel burden of proof" on land use planners.⁷⁸ Historically, judicial review of land use regulation gives conditions a "strong presumption" of validity, but Dolan removes from the party challenging the constitutionality of the state's action the burden of demonstrating that a condition unnecessarily reduces the economic value of the proposed improvements. Justice Stevens also stressed that public interest must outweight the private interest of commercial entrepreneurs.

The decision is significant for several reasons. First, the Court concluded that a compensable regulatory taking can occur even when the government has not denied a property owner economically viable use of some of its property. Indeed, under Dolan, a court could still find a compensable taking if the owner were able, even with the exactions imposed, to generate more profits from its remaining property. Second, the decision places the burden on the government to justify the exactions rather than on the owner to prove they are arbitrary.⁷⁹ The shift will require local planning commissions and boards to use greater care in explaining the reasons for particular exactions.

Third, the Court's "rough proportionality" test will force regulators to make site specific findings and to demonstrate that the effects it seeks to have the conditions ameliorate are limited to effects that the particular owner's proposed use will cause. In other words, the condition should not be based on generalized findings of environmental impact caused by development in the area. Governments, of course, can avoid the problem altogether by simply denying the permit application -- an unlikely scenario given most municipalities' desire to attract and retain businesses. Alternatively, governments will simply have to show more clearly how developing a property in a particular way will affect the public good, and how required exactions or mitigation measures relate proportionally to those impacts.

Fourth, this decision may further fuel the property rights movement and create more litigation. Language in the decision indicates that the Court does not consider property rights a second-class right.⁸⁰

Though some were quick to claim that Dolan will have profound ramifications on cases involving denials of FWPCA § 404 dredge-and-fill permits, the question remains whether the principle enunciated will in fact apply to conservation easements and mitigation requirements typically mandated by federal and state governments for wetland development. It would seem that the type of land use regulations in such projects differ in at least two important ways from the permit and conditions at issue in Dolan. First, wetland permit denials generally involve legislative determinations classifying entire areas as subject to regulation, whereas in Dolan the city made an adjudicative decision to impose conditions on petitioner's building permit. Second, the conditions the city imposed were not merely limits on the use the owner should make of her property, but actually required that she deed by easementportions of her property to the city, which would open the property to public access. Federal wetlands permit decisions do not involve requirements for public access. Even if courts do consider the regulatory actions to be similar to the exactions in Dolan, regulatory agencies should be able to respond to the "essential nexus" questions by relying on court-recognized importance of wetlands to groundwater discharge, flood control, and wildlife habitat.

Cases for Which the Court Denied Petitions for Certiorari

When the Supreme Court denies a petition for certiorari, that decision can have a significant impact on the law, though decisions on whether to grant review typically invoke less intrigue. The Court declined to hear roughly 51 environmental suits during the 1993-1994 Term. This section reviews some of the more important of these cases.

RCRA and CERCLA -- Cleanup Authority, Liability, and Costs

* United States v. Colorado.⁸¹ The federal government, which was conducting a CERCLA remedial investigation/feasibility study (RI/FS), sought to avoid having to comply with a state-issued compliance order. Colorado had issued the order against the U.S. Army at the federally owned Rocky Mountain Arsenal site in Colorado pursuant to the Colorado Hazardous Waste Management Act, which EPA had authorized Colorado to implement in lieu of RCRA. The Tenth Circuit reversed a district court ruling that CERCLA § 113(h)'s preenforcement review bar prohibits a state from enforcing hazardous waste regulations that implement RCRA at a federal facility that EPA listed on the national priorities list.

The Tenth Circuit's decision is significant for states because it clarifies their continuing authority over EPA-regulated hazardous waste sites.⁸² The case is also significant for the federal government, which must now comply with both CERCLA and RCRA at federally owned Superfund sites. Finally, the case is significant for private parties who, had the federal government prevailed, would arguably [24 ELR 10727] have been exempt from regulation under EPA-approved state hazardous waste programs during CERCLA RI/FS processes.

* Arkansas Peace Center v. Arkansas Department of Pollution Control & Ecology.⁸³ This case concerned CERCLA § 113(h) and the issue of when citizens can sue to stop Superfund cleanups. Citizens had brought a RCRA citizen suit alleging imminent health threats from EPA-approved incineration of waste containing dioxin at the Vertac site in Arkansas. A district court granted the citizens' request for an injunction preventing the incineration, and the Eighth Circuit stayed that order because the incineration was part of an ongoing CERCLA removal action for which CERCLA § 113(h) bars review.

* Advance Chemical Co. v. United States.⁸⁴ The Courtlet stand a decision that limits the right of Superfund defendants to challenge government cost recovery claims. Liable parties had sought review of a Tenth Circuit ruling that private parties can never contest costs the government incurs in Superfund cleanups as wasteful, unreasonable, and unlawful, but may only challenge whether the cleanup was consistent with the national contingency plan (NCP). The "only way a responsible party can escape liability for the government's costs incurred at a particular site is to demonstrate that the government's response actions … underlying the costs, are inconsistent with the NCP."⁸⁵ The decision does not preclude parties from arguing that the cleanup was inappropriate or unlawful under the NCP.

Federal Insecticide, Fungicide, and Rodenticide Act Preemption

* Arkansas-Platte & Gulf Partnership v. Dow Chemical Co.⁸⁶ The Tenth Circuit ruled that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)⁸⁷ impliedly preempts landowners' Colorado state-law tort claims against pesticide manufacturers for inadequate labeling and failure-to-warn of environmental harm. The landowners alleged that the labels should have included additional warnings other than those required under FIFRA. The Supreme Court had considered the action in October 1992, and remanded it for further proceedings in light of its June 1992, ruling in Cipollone v. Liggett Group, Inc.⁸⁸ On remand, the Tenth Circuit adhered to its previous opinion, this time holding that FIFRA expressly preempts the landowners' state-law tort claims to the extent the claims require a showing that defendants' labelling and packaging should have included warnings other than those required under FIFRA.⁸⁹

* Papas v. Zoecon.⁹⁰ The Eleventh Circuit had held that FIFRA § 136v impliedly preempts state common-law tort claims against a pesticide manufacturer for inadequate labeling because the federal government occupies the entire field of pesticides labeling regulation, leaving no room for the states to supplement federal law, even by means of state common-law tort actions. The Supreme Court vacated and remanded in light of Cipollone, and the Eleventh Circuit held that § 136v expressly preempts state common-law claims to the extent that the state-law actions are predicated on claims of inadequate labeling or packaging.

* King v. E. I. Dupont de Nemours & Co.⁹¹ The First Circuit held that in light of Cipollone, FIFRA preempts state-law tort claims based on the alleged failure of herbicide manufacturers to provide adequate warnings on their products' labels about the health hazards of the herbicides they manufactured and sold. The First Circuit noted that its decision accorded with both the Eleventh Circuit's postremand decision in Papas and the Tenth Circuit's postremand decision in Arkansas-Platte & Gulf Partnership.

* Parkins v. Mobay Corp.⁹² The Eleventh Circuit held that prior case law holding that FIFRA impliedly preempts state-law tort suits against pesticide manufacturers for inadequate labeling of EPA-registered pesticides precludes claims that a pesticide manufacturer inadequately labeled a product by failing to include a warning about the product's dangers.

Clean Air Act -- Civil Liability

* Walsh v. United States.⁹³ Addressing civil liability under the Clean Air Act (CAA), the Ninth Circuit held that an on-site superintendent with "substantial control" over asbestos removal projects could be liable as an "operator" of the projects for violations of CAA § 112.⁹⁴ The defendant was clearly in substantial control of the projects, having held himself out as [24 ELR 10728] being in charge of them. The court also held that the superintendent's violations of the work practice standards for demolition and renovation projects involving asbestos constituted emissions under § 112(c)(1)(B).⁹⁵ The petition challenged both the CAA's review preclusion provisions as unconstitutional as applied to the defendant, who claimed that the asbestos regulations should not apply to him, and the Act's ban on legal challenges to hazardous air pollutant emissions regulations more than 60 days after they are promulgated.

Clean Air Act -- EPA's Regulatory Authority

* Central Arizona Water Conservation District v. U.S. Environmental Protection Agency.⁹⁶ This case raised the question of whether EPA exceeded its regulatory authority by requiring an Arizona power plant to reduce sulfur dioxide emissions by 90 percent in order to reduce visible haze over the Grand Canyon. Under the Act, EPA must promulgate regulations to assure reasonable progress toward reducing visibility impairment in national parks and other wilderness areas. EPA adopted a two-phased approach to visibility protection. In Phase I, EPA would address impairment reasonably attributable to one source or a small group of sources. In Phase II, EPA would direct its regulation at regional haze. EPA deferred Phase II due to the complexity as well as the scientific and technical limitations in identifying broad-scale visibility impairment until a date at which better tracing techniques are developed and acceptable.

The Ninth Circuit upheld EPA's Phase I visibility regulations promulgated under § 169A.⁹⁷ The Ninth Circuit ruled that EPA was not trying to regulate regional haze but rather was exercising its authority to decide whether visibility impairment was attributable to a source, the power plant. The administrative record adequately supported EPA's conclusion that visibility impairment in the Grand Canyon is reasonably attributable to the plant, and the court deferred to EPA's interpretation of its own regulations and statutory mandate.

FWPCA -- "Point Source" Construed

* United States v. Villegas.⁹⁸ The Second Circuit ruled that a human being is not a point source under FWPCA § 301,⁹⁹ overturning the conviction of a co-owner and vice president of a laboratory for knowingly discharging pollutants into navigable waters in violation of §§ 301(a) and 309(c)(2).¹⁰⁰ The individual had placed vials containing human blood into the Hudson River. The Second Circuit reasoned that Congress did not intend the Act to impose criminal liability on an individual for "the myriad acts of waste disposal, including a passerby who flings a candy wrapper into a river, or a urinating swimmer."¹⁰¹ Also, "point source" is comprehensible only if held to the context of industrial and municipal discharges.

By arguably incorporating an industrial or municipal pollution requirement into the definition of "point source" in FWPCA § 502(14),¹⁰² the decision may have narrowed the scope of FWPCA prohibition against unpermitted discharges. Certainly an individual could constitute a discrete conveyance, as opposed to a diffuse, or nonpoint, source, which has been exempt from FWPCA permit requirements. Thus, there would appear to be a loophole for "an army of men and women throwing industrial waste from trucks into a stream."¹⁰³ Following the Supreme Court's denial of the federal government's petition for certiorari in this case, legislative amendment to the FWPCA is probably the best way to close this loophole.

FWPCA -- Whistleblower Provision

* Passaic Valley Sewerage Commissioners v. U.S. Department of Labor.¹⁰⁴ The Third Circuit held that an employee's intracorporate complaints regarding the corporation's operating practices are protected under FWPCA § 507(a), the Act's whistleblower provision.¹⁰⁵ The court held that its interpretation of the section comports with the broad remedial purpose of the FWPCA. The court interpreted the term "proceeding" in § 507(a),¹⁰⁶ as it applied to the proceeding the employee initiated, to "allow, and even necessitate, extension of the term 'proceeding' to [include] intracorporate complaints."¹⁰⁷ Although the decision may compromise the "ability of management to exercise broad discretion in the regulation of employer/employee relations,"¹⁰⁸ it reinforces the provision's goal that employees be encouraged "to aid in the enforcement of [the FWPCA] by raising substantiated claims through protected procedural channels."¹⁰⁹

FWPCA -- Wetlands

* Pozsgai v. United States.¹¹⁰ The Supreme Court ended a long-running court battle between the United States and a husband and wife team that was accused of discharging fill material into wetlands without an FWPCA § 404¹¹¹ [24 ELR 10729] permit when it denied review of this case. The Third Circuit had most recently upheld a district court's judgment finding the couple strictly liable under the FWPCA. The action is significant for its § 404 enforcement implications and its affirmation of definitional interpretations of several terms critical to § 404 permit enforcement actions. The materials that defendants discharged constituted "pollutants," because the term, as defined in FWPCA § 502(6),¹¹² includes the constituents of the defendants' fill material. The filling activities constituted "discharge into water" because the phrase "navigable waters" in the definition of "discharge of a pollutant" governs the more general phrase "into water" appearing in the FWPCA definition of "pollutant."¹¹³ The Fifth Circuit also pointed out that the U.S. Supreme Court has upheld the U.S. Army Corps of Engineers' definition of "navigable waters" as including wetlands.

FWPCA -- Federal Employee Protection From Liability

* Curtis v. United States.¹¹⁴ The Ninth Circuit upheld the criminal conviction of a U.S. Navy employee acting within the course and scope of his federal employment for violating the FWPCA by knowingly discharging jet fuel into U.S. surface waters. The court noted that FWPCA § 502(5)¹¹⁵ does not include the United States among the entities who may be liable under its definition of "person." Nonetheless, Congress' failure to include federal employees specifically within the definition of "person" in FWPCA §§ 309(c)(6)¹¹⁶ and 502(5) does not demonstrate congressional intent not to subject such persons to criminal liability, despite FWPCA § 313(a)'s¹¹⁷ specific exclusion of federal employees acting within the scope of their employment from civil liability.

FWPCA -- Preemption

* Washington Suburban Sanitary Commission v. CAE-Link Corp.¹¹⁸ The Maryland Supreme Court ruled that emergency federal court orders issued pursuant to the FWPCA did not preempt Maryland's common law on strict liability and nuisance.¹¹⁹ Thus, a state agency that operated a sewage sludge composting facility that a federal court had ordered it to build could be held strictly liable for creating a nuisance that interfered with neighboring landowners' use and enjoyment of their property. The court held that the FWPCA's citizen suit savings clause preserved state-law remedies to the extent that the action did not otherwise thwart an FWPCA goal. The court found no preemption because the conflict between the state and federal laws did not make compliance with both a physical impossibility.¹²⁰ The agency, which was carrying out those orders in good faith and without negligence, either had to comply with the court order and possibly face a nuisance suit, or ignore the court order and be faced with sanctions.

Equal Access to Justice Act -- Attorneys Fees

* Roanoke River Basin Ass'n v. Hudson.¹²¹ This case raised the issue of how broad a court's focus should be in determining whether the federal government's position in litigation was "substantially justified" for purposes of awarding attorneys fees under the Equal Access to Justice Act (EAJA).¹²² The Fourth Circuit affirmed a district court's denial of attorneys fees to a party prevailing on at least one significant issue in that party's otherwise unsuccessful attempt to block issuance of a permit to the city of Virginia Beach for the construction of a potable water pipeline. The Fourth Circuit reasoned that the government's entire position in the litigation was substantially justified.

The Fourth Circuit ruled that in determining whether the government's position is substantially justified for purposes of addressing a prevailing party's EAJA fee-award claim, a court must look beyond the issue on which the party prevailed to determine, "from the totality of the circumstances, whether the government acted reasonably in causing the litigation or in taking a particular stance during the litigation."¹²³ The court also ruled that a court must look to the entire litigation, rather than conduct an issue-by-issue analysis. The court held that the two prongs of the EAJA attorneys fees analysis -- "prevailing party" and "substantially justified" -- were not intended to be so closely linked. The court noted that it could rule that a party prevailed on one issue in litigation, but then not focus on that specific issue when determining whether the government's position was substantially justified.

Bankruptcy

The Supreme Court denied certiorari in three cases involving the intersection of environmental law and bankruptcy law. The overlap of these areas of law is recognized to be problematic due to the opposite objectives of the Bankruptcy Code and federal and state environmental law.¹²⁴ Environmental [24 ELR 10730] laws are meant to urge corporations to keep a clean and safe work environment in connection with theirbusiness activities and, when appropriate, to compel companies to bear the costs associated with that objective. The primary objective of the Bankruptcy Code is to provide distressed entities with a forum in which they can be rehabilitated so as to contribute to the gross domestic product and to promote employment, by allowing them to restructure certain debts and eliminate others by discharging all or a portion of their obligations that existed before their plan is confirmed. The discharge conferred by the Bankruptcy Code promotes the policy objective of providing debtors with a fresh start.

* Torwico Electronics, Inc. v. New Jersey Department of Environmental Protection.¹²⁵ The Third Circuit held that a state agency's attempt to force a Chapter 11 debtor to clean up a waste site that it no longer possessed but to which it had access and that posed an ongoing hazard was not a dischargeable "claim" for purposes of bankruptcy, and that the debtor was therefore responsible for cleaning up the site. The court reasoned that the debtor's obligations ran with the waste and constituted an affirmative duty to perform a cleanup rather than a monetary obligation. The decision may limit a distressed entity's ability to reorganize under Chapter 11 of the Bankruptcy Code, preventing it from getting a fresh start.

* Kahn v. Juniper Development Group (In re Hemingway Transport, Inc.).¹²⁶ The First Circuit held that a co-debtor's contingent contribution claim for future response costs under CERCLA against the estate of parent and subsidiary companies in Chapter 7 liquidation could not be disallowed under the Bankruptcy Code until the Chapter 7 trustee elected to file a surrogate claim on behalf of EPA, which had not yet elected to file an allowable claim.¹²⁷ The claim was contingent because EPA had not issued any further cleanup orders against the claimant. Bankruptcy courts frequently permit automatic allowance of contingent claims and simply estimate the amount of the claim for purposes of its allowance. But where the filing of a contingent claim for contribution entails risk that the assets will be exposed to double dipping, the Code mandates disallowance of the contingent claim. The court reasoned, however, that although the Code directs disallowance of a claim held by a party who is liable with the debtor estate to a creditor, strict adherence to the Bankruptcy Code may thwart CERCLA's goal of obtaining broad and equitable financial participation by potentially responsible parties in the cleanup of hazardous wastes.¹²⁸ This decision by the First Circuit appears to conflict with the Eleventh Circuit's finding that the Bankruptcy Code's prohibition on contingent claims encourages expeditious cleanup of hazardous waste disposal sites by making a responsible party seeking contribution under CERCLA § 113(f) incur response costs before making an allowable claim.¹²⁹

* New Mexico Environment Department v. Franco.¹³⁰ The Tenth Circuit ruled that a trustee may abandon a contaminated site, and its leaking underground storage tanks, that was part of the bankrupt estate, despite alleged health concerns that abandonment would contravene state law designed to protect from identifiable hazards public health and safety. The Tenth Circuit ruled that the cause of action was not within the public health exception to a trustee's abandonment powers, which the Supreme Court set forth in Midlantic Bank v. New Jersey Department of Environmental Protection.¹³¹ The property was not an immediate and identifiable danger to public health and safety because the site was not listed on the state's list of contaminated sites, there was insufficient data from which a state expert could find the site a present threat, and the trustee's only violation of state law at the time of abandonment was a failure to file reports.

National Environmental Policy Act -- Environmental Impact Statements

* Public Citizen v. Office of the U.S. Trade Representative.¹³² This highly publicized case involved the North American Free Trade Agreement (NAFTA).¹³³ The district court ruled that the National Environmental Policy Act (NEPA)¹³⁴ requires the Office of the U.S. Trade Representative (OTR) to prepare an environmental impact statement (EIS) for NAFTA.¹³⁵ This decision raised the interest of many parties because NAFTA was on a "fast track" through Congress in order to be ready for signing by the countries party to the agreement by the beginning of 1994. Having to prepare an EIS might have prevented this from happening on schedule.

On expedited appeal, the D.C. Circuit reversed the lower court, holding that the OTR's completion of negotiations on NAFTA was not final agency action under the Administrative Procedure Act and was, therefore, not reviewable by the court. This issue and a NEPA challenge may arise again when the Uruguay Round of the General Agreement on Tariffs and Trade¹³⁶ is debated. The National Association of Counties has already asserted that the Uruguay Round multilateral trade [24 ELR 10731] agreement would subordinate U.S. environmental laws and principles to international trade policy.¹³⁷

Insurance Law

Over the past two terms, the Court has been asked to review several environmental cases involving insurance law, yet it has denied each petition.

* Morton International, Inc. v. General Accident Insurance Co.¹³⁸ The New Jersey Supreme Court held that the pollution exclusion clause in comprehensive general liability (CGL) insurance policies does not bar coverage for gradual contamination unless the contamination was caused by the insured's intentional discharge of pollutants. The court held that environmental response costs are damages under a CGL policy, but that the insured was not entitled to coverage because its predecessors intentionally polluted. Significantly, the court also held that although the pollution exclusion bars coverage for all pollution damage except that arising from abrupt events, it would not enforce the clause as written because the insurance industry deceived state regulators, knowingly and grossly understating the exclusion's effect on coverage by calling the monumental reduction in coverage a mere clarification.¹³⁹

The decision means that in disputes governed by New Jersey law, insurance companies may have a harder time denying coverage, on grounds based in the policies' pollution exclusions, to their policyholders that seek defense and indemnification for environmental claims. The ruling does not preclude these insurers from raising other defenses to the claims.

If other states' courts follow this decision, Morton may cause problems for regulated industries. Though debatable, it is conceivable that if state courts prevent regulated industries from relying on contractual provisions the state's own regulators approved, every such industry may be subject to similar deprivations that arguably could shake the stability of contractually based expectations on which state and national economies rely. As for the insurance industry, shifting huge environmental liability costs to insurers could force insurers to bear costs for which they have not prepared a reserve. The result may be that individual policyholders may be asked to subsidize current and future cleanup efforts for which insurance companies are found liable.

Justice Breyer

The Court's current composition defies specific labeling. This is mostly due to the introduction since 1988 of five new Justices. Each new Justice alters the dynamics and alliances on the Court as they wrestle with complex, difficult issues. Justice Breyer is said to be a "pragmatic centrist," probably placing him just to the ideological left of Justice Kennedy. Justice Kennedy, himself a "pragmatist," has proven, as the fifth vote in 5-4 decisions, more likely to give conservatives the nod.¹⁴⁰ Also, with the absence of "liberal" Justice Blackmun and the assumption of his seat by the "only left-leaning" Justice Breyer, the Court loses an important counterbalance to Justice Scalia's conservatism. Moreover, Justice Breyer may crowd the Court's ideological center, putting Kennedy and his "fifth vote" further right of center.

Despite this somewhat fuzzy picture of Justice Breyer's ideological stance and where he will fit on the Court, his impact on environmental law may be more certain, though not in the votes he casts or sides he takes. His presence will be felt in cases involving statutory interpretation. He has written about, and has strong views regarding, what courts should rely on in interpreting statutory law and the extent to which courts should defer to agency interpretations of the law.¹⁴¹

Judicial review of environmental law regularly requires application of the two-part test set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council,¹⁴² for use in deciding whether to defer to agency interpretations of statutory meaning for which Congress has not expressed its choice in the law.¹⁴³ Whereas Justice Scalia believes in relying primarily on a statute's plain meaning and without recourse to context or legislative history except to recognize distinctive traces of meaning,¹⁴⁴ Justice Breyer maintains that legislative history should not be dismissed.¹⁴⁵ Indeed, legislative history has been decisive in several of then-Judge Breyer's First Circuit decisions.¹⁴⁶

And as to application of the Chevron rule, Justice Breyer believes statutory interpretation requires greater care than the rule permits.¹⁴⁷ He appears to prefer a case-by-case analysis to absolute deference to reasonable agency interpretations in any case in which the statute is silent as to Congress' intent.¹⁴⁸ Based on Justice Breyer's [24 ELR 10732] desire to avoid tunnel vision by ardent government agencies that promulgate regulations,¹⁴⁹ one can imagine how he would review a case concerning an expensive hazardous waste site cleanup that provides minimal health and safety benefits.¹⁵⁰

The 1994-1995 Term

The Court began its 1994-1995 Term by denying certiorari for over 1,600 appeals, seven of which were environmental cases. Because none of the cases for which the Court granted certiorari last year and which were carried over to this Term are environmental cases, no environmental cases are scheduled on the Court's docket. If the Court were to grant a petition for certiorari in an environmental case before the end of 1994, it is unlikely that the case would be decided before the end of the 1994-1995 Term.

While the prospect of a slow year for Supreme Court activity in the environmental arena is unfortunate for environmental law Court watchers, one cannot deny that the 1993-1994 Term was full of activity and surprise on the environmental front. The curious alignments of the Justices in the cases decided, the favorable results for environmentalists in PUD No. 1 and City of Chicago, and the interesting results and ramifications in the Commerce Clause cases, Dolan, and Key Tronic undeniably made the 1993-1994 Term eventful.

Mr. Sears is an Associate Editor of ELR -- The Environmental Law Reporter. He is a graduate of the University of Connecticut School of Law and the Harvard School of Public Health. The opinions expressed are those of the author.

1. Tony Mauro, Term Ends With a Touch of Humor, Anger, LEGAL TIMES, July 4, 1994, at 10, 18. Despite reviewing so many petitions for certiorari, the Court handed down only 84 signed opinions during the 1993-1994 Term, a drop from the 1980s when the Court averaged 140 opinions each Term, and the 1992-1993 and 1991-1992 Terms, in each of which the Court handed down 107 signed opinions. See Joan Biskupic, Justices Follow a Mostly Conservative Course, WASH. POST, July 4, 1994, at A1, A12; 62 U.S.L.W. 3124 (Aug. 17, 1993) (statistical recap of Supreme Court's workload during 1990-1991 through 1992-1993 Terms). The Court heard fewer cases during the 1993-1994 Term than it had in any Term during the past three decades. Biskupic, supra, at A12.

2. See, e.g., Biskupic, supra note 1, at A1, A12.

3. Even the alliances the cases generated were surprising in a couple of instances. For example, "conservative" Justice Scalia wrote the opinion for the majority in City of Chicago v. Environmental Defense Fund, 114 S. Ct. 1588, 24 ELR 20810 (U.S. 1994), a case in which environmentalists' position won the day. And in Key Tronic Corp. v. United States, 114 S. Ct. 1960, 24 ELR 20955 (U.S. 1994), "conservative" Justices Scalia and Thomas joined forces with "liberal" Justice Blackmun in dissent.

4. PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 114 S. Ct. 1900, 24 ELR 20945 (U.S. 1994).

5. City of Chicago, 114 S. Ct. 1588, 24 ELR 20810.

6. Key Tronic Corp., 114 S. Ct. 1960, 24 ELR 20955 (U.S. 1994).

7. Oregon Waste Sys., Inc. v. Department of Envtl. Quality, 114 S. Ct. 1345, 24 ELR 20674 (U.S. 1994).

8. C&A Carbone, Inc. v. Town of Clarkstown, 114 S. Ct. 1677, 24 ELR 20815 (U.S. 1994).

9. Dolan v. City of Tigard, 114 S. Ct. 1309, 24 ELR 21083 (U.S. 1994).

10. For summaries of all the Court's actions during the 1993-1994 Term, see "In the Supreme Court" at 23 ELR at 10633 (Oct. 1993); 23 ELR at 10739-40 (Dec. 1993); 24 ELR at 10032 (Jan. 1994); 24 ELR at 10091 (Feb. 1994); 24 ELR at 10143 (Mar. 1994); 24 ELR at 10261-61 (May 1994); 24 ELR at 10337 (June 1994); 24 ELR at 10410-11 (July 1994); and 24 ELR at 10488-89 (Aug. 1994).

11. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

12. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

13. Id. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

14. 114 S. Ct. 1900, 24 ELR 20945 (U.S. 1994).

15. On the heels of this decision, the Court denied a petition for certiorari in New York Department of Envtl. Conservation v. Niagara Mohawk Power Corp., 624 N.E.2d 146, 24 ELR 20520 (N.Y. 1993), cert. denied, No. 93-1285, 114 S. Ct. 2162, 62 U.S.L.W. 3807 (June 6, 1994). In Niagara Mohawk, an owner and operator of hydroelectric facilities throughout New York State lodged an administrative challenge to certification requirements that the state Department of Environmental Conservation (DEC) imposed on it. The company alleged that the DEC, in addition to considering state water quality standards imposing numerical limits on pollutants promulgated under the FWPCA and approved by the U.S. Environmental Protection Agency (EPA), would consider other state water quality requirements in reviewing the company's certification applications. The New York Appellate Court ruled that the Federal Power Act, 16 U.S.C. § 791a, established a comprehensive scheme of federal regulation of hydroelectric facilities that preempts most state regulation. The New York court also held that to broaden the exception for state water quality standards would lead to conflicts with the comprehensive federal scheme. The court held that New York's review of the company's application for FWPCA § 401 certification was limited to considering state water quality standards approved by EPA. The U.S. Supreme Court's decision in PUD No. 1 effectively overturns the Niagara Mohawk decision.

In another case addressing state authority under § 401, Simpson Paper (Vermont) Co. v. Department of Environment Conservation, Vermont conditioned certification of a hydroelectric facility on minimum water spillage from the facility's dam on the Connecticut River. The spillage was necessary to ensure adequate dissolved oxygen to prevent degradation of the aquatic habitat, to protect water quality for various fish species, and to restore aesthetics of the river downstream during the time of year that the public uses the river most. The case was resolved in a settlement pursuant to which the state agreed to seek modification of the company's water quality certificate to require the company to spill the necessary amount of water only when the Connecticut River's flow drops below a specified level. In exchange, the company filed a motion to dismiss its petition for writ of certiorari, which argued that in imposing the spillage requirements as a condition of certification of the facility, Vermont improperly considered aesthetic and recreation interests that were unrelated to water quality. Simpson Paper (Vermont) Co. v. Department of Envtl. Conservation, petition for cert. filed, No. 92-1012 (U.S. Dec. 15, 1993), cert. denied, 114 S. Ct. 2161 (June 6, 1994).

16. Only four years before this decision, Justice O'Connor authored the Court's unanimous decision in California v. Federal Energy Regulatory Commission, in which the Court ruled that states could not impose state water quality laws on facilities licensed by the Federal Energy Regulatory Commission (FERC). 495 U.S. 490, 23 ELR 20913 (U.S. 1990). The Court held that the Federal Power Act provides a comprehensive statutory scheme that leaves no room for states to apply their water law. The California decision reaffirmed the Court's decision in First Iowa Hydro-Electric Coop. v. Federal Power Comm'n, 328 U.S. 152 (U.S. 1946).

17. PUD No. 1, 114 S. Ct. at 1908, 24 ELR at 20947.

18. Id. at 1909, 24 ELR at 20947.

19. 33 U.S.C. § 1313, ELR STAT. FWPCA § 303.

20. PUD No. 1, 114 S. Ct. at 1909, 24 ELR at 20948.

21. Id. at 1911, 24 ELR at 20948.

22. Id. at 1910, 24 ELR at 20948 (quoting 33 U.S.C. § 1313(c)(2)(A), ELR STAT. FWPCA § 303(c)(2)(A)).

23. Id.

24. Id. at 1912, 24 ELR at 20949.

25. Id. at 1914, 24 ELR at 20950.

26. Id. at 1916, 24 ELR at 20951-52 (Thomas, J., dissenting).

27. Id. at 1919-21, 24 ELR at 20953 (Thomas, J., dissenting).

28. 114 S. Ct. 1588, 24 ELR 20810 (U.S. 1994).

29. City of Chicago v. Environmental Defense Fund, No. 91-1328, 113 S. Ct. 486, 61 U.S.L.W. 3369 (Nov. 16, 1992).

30. Environmental Defense Fund v. City of Chicago, 985 F.2d 303, 23 ELR 20690, cert. denied, 112 S. Ct. 453 (7th Cir. 1993). The January 12, 1993, order was issued as an unpublished order. The court issued the decision for publication on January 29, 1993.

31. Environmental Defense Fund v. Wheelabrator Technologies, Inc., 931 F.2d 211, 21 ELR 20845 (2d Cir. 1991) (holding that RCRA § 3001(i) excludes incinerator ash from regulation as a hazardous waste under RCRA as long as the particular facility does not accept hazardous waste for incineration and has sufficient controls to ensure that unauthorized hazardous wastes would not be delivered to the resource recovery facility for disposal).

32. 42 U.S.C. § 6921(i), ELR STAT. RCRA § 3001(i).

33. Justice Scalia relied on the plain language of the law, preferring not to rely on a Senate Report on the 1984 RCRA bill that said the § 3001(i) exemption would cover generation of waste such as ash. The word "generation" never made it into the final bill that Congress approved, and Justice Scalia followed his philosophy against basing a ruling on legislative history.

34. City of Chicago, 114 S. Ct. at 1591, 24 ELR at 20811.

35. Id. at 1592, 24 ELR at 20812.

36. 42 U.S.C. § 6902(b), ELR STAT. RCRA § 1003(b).

37. City of Chicago, 114 S. Ct. at 1592, 24 ELR at 20812. Footnote 5 of the majority opinion states that "[i]n view of [the Court's] construction of § 3001(i), [the Court] need not consider whether [the] agency interpretation[, which was set forth in an internal memorandum,] … is entitled to … deference.…" Id. at 1594 n.5, 24 ELR at 20813 n.5. The issue of what deference courts should give an EPA interpretation that is conveyed through an internal memorandum was not discussed. Whether this footnote was directed to that issue or to the circuit courts, which may be too quick to defer to agency interpretations, is unclear.

38. For an in-depth discussion of the decision's ramifications, see James V. DeLong, Sackcloth and Ash: City of Chicago v. Environmental Defense Fund, 24 ELR 10536 (Sept. 1994).

39. City of Chicago, 114 S. Ct. at 1597 n.7, 24 ELR at 20814 n.7 (Stevens, J., dissenting). According to the dissent, "[t]he purpose of acommittee report is to provide the Members of Congress who have not taken part in the committee's deliberations with a summary of the provisions of the bill and the reasons for the committee's recommendation that the bill should become law." Id.

40. Incinerators had to start testing ash for hazardous constituents starting within three months of EPA's June 7, 1994, Federal Register notice. Extension of Date for Submission of Part A Permit Applications for Facilities Managing Ash From Waste-to-Energy Facilities, 59 Fed. Reg. 29372 (June 7, 1994).

41. These operators must apply for a hazardous waste operating permit within six months of EPA's June 7, 1994, Federal Register notice. Id.

42. EPA, IMPLEMENTATION STRATEGY OF U.S. SUPREME COURT DECISION IN CITY OF CHICAGO V. ENVIRONMENTAL DEFENSE FUND, No. 1639 (U.S. 1994) for Municipal Waste Combustion Ash (May 7, 1994) (on file with ELR, Order No. AD-214).

43. Integrated Waste Servs. Ass'n v. U.S. Environmental Protection Agency, No. 94-1584 (D.C. Cir.) (petition for review filed Aug. 22, 1994).

44. 114 S. Ct. 1960, 24 ELR 20955 (U.S. 1994), 30 F.3d 1105, 24 ELR 21282 (9th Cir. 1994) (on remand).

45. Subsequent to its decision in this case, the Court vacated and remanded for proceedings in light of Key Tronic a Sixth Circuit ruling that awarded attorneys fees as private response costs under CERCLA. Donahey v. Bogle, 987 F.2d 1250, 23 ELR 20527 (6th Cir. 1993), vacated & remanded sub nom. Livingstone v. Donahey, No. 93-428, 114 S. Ct. 2668, 62 U.S.L.W. 3825 (June 13, 1994).

46. Key Tronic, 114 S. Ct. at 1965, 24 ELR at 20956 (quoting Runyon v. McCrary, 427 U.S. 160, 185 (1986) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 5 ELR 20286, 20287) (emphasis added)).

47. Id. at 1966-67, 24 ELR at 20957.

48. Id. at 1967, 24 ELR at 20957.

49. Id.

50. Id.

51. Id.

52. Id. at 1968, 24 ELR at 20957-58.

53. Id. at 1968-69, 24 ELR at 20958-59 (Scalia, J., dissenting).

54. Courts have been split on the issue of the availability of attorneys fees for private litigants. For an excellent discussion of the issue and lists of decisions holding that fees are available and decisions holding that fees are unavailable, see Kenneth A. Freeling, Recovery of Attorneys Fees in CERCLA Private-Party Cost Recovery Actions: Striking a Balance, 23 ELR 10477, 10477 n.8 (1993).

55. Superfund reform in 1994 may have died, but the issue of attorneys fees is not forgotten. At least one Superfund reform bill, S. 1834, would have amended § 113(f), the section of CERCLA addressing contribution actions, to specify that "Any person who commences an action for contribution shall be liable to the person against whom the claim of contribution is brought for all reasonable costs of defending against the claim, including all reasonable attorneys' and expert witness fees" in selected situations. Superfund Reform Act of 1994, S. 1834, 103d Cong., 2d Sess. (1994).

56. 114 S. Ct. 1345, 24 ELR 20674 (U.S. 1994).

57. See, e.g., City of Philadelphia v. New Jersey, 437 U.S. 617, 8 ELR 20540 (U.S. 1978); Chemical Waste Management, Inc. v. Hunt, 112 S. Ct. 2009, 22 ELR 20909 (U.S. 1992); Fort Gratiot Landfill, Inc. v. Michigan Dep't of Natural Resources, 112 S. Ct. 2019, 22 ELR 20904 (U.S. 1992).

58. Oregon Waste Systems, 114 S. Ct. at 1348, 24 ELR at 20674 (citing Chemical Waste Management, 112 S. Ct. at 2011 n.9, 22 ELR at 20910 n.9). In Chemical Waste Management, the Court "left open the possibility that such a differential surcharge might be valid.…" Id.

Oregon Waste Systems also provided the Court an opportunity to resolve conflicting case law. The Oregon Supreme Court upheld the tax on interstate waste that was at issue in Oregon Waste Systems (Gilliam County v. Department of Envtl. Quality, 849 P.2d 500, 24 ELR 20065 (Or. 1993)), and the Seventh Circuit had struck down a similar tax, an Indiana fee on out-of-state waste, because it taxed interstate commerce more heavily than intrastate commerce whenever in-state entities used Indiana facilities supported by general state tax funds. Government Suppliers Consolidating Servs., Inc. v. Indiana, 975 F.2d 1267, 23 ELR 20042 (7th Cir. 1992), cert. denied, 113 S. Ct. 977 (1993).

59. Oregon Waste Systems, 114 S. Ct. at 1348, 24 ELR at 20674 (quoting OR. REV. STAT. § 459.27(1)).

60. Id. (quoting OR. REV. STAT. § 459.298).

61. Arguing that the "compensatory tax" was necessary to make shippers of such waste pay their "fair share" of the costs imposed on Oregon by the disposal of their waste was the only avenue available to Oregon. See supra note 58.

62. Oregon Waste Systems, 114 S. Ct. at 1354, 24 ELR at 20678 (discussing Sporhase v. Nebraska, 458 U.S. 941, 12 ELR 20749 (U.S. 1982)).

63. Id. at 1357,24 ELR at 20679 (Rehnquist, C.J., dissenting).

64. Id. at 1356, 24 ELR at 20678 (citing 56 Fed. Reg. 50980 (1991)) (Rehnquist, C.J., dissenting).

65. The U.S. House of Representatives has approved legislation that gives state and local governments authority to restrict shipments of out-of-state solid waste. State and Local Government Interstate Waste Control Act of 1994, H.R. 4779, 103d Cong., 2d Sess. (1994). The legislation would not authorize these governments to ban the import of such waste, but it would allow them to control the amount they receive in order that they be better able to implement their respective waste management plans. The U.S. Senate also approved legislation, but its version is very different from the House bill. Interstate Transportation of Municipal Solid Waste Act of 1994, S. 2345, 103d Cong., 2d Sess. (1994). The Senate bill would authorize governors, in limited circumstances, to ban out-of-state shipments of municipal solid waste from entering their state.

66. 114 S. Ct. 1677, 24 ELR 20815 (U.S. 1994).

67. Twenty-seven states have authorized their local governments to adopt this approach. Linda Greenhouse, Justices Strike Down Local Laws Restricting the Shipping of Trash, N.Y. TIMES, May 17, 1994, at A1, A13.

68. C&A Carbone, 114 S. Ct. at 1681, 24 ELR at 20817.

69. Id. at 1683, 24 ELR at 20818 (quoting Maine v. Taylor, 477 U.S. 131 (1986)).

70. Id. at 1689, 24 ELR at 20821 (O'Connor, J., concurring).

71. See, e.g., A-1 Carting, Inc. v. North Hempstead, No. CV-94-2808 (E.D.N.Y. June 13, 1994) (three waste haulers suing town to prevent the town from enforcing its 1986 flow control ordinance alleging that ordinance violates Commerce Clause); Gray v. Tri-State Rubbish, Inc., No. 93-1133, 114 S. Ct. 2099 (May 23, 1994) (Supreme Court action denying petition for certiorari of constitutional challenge to municipal ordinance controlling processing of solid waste); Tri-State Rubbish, Inc. v. Auburn, No. 92-1505, 114 S. Ct. 2101 (May 23, 1994) (same); Borough of Haddon Heights v. Shinn, No. 94-2753 (D.N.J. June 2, 1994) (refusing to bar state and local officials from enforcing state solid waste flow control rules pending the outcome of a local government's constitutional challenges to the regulations).

72. "It is within Congress' power to authorize local imposition of flow control." 114 S. Ct. at 1692, 24 ELR at 20823 (O'Connor, J., concurring). Congress should heed Justice O'Connor's concurring opinion, in which she also stated that "Congress must be 'unmistakably clear' before we will conclude that it intended to permit state regulation which would otherwise violate the dormant Commerce Clause." Id. at 1691, 24 ELR at 20822 (O'Connor, J., concurring). "Should Congress revisit this area and enact legislation providing a clear indication that it intends States and localities to implement flow control, we will, of course, defer to that legislative judgment." Id. at 1692, 24 ELR at 20823 (O'Connor, J., concurring).

73. Flow Control Act of 1994, H.R. 4683, 103d Cong., 2d Sess. (1994).

74. 114 S. Ct. 2309, 24 ELR 21083 (U.S. 1994).

75. Id. at 2317, 24 ELR at 21086.

76. Id. at 2318, 24 ELR at 21086.

77. Id. at 2319, 24 ELR at 21087.

78. Id. at 2326, 24 ELR at 21091 (Stevens, J., dissenting).

79. The Court justified this shift by noting that in most zoning regulation challenges, the burden "properly rests on the party challenging the regulation to prove that it constitutes an arbitrary regulation of property rights.… Here … the city made an adjudicative decision to condition petitioner's application for a building permit on an individual parcel, … [and so] the burden properly rests on the city." Id. at 2320 n.8, 24 ELR 21087 n.8.

80. Requiring public access to her property would deprive petitioner of the right to exclude others, a right that "is 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.'" Id. at 2320, 24 ELR at 21088 (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176, 10 ELR 20042, 20045 (1979)).

81. 990 F.2d 1565, 23 ELR 20800 (10th Cir. 1993), cert. denied, No. 93-786, 114 S. Ct. 922, 62 U.S.L.W. 3491 (Jan. 24, 1994).

82. See Vicky L. Peters et al., Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision, 23 ELR 10419 (July 1993).

83. 999 F.2d 1212, 23 ELR 21280 (8th Cir. 1993), cert. denied, No. 93-1124, 114 S. Ct. 1397, 62 U.S.L.W. 3657 (Apr. 4, 1994).

84. United States v. Hardage, 982 F.2d 1436, 23 ELR 20624 (10th Cir. 1992), cert. denied sub nom. Advance Chem. Co. v. United States, No. 92-1955, 114 S. Ct. 300, 62 U.S.L.W. 3272 (Oct. 12, 1993).

85. Hardage, at 1443, 24 ELR at 20627.

86. Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 959 F.2d 158, 22 ELR 20995 (10th Cir. 1992), vacated & remanded sub nom. Arkansas-Platte & Gulf Partnership v. Dow Chem. Corp., No. 92-203, 113 S. Ct. 314, 61 U.S.L.W. 3284 (Oct. 13, 1992), on remand, Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, 981 F.2d 1177, 23 ELR 20478 (10th Cir. 1993) (adhering to previous opinion), cert. denied sub nom. Arkansas-Platte & Gulf Partnership v. Dow Chem. Co., No 92-1784, 114 S. Ct. 60, 62 U.S.L.W. 3244 (Oct. 4, 1993).

87. 7 U.S.C. §§ 136v, ELR STAT. FIFRA § 24. For a thorough analysis of FIFRA, see Linda J. Fisher et al., A Practitioner's Guide to the Federal Insecticide, Fungicide, and Rodenticide Act, 24 ELR 10449 (Aug. 1994); 24 ELR 10507 (Sept. 1994); and 24 ELR 10629 (Nov. 1994).

88. 112 S. Ct. 2608 (1992) (holding that congressionally mandated warnings on cigarette packages did not insulate tobacco manufacturers from liability in all actions alleging damages under state tort laws).

89. Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, 981 F.2d 1177, 23 ELR 20478 (10th Cir. 1993).

90. Papas v. Upjohn Co., 926 F.2d 1019, 21 ELR 20898 (11th Cir. 1991), vacated & remanded sub nom. Papas v. Zoecon Corp., No. 90-1837, 112 S. Ct. 3020, 59 U.S.L.W. 3825 (June 29, 1992), on remand sub nom. Papas v. Upjohn Co., 985 F.2d 516, 23 ELR 20613 (11th Cir. 1993), cert. denied sub nom. Papas v. Zoecon, No. 92-1398, 114 S. Ct. 300, 62 U.S.L.W. 3272 (Oct. 12, 1993).

91. 996 F.2d 1346, 23 ELR 21282 (1st Cir. 1993), cert. denied, No. 93-530, 114 S. Ct. 490, 62 U.S.L.W. 3289 (Nov. 17, 1993).

92. 988 F.2d 1218 (11th Cir. 1993), cert. denied, No. 93-86, 114 S. Ct. 302, 62 U.S.L.W. 3272 (Oct. 12, 1993).

93. United States v. Walsh, 8 F.3d 659, 24 ELR 20030 (9th Cir. 1993), cert. denied sub nom. Walsh v. United States, No. 93-1316, 114 S. Ct. 1830, 62 U.S.L.W. 3754(May 16, 1994).

94. 42 U.S.C. § 7412, ELR STAT. CAA § 112.

95. Id. § 7412(c)(1)(B), ELR STAT. CAA § 112(c)(1)(B).

96. 990 F.2d 1531, 23 ELR 20678 (9th Cir. 1993), cert. denied, No. 92-2052, 114 S. Ct. 94, 62 U.S.L.W. 3245 (Oct. 4, 1993).

97. 42 U.S.C. § 7492, ELR STAT. CAA § 169A.

98. United States v. Plaza Health Labs., Inc., 3 F.3d 643, 23 ELR 21526 (2d Cir. 1993), cert. denied sub nom. United States v. Villegas, No. 93-1572, 114 S. Ct. 2764, 62 U.S.L.W. 3861 (June 27, 1994).

99. 33 U.S.C. § 1311, ELR STAT. FWPCA § 301.

100. Id. § 1319(c)(2), ELR STAT. FWPCA § 309(c)(2).

101. Plaza Health Labs., 3 F.3d at 647, 23 ELR at 21529.

102. Section 502(14) defines a "point source" as any discernible, confined, and discrete conveyance, including but not limited to, a long list and varied list of possible carriers. 33 U.S.C. § 1362, ELR STAT. FWPCA § 502(14).

103. Plaza Health Labs., 3 F.3d at 654, 23 ELR at 20533 (Oakes, J., dissenting).

104. 992 F.2d 474, 23 ELR 21125 (3d Cir. 1993), cert. denied, No. 93-256, 114 S. Ct. 439, 62 U.S.L.W. 3334 (Nov. 8, 1993).

105. 33 U.S.C. § 1367, ELR STAT. FWPCA § 507.

106. Section 507(a) provides that:

No person shall fire, or in any other way discriminate against … any employee … by reason of the fact that such employee … has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the [FWPCA].

Id. § 1367(a), ELR STAT. FWPCA § 507(a).

107. Passaic Valley, 992 F.2d at 478, 23 ELR at 21127.

108. Id. at 482, 23 ELR at 21128.

109. Id. at 478, 23 ELR at 21126.

110. United States v. Pozsgai, 999 F.2d 719, 23 ELR 21012 (3d Cir. 1993), cert. denied sub nom. Pozsgai v. United States, No. 93-733, 114 S. Ct. 1052, 62 U.S.L.W. 3551 (Feb. 22, 1994).

111. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

112. Id. § 1362(6), ELR STAT. FWPCA § 502(6).

113. The FWPCA defines "pollutant" to mean "dredged spoil, rock, sand" and other materials "discharged into water," id., and defines "discharge of pollutant" to mean "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12), ELR STAT. FWPCA § 502(12).

114. United States v. Curtis, 988 F.2d 946, 23 ELR 20685 (9th Cir. 1993), cert. denied sub nom. Curtis v. United States, No. 93-48, 114 S. Ct. 177, 62 U.S.L.W. 3248 (Oct. 4, 1993).

115. 33 U.S.C. § 1362(5), ELR STAT. FWPCA § 502(5).

116. Id. § 1319(c)(6), ELR STAT. FWPCA § 309(c)(6).

117. Id. § 1323(a), ELR STAT. FWPCA § 313(a).

118. 622 A.2d 745 (Md. 1993), cert. denied, No. 93-9, 114 S. Ct. 288, 62 U.S.L.W. 3252 (Oct. 4, 1993).

119. The orders were the result of a suit by the United States to rectify an environmental crisis caused by inadequate methods of disposal of sewage sludge generated by a treatment plant serving metropolitan Washington, D.C. United States v. District of Columbia, 654 F.2d 802, 11 ELR 20595 (D.C. Cir. 1981).

120. The court order did not require the provider to build and operate a facility at that site. The facility only had to be built in that county.

121. 991 F.2d 132, 23 ELR 20837 (4th Cir. 1993), cert. denied, No. 93-63, 114 S. Ct. 182, 62 U.S.L.W. 3248 (Oct. 4, 1993).

122. 28 U.S.C. § 2412.

123. Roanoke River Basin, 991 F.2d at 139, 23 ELR at 20840.

124. See, e.g., Patricia L. Quentel, Emerging Tensions Between CERCLA and the Bankruptcy Code, 23 ELR 10268 (May 1993); David Williams et al., A Whole New Ballgame: Judicial Review and Estimation of CERCLA Claims in Bankruptcy, 22 ELR 10785 (Dec. 1992); Nancy H. Kratzke, Dischargeability Issues and Superfund Claims: The Conflict Between Environmental and Bankruptcy Policies, 17 COLUM. J. ENVTL. L. 381 (1992); S. Scott Massin, Recent Developments in Bankruptcy and the Cleanup of Hazardous Waste, 19 ELR 10427 (Oct. 1989); Murray Drabkin et al., Bankruptcy and the Cleanup of Hazardous Waste: Caveat Creditor, 15 ELR 10168 (June 1985); Kenneth L. Rosenbaum, Bankruptcy and Environmental Regulation: An Emerging Conflict, 13 ELR 10099, 10103 (Apr. 1983) (foreseeing that "courts may face this problem [clash of policies] again and again in coming years").

125. 8 F.3d 146, 24 ELR 20016 (3d Cir. 1993), cert. denied, No. 93-1187, 114 S. Ct. 1576, 62 U.S.L.W. 3691 (Apr. 18, 1994).

126. In re Hemingway Transp., Inc., 993 F.2d 915, 23 ELR 20953 (1st Cir. 1993), cert. denied sub nom. Kahn v. Juniper Dev. Group, No. 93-187, 114 S. Ct. 303, 62 U.S.L.W. 3272 (Oct. 12, 1993).

127. A surrogate claim is filed by a bankrupt estate as a way of discharging a past claim that was never voiced by a claimant. If the surrogate claim were to be made and the § 502 test were met, however, the bankrupt estates would then have to pay EPA the claim for future response costs.

128. In re Hemingway Transp., at 924, 23 ELR at 20956.

129. In re The Charter Co., 862 F.2d 1500, 1504, 19 ELR 20504, 20506 (11th Cir. 1989) (disallowing contingent claims).

130. In re L. F. Jennings, 4 F.3d 887, 24 ELR 20167 (10th Cir. 1993), cert. denied sub nom. New Mexico Env't Dep't v. Franco, No. 93-1268, 114 S. Ct. 1372, 62 U.S.L.W. 3640 (Mar. 28, 1994).

131. 474 U.S. 494, 16 ELR 20278 (1986).

132. 5 F.3d 549, 23 ELR 21471 (D.C. Cir. 1993), cert. denied, No. 93-560, 114 S. Ct. 685, 62 U.S.L.W. 3451 (Jan. 10, 1994).

133. North American Free Trade Agreement, Dec. 17, 1992, U.S.-Can.-Mex., H.R. DOC. NO. 103-159, 103d Cong., 1st Sess. 713 (1993).

134. 42 U.S.C. §§ 4321-4347, ELR STAT. NEPA §§ 2-209.

135. Public Citizen v. U.S. Trade Representative, 822 F. Supp. 21 (D.D.C. 1993). See also Joseph Mendelson III & Andrew Kimbrell, The Legislative Environmental Impact Statement: An Analysis of Public Citizen v. Office of the U.S. Trade Representative, 23 ELR 10653 (1993).

136. General Agreement on Tariffs and Trade, opened for signature Oct. 30, 1947, General Agreement on Tariffs and Trade, TEXT OF THE GENERAL AGREEMENT (July 1986).

137. U.S. Counties Say Agreement Could Harm Environmental Rules, [DEN] Daily Env't Rep. (BNA) No. 134, July 15, 1994, at A-1.

138. Morton Int'l, Inc. v. General Accident Ins. Co. of Am., 629 A.2d 831 (N.J. 1993), cert. denied sub nom. Insurance Co. of N. Am. v. Morton Int'l, Inc., No. 93-1797, 114 S. Ct. 2764, 62 U.S.L.W. 3857 (June 27, 1994), reh'g denied, 63 U.S.L.W. 3191 (Aug. 24, 1994).

139. The court held that the industry had grossly understated the effect on coverage when it explained the policy to state departments of insurance.

140. See Biskupic, supra note 1, at A12.

141. See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 874 (1992).

142. 467 U.S. 837, 14 ELR 20507 (1984).

143. In Chevron, the Court adopted the doctrine that judicial review of agency-administered statutes involves a two-step process: (1) asking whether Congress directly addressed the precise question at issue, such that if it did the plain meaning of thestatute governs; and (2) if it did not, then the reviewing court must accept the agency's interpretation so long as it is a permissible or reasonable construction.

144. Antonin Scalia, Judicial Deference to Administrative Interpretation of Law, 1989 DUKE L. J. 511.

145. Then-Judge Breyer has noted, "viewed in the light of the judiciary's important objective of helping to maintain coherent, workable statutory law, the case for abandoning the use of legislative history has not yet been made.… The 'problem' of legislative history is its 'abuse' not its 'use.' Care, not drastic change, is all that is warranted." See Breyer, supra note 141, at 874. In his nomination testimony before Congress, Judge Breyer stated, "I do not think a court can know whether an interpretation is correct until it understands both the purpose and how the interpretation is likely, in light of that purpose, to work out in the world. In the actual world." Linda Greenhouse, Portrait of a Pragmatist, N.Y. TIMES, July 14, 1994, at A1, D22.

146. See, e.g., In re Arnold Print Works, Inc., 815 F.2d 165, 167 (1st Cir. 1987); Local Div. 589 v. Massachusetts, 666 F.2d 618 (1st Cir. 1981), cert. denied, 457 U.S. 1117 (1982).

147. See, e.g., Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363 (1986).

148. Id. at 373 (stating the rule is "seriously overbroad, counterproductive and sometimes useless"). See also Avery v. Health & Human Servs., 762 F.2d 158 (1st Cir. 1985) (rejecting agency interpretation and relying on court's authority to retain jurisdiction where agency offered no reason to follow its proposed procedure).

149. See STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 11-19 (1993).

150. Addressing a toxic waste dump cleanup in New Hampshire, Judge Breyer wrote:

The site was mostly cleaned up. All but one of the private parties had settled. The remaining private party litigated the cost of cleaning up the last little bit, a cost of about $ 9.3 million to remove a small amount of highly diluted PCBs and "volatile organic compounds" … by incinerating the dirt. How much extra safety did this $ 9.3 million buy?… [W]ithout the extra expenditure, the waste dump was clean enough for children playing on the site to eat small amounts of dirt daily for 70 days each year without significant harm. Burning the soil would have made it clean enough for the children to eat small amounts daily for 245 days per year without significant harm. But there were no dirt-eating children playing in the area, for it was a swamp.

Id at 12.

24 ELR 10719 | Environmental Law Reporter | copyright © 1994 | All rights reserved