30 ELR 10173 | Environmental Law Reporter | copyright © 2000 | All rights reserved

1999—The Year in Review

The author is a Professor of Law, Northwestern School of Law, Lewis & Clark College, Portland, Oregon.

[30 ELR 10173]

This Article provides a relatively short summary of the most important environmental case law developments of the past year.¹ The treatment of cases is divided into two categories: first, extended consideration of the most significant developments; second, a somewhat briefer summary of several other significant decisions, organized by statute or subject matter.

The Three Most Important Case Law Developments of 1999

American Trucking Ass'n v. U.S. Environmental Protection Agency²

Background

The Clean Air Act (CAA), like many other environmental statutes,³ contains several broad delegations of power from Congress to the U.S. Environmental Protection Agency (EPA). One of the broadest of these delegations is in § 109(b)(1) of the Act, which required EPA to set "primary" air quality standards at levels "requisite to protect the public health" with "an adequate margin of safety."⁴ Congress left these latter two phrases undefined, thus leaving to EPA the task of determining what it really means to "protect the public health."

The setting of air quality standards is not a one-time proposition. Section 109(d) of the CAA requires EPA to revisit the primary standards every five years, and to revise them as appropriate according to the criteria in § 109(b)(1).⁵ In going through this process, EPA is required to seek the input of a special scientific committee, referred to as the Clean Air Scientific Advisory Committee (CASAC), which is charged with reviewing the existing standards and recommending appropriate revisions.⁶ EPA is the final decisionmaker, but § 307(d)(3) requires it to explain any departures from the CASAC's recommendations.⁷

EPA recently revised the standards for ozone and particulate matter (PM), both of which EPA treats as "nonthreshold" pollutants because it has been unable to identify a threshold below which it can conclude that they are likely to cause adverse effects.⁸ This poses a difficult problem for EPA because, as the D.C. Circuit noted in American Trucking, "for EPA to pick any non-zero level it must explain the degree of imperfection permitted."⁹ Compounding this dilemma, the D.C. Circuit previously had held that EPA may not consider costs in setting air quality standards.¹⁰ In its most recent revisions, EPA chose levels that were at the "protective" end of the range suggested by the CASAC.¹¹ Specifically, EPA replaced the 0.12 parts per million (ppm) primary ozone standard (averaged over one hour) with a more stringent standard of 0.08 ppm (averaged over an eight-hour period).¹² And for particulate matter, EPA developed a new way of measuring compliance for coarse particles (PM[10]) and set two new standards for fine particles (PM[25]), based on studies showing serious health effects—including premature death, increased hospital admissions, and respiratory and cardiovascular diseases—at levels below the existing PM standard.¹³

The Panel Opinion

In American Trucking, the panel majority (Judges Williams and Ginsburg) held that EPA's most recent revisions violated the nondelegation doctrine because neither the statute nor EPA's rules articulate an "intelligible principle" to channel EPA's exercise of discretion.¹⁴ While acknowledging that, when analyzing the significance of adverse effects, EPA considered "severity of effect, certainty of effect, and size of the population affected"¹⁵ the panel majority concluded that this was not enough:

[30 ELR 10174]

EPA's explanations for its decisions amount to assertions that a less stringent standard would allow the relevant pollutant to inflict a greater quantum of harm on public health, and that a more stringent standard would result in less harm. Such arguments only support the intuitive proposition that more pollution will not benefit public health, not that keeping pollution at or below any particular level is "requisite" or not requisite to "protect the public health" with an "adequate margin of safety," the formula set out by § 109(b)(1).¹⁶

Focusing particularly on the certainty of the effects, the court noted that EPA defended its decisions not to set the standards at lower levels "on the basis that there is greater uncertainty that health effects exist at lower levels than the level of the standard."¹⁷ But the court found this explanation wanting because "the increasing-uncertainty argument is helpful only if some principle reveals how much uncertainty is too much. None does."¹⁸ The court thus concluded that "EPA's formulation of its policy judgment [left] it free to pick any point between zero and a hair below the concentrations yielding London's Killer Fog [of 1952]."¹⁹

While concluding that EPA's interpretation of § 109(b)(1) posed nondelegation problems, the court declined to declare that provision unconstitutional on its face. Instead, the court determined that the proper response was to give EPA another chance to solve the problem through interpretation:

Where (as here) statutory language and an existing agency interpretation involve an unconstitutional delegation of power, but an interpretation without the constitutional weakness is or may be available, our response is not to strike down the statute but to give the agency an opportunity to extract a determinate standard on its own.²⁰

The court thus remanded the ozone and particulate matter standards to EPA. Interestingly, the court vacated only the revised PM[10] standard. It declined to vacate the ozone standard because, in the court's view, the parties did not show "that the standard is likely to engender costly compliance activities"²¹ in light of the court's parallel determination that it could not be enforced except in conformity with § 181(a)(1). The court initially reserved the question of whether to vacate the PM[25] standard,²² but later decided not to do so.²³

The panel majority acknowledged that its approach of remanding the standards to EPA would only serve two of the three functions of the nondelegation doctrine: it would discourage arbitrary agency actions and enhance the possibility of meaningful judicial review, but it would not ensure that Congress makes the important policy choices.²⁴ While noting that EPA would make the fundamental choices under the court's approach, the court determined that a remand would at least "ensure that the courts not hold unconstitutional a statute that an agency, with the application of its special expertise, could salvage."²⁵

Judge Tatel dissented on the nondelegation issue, arguing that § 109's "delegation of authority is narrower and more principled than delegations the Supreme Court and this court have upheld since [A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)]."²⁶ Judge Tatel also argued that EPA had offered specific and supportable justifications for the lines that it drew:

EPA thus did not . . . arbitrarily pick points on the ozone and particulate pollution continua indistinguishable from any other. Instead, . . . operating within ranges approved by CASAC, the Agency set the ozone level just above peak background concentrations where the most certain health effects are not transient and reversible, and the fine particle level at the lowest long-term mean concentration observed in studies that showed a statistically significant relationship between fine particle pollution and adverse health effects. . . .²⁷

Judge Tatel further argued that, given the principles Congress established in § 109(b), the question whether EPA lived up to the standards that it set for itself should have been subject to review under the arbitrary and capricious standard, not as a matter of nondelegation under the U.S. Constitution.²⁸

Opinions in Response to EPA's Petition for Rehearing

In response to EPA's petition for rehearing, the authors of the original panel opinion (Judges Williams and Ginsburg) issued a per curiam opinion denying EPA's request for rehearing on the nondelegation question.²⁹ The court did, however, respond to EPA's points and, in so doing, offered some fodder for thought.

On rehearing, EPA tried again to articulate a set of "intelligible principles" that would satisfy the panel's nondelegation concerns. Specifically, it advanced one core principle—that the standards set under § 109 "must be necessary for public health protection: neither more nor less stringent than necessary, but 'requisite'"³⁰—and two corollaries, one each for ozone and particulate matter. In the ozone context, for example, EPA offered the corollary that it was not required to go below 0.08 ppm because the effects [30 ELR 10175] below that level were "less serious because they are 'transient and reversible.'"³¹

In denying the Agency's request for rehearing on this issue, the authors of the per curiam opinion simply noted their view that EPA had never before identified either its main interpretive principle or either of the corollaries as limiting principles that would bind the Agency in future cases.³² Interestingly, the court expressed no opinion on the issue of whether the now-articulated principles would survive later judicial scrutiny if EPA were to repromulgate the revised standards as is.³³

The authors of the per curiam panel opinion on rehearing also took pains to defend their decision to remand the rules to EPA (as opposed to declaring § 109 unconstitutional on its face). Noting that in Industrial Union Department, AFL-CIO v. American Petroleum Institute (the Benzene case),³⁴ the U.S. Supreme Court had "identified an intelligible principle in an ambiguous statute"³⁵—thus saving it from nondelegation problems—Judges Williams and Ginsburg determined that "since Chevron it has been clear that 'the responsibilities for assessing the wisdom of such policy choices . . . are not judicial ones,'"³⁶ but rather belong to the agency. Thus, the per curiam opinion concluded that "the approach of the Benzene case . . . has given way to the approach of Chevron."³⁷

At the en banc level, five of the nine participating judges voted to grant en banc review.³⁸ However, according to a D.C. Circuit rule, 6 of the 11 judges must vote in favor of review in order for the court to vote in favor of the suggestion for rehearing en banc.³⁹ Accordingly, rehearing was denied. However, four of the judges who voted to grant rehearing wrote or joined in opinions dissenting from the denial of rehearing en banc. Judge Tatel issued an opinion, in which Judges Edwards and Garland joined, that essentially reiterated the arguments from his earlier dissent from the panel's original opinion.⁴⁰ Additionally, he argued that:

The panel's nondelegation holding plainly "involves a question of exceptional importance" warranting en banc review. Fed. R. App. P. 35(a). Not only did the panel depart from a half century of Supreme Court separation-of-powers jurisprudence, but in doing so, it stripped [EPA] of much of its ability to implement the Clean Air Act, this nation's primary means of protecting the safety of the air breathed by hundreds of millions of people.⁴¹

Judge Silberman issued a separate dissent, reluctantly agreeing with Judge Tatel's reading of the Supreme Court's nondelegation jurisprudence.⁴² He wrote separately, however, for at least two reasons. First, he expressed his disapproval of the panel's decision, assuming it viewed the statute to be constitutionally deficient, to remand the rules to EPA to give the Agency a chance to eliminate the ambiguity. Although Judge Silberman did not view the language of § 109(b)(1) as coming close enough to the nondelegation boundaries to raise even a serious constitutional problem, he opined that if it did the correct approach would be either to interpret the statute in a way that avoided the constitutional difficulty—assuming such an interpretation were plausible—or to hold the statute unconstitutional in the absence of such a plausible interpretation.⁴³ Judge Silberman criticized the panel majority's approach as undermining the purpose of the nondelegation doctrine, which is "to ensure that Congress makes the crucial policy choices that are carried into law."⁴⁴

And second, Judge Silberman wanted to make clear that, even though he viewed the statute as being constitutional, he thought that EPA's rule could still be subject to challenge under the arbitrary and capricious standard.⁴⁵ He expressed no view on whether he thought the current rules met this standard.⁴⁶

Analysis

EPA has filed a petition for certiorari in this case. If the Supreme Court grants review, it seems likely that the Court will overturn the D.C. Circuit's constitutional analysis for the reasons stated by both Judge Tatel and Judge Silberman. In short, it would take a radical reworking of the Court's nondelegation jurisprudence to affirm the lower court's approach.

Even if the Court rejects the D.C. Circuit's constitutional analysis, it could still review the revised air quality standards under the arbitrary and capricious standard of review. As the American Trucking panel majority noted, there is a strong body of D.C. Circuit law under § 109 holding that "when there is uncertainty about the health effects of concentrations of a particular pollutant within a particular range, EPA may use its discretion to make the 'policy judgment' to set the standards at one point within the relevant range rather than another."⁴⁷ In this case, however, the real question—at least in the ozone context—would appear to be whether EPA has adequately distinguished between those health effects which it must protect against and those which [30 ELR 10176] it may ignore, not whether EPA has chosen an appropriate standard to protect against a specified health effect.⁴⁸ In this regard, American Lung Ass'n v. U.S. Environmental Protection Agency⁴⁹ seems to be the more germane precedent. Inthat case, the D.C. Circuit remanded EPA's revised sulfur dioxide (SO₂) standard to the Agency because it had failed to adequately explain why short-term SO₂ bursts do not amount to a "public health" problem within the meaning of § 109.⁵⁰

Having said that, EPA's rulemakings in American Trucking would still seem to pass muster under the arbitrary and capricious test. As the authors of the per curiam panel opinion on rehearing acknowledged, in promulgating the revised ozone standard EPA did mention that the effects below 0.08 ppm were transient and reversible.⁵¹ The problem, according to the court, was that EPA did not clearly identify this as a limiting principle, i.e., as establishing the boundary line between those health effects which are cognizable under § 109(b)(1) and those which are not.⁵² The court cited no precedent for requiring this degree of explicitness, however. American Lung simply asked the Agency to explain why "the fact that thousands of asthmatics can be expected to suffer atypical physical effects from repeated five-minute bursts of high-level sulfur dioxide not a public health problem?"⁵³ Here, albeit with respect to a different pollutant and different health concerns, EPA appears to have provided an answer: "Because the effects are transient and reversible."

In other contexts, the Supreme Court has seemed quite comfortable with the idea of giving agencies considerable leeway in drawing lines within broad, congressionally established parameters. In United States v. Riverside Bayview Homes, Inc.,⁵⁴ for example, the Court deferred to the U.S. Army Corps of Engineers' interpretation of "waters of the United States" in the wetlands context after noting that:

In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs—in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of "waters" is far from obvious.⁵⁵

The same can certainly be said of potential health effects: the line between those which are significant and those which are trivial is far from obvious. EPA must draw a line on a continuum that admits of no clear demarcations. Under Riverside Bayview, it would seem that any reasonable attempt by EPA to draw such a line should be upheld.

If American Trucking stands (either because the Court denies certiorari or because it affirms the lower court's result), it will at least delay the implementation of what EPA views as the most important new rules it has promulgated in several years. What is not clear is whether EPA could ultimately achieve the same result, in terms of the stringency of the standards, by proffering better justifications for the lines that it has drawn. As mentioned earlier, in denying EPA's petition for panel rehearing the members of the original panel majority expressed no opinion as to whether EPA's newly proffered justifications could survive the "intelligible principle" test if EPA were to pursue that line of argument on remand.⁵⁶ Moreover, at least one commentator has suggested that "typically, the D.C. Circuit remands without vacating when the court believes that the agency action is consistent with the statute, but requires a more careful explanation."⁵⁷

Beyond its implications in the CAA context, if American Trucking stands it is likely to spawn nondelegation challenges to large numbers of EPA rulemakings. Again, broad delegations of power seem to be the rule and not the exception in the environmental context.⁵⁸ In many cases, it is difficult for the Agency to articulate precisely why it has drawn a regulatory line at one point on a continuum rather than another. If courts adhere to established Court precedent, however (at least absent a major reworking of that precedent in American Trucking), most nondelegation challenges should fail.

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)⁵⁹

Background

This case dealt with the authority of EPA and the Corps to regulate so-called nonadjacent wetlands under the Clean Water Act (CWA). Nonadjacent wetlands are those which neither border, are contiguous to, nor neighbor other waters of the United States.⁶⁰ EPA and the Corps (the Agencies) assert jurisdiction over nonadjacent wetlands in situations where their use, degradation, or destruction could affect interstate or foreign commerce.⁶¹ In the accompanying preamble, the Agencies made clear their view that these wetlands include those that are or would be used as habitat for migratory birds.⁶² The combined effect of this regulation and the accompanying preamble is commonly referred to as the "migratory bird rule."

The Agencies' authority to regulate nonadjacent wetlands has long been controversial. Before the Supreme Court's decision in United States v. Lopez,⁶³ the Ninth Circuit in the [30 ELR 10177] Leslie Salt Co. v. United States⁶⁴ case had upheld the migratory bird rule against both statutory and U.S. Commerce Clause challenges. Additionally, the Seventh Circuit had stressed the reasonableness of the Agencies' view that migratory birds could provide the requisite Commerce Clause nexus:

We also agree with [EPA's Chief Judicial Officer] that it is reasonable to interpret the regulation as allowing migratory birds to be that connection between a wetland and interstate commerce. Throughout North America, millions of people annually spend more than a billion dollars on hunting, trapping, and observing migratory birds. Yet the cumulative loss of wetlands has reduced populations of many bird species and consequently the ability of people to hunt, trap, and observe those birds.⁶⁵

In Lopez, of course, the Court held that Congress could not criminalize the possession of guns in school zones because such possession is not "an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce."⁶⁶ This has come to be known as the "substantially affects" test.⁶⁷ Distinguishing Wickard v. Filburn (Wickard),⁶⁸ the Lopez Court held that the statute at issue did not concern activities which might pose such effects when "viewed in the aggregate."⁶⁹

Since Lopez, the key jurisdictional question in the wetlands context has concerned the constitutionality of the Agencies' assertion of jurisdiction over nonadjacent wetlands in situations where they can show only that the use, degradation, or destruction of those wetlands "could affect" interstate commerce. Put simply, the question is whether the Agencies' rule is consistent with the "substantially affects" test set forth in Lopez.

The first post-Lopez discussion of the migratory bird rule arose in the context of Justice Thomas' dissent from the Court's denial of certiorari in the Leslie Salt case.⁷⁰ In his dissent, Justice Thomas argued that the constitutional basis for creating jurisdiction under the migratory bird rule is "even more far-fetched than that offered, and rejected in Lopez."⁷¹ Justice Thomas went on to state that:

Apparently, the Corps' regulations are based on the assumption, improper in my opinion, that the self-propelled flight of birds across state lines creates a sufficient interstate nexus to justify the Corps' assertion of jurisdiction over any standing water that could serve as a habitat for migratory birds. As the Court of Appeals admitted, the Corps' expansive interpretation of its regulatory powers under the Clean Water Act may test the very "bounds of reason," and, in my mind, likely stretches Congress' Commerce Clause powers beyond the breaking point.⁷²

Two years later, in United States v. Wilson,⁷³ the Fourth Circuit determined that 33 C.F.R. § 328.3(a)(3)—the rule that is the basis for the migratory bird rule—constitutes an impermissible interpretation of the CWA. In so holding, the court relied heavily on its view that the rule poses serious constitutional problems in light of Lopez:

[The rule] purports to extend the coverage of the Clean Water Act to a variety of waters that are intrastate, nonnavigable, or both, solely on the basis that the use, degradation, or destruction of such waters could affect interstate commerce. The regulation requires neither that the regulated activity have a substantial effect on interstate commerce, nor that the covered waters have any sort of nexus with navigable, or even interstate, waters. Were this regulation a statute, duly enacted by Congress, it would present serious constitutional difficulties, because, at least at first blush, it would appear to exceed congressional authority under the Commerce Clause. This regulation is not, however, a statute. Absent a clear indication to the contrary, we should not lightly presume that merely by defining "navigable waters" as "the waters of the United States," 33 U.S.C. § 1362(7), Congress authorized the Corps to assert its jurisdiction in such a sweeping and constitutionally troubling manner. . . . When viewed in light of its statutory authority, 33 C.F.R. § 328.3(a)(3) . . . expands the statutory phrase "waters of the United States" beyond its definitional limit.⁷⁴

The Seventh Circuit's Opinion

In SWANCC, the plaintiff raised three facial challenges to the validity of the migratory bird rule. First, it argued that the rule is unconstitutional in light of Lopez. Second, it urged the court to find that the rule reflects an impermissible interpretation of the CWA. And third, it asserted that the rule is invalid because it was promulgated without notice and comment.⁷⁵

The SWANCC court began its constitutional discussion by noting that the Seventh Circuit had previously determined that "Lopez expressly recognized, and in no way disapproved, the cumulative impact doctrine" as set forth in Wickard.⁷⁶ It paraphrased that doctrine as indicating that "a single activity that itself has no discernible effect on interstate commerce may still be regulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce."⁷⁷ The court thus determined that the relevant question before it was "whether the destruction of the natural habitat of migratory birds in the aggregate 'substantially affects' interstate commerce."⁷⁸ In answering this question in the affirmative, the court referred to information generated by the U.S. Census Bureau to the effect that "approximately 3.1 million Americans spent $ 1.3 billion to hunt migratory birds in 1996, and that about 11 percent of them traveled across state lines to do so."⁷⁹ It further cited the same census information for the proposition that in that same year [30 ELR 10178] 14.3 million Americans traveled to another state specifically for the purpose of observing migratory birds.⁸⁰

In response to SWANCC's argument that the court's approach to the Commerce Clause analysis would result in every puddle being regulated, the court stated that:

Any suggestion that next the Corps will be trying to regulate the filling of every puddle that forms after a rainstorm, at least if a bird is seen splashing in it, misses the point. A "habitat" is not simply a place where a bird might alight for a few minutes, as SWANCC suggests, but rather "the place where a plant or animal species naturally lives or grows." Webster's Third New International Dictionary 1017 (1993). Before the Corps may assert jurisdiction under the migratory bird rule, it must first make a factual determination that a particular body of water provides a habitat for migratory birds, which it has done here.⁸¹

With respect to the statutory argument, the SWANCC court engaged in a Chevron, U.S.A., Inc. v. Natural Resources Defense Council⁸² "step 2" analysis; that is, the court assumed that the terms "navigable waters" and "waters of the United States" are ambiguous and, therefore, focused on the reasonableness of the Agencies' interpretation. In so doing, the court referenced what it viewed as the "well established" proposition that, as recognized in three prior Seventh Circuit opinions, "the geographical scope of the [CWA] reaches as many waters as the Commerce Clause allows."⁸³ The court thus agreed with the Ninth Circuit's view in Leslie Salt that "because Congress' power under the Commerce Clause is broad enough to permit regulation of waters based on the presence of migratory birds, it is certainly reasonable for the EPA and the Corps to interpret the Act in such a manner."⁸⁴

SWANCC raised two further arguments in seeking to establish the unreasonableness of the Agencies' interpretation. First, it cited Wilson for the proposition that it was unreasonable for the Agencies to assert jurisdiction over waters that "could" affect interstate commerce.⁸⁵ And second, it contended that the term "waters of the United States" could not reasonably be interpreted with a view toward protecting wildlife rather than water quality.⁸⁶ The court rejected these arguments in turn, opining that the first issue was not properly before it because "the unchallenged facts show that the filling of the 17.6 acres [at issue in SWANCC] would have an immediate effect on migratory birds that actually use the area as a habitat,"⁸⁷ and responding to the second by noting that the CWA's "stated purpose is 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'"⁸⁸

Turning finally to SWANCC's contention that the migratory bird rule was invalid because it was promulgated without notice and comment as required under the Administrative Procedure Act,⁸⁹ the court noted that the resolution of this issue hinges on whether the rule was a "legislative rule" (with respect to which notice and comment would be required) or an "interpretive rule" (which would make it exempt from notice-and-comment requirements pursuant to 5 U.S.C. § 553(b)(3)(a)).⁹⁰ The court decided that it was the latter, because the preambulatory language relating to migratory birds was offered merely as an example of a type of water that would come within the regulatory formulation, i.e., a type of water the use, degradation, or destruction of which could affect interstate commerce.⁹¹ Interestingly, in reaching this result the Seventh Circuit never even acknowledged the Fourth Circuit's prior determination to the contrary in Tabb Lakes, Ltd. v. United States.⁹² From a policy perspective, however, the Seventh Circuit noted its view that agencies should be free to offer concrete examples of how their rules will apply without going through formal notice-and-comment procedures.⁹³

Analysis

SWANCC provides the federal government with a strong precedent to offset the much more narrow approach reflected in Wilson. Unlike the Wilson court, the Seventh Circuit in SWANCC directly confronted the constitutional issue and found that the regulation was consistent with the Commerce Clause. While on prior occasions the Supreme Court has sometimes narrowly construed statutes to avoid Commerce Clause difficulties,⁹⁴ such an approach seems particularly inappropriate in a statutory context in which, as courts have recognized, Congress intended to assert jurisdiction over all waters that are properly subject to regulation under the Commerce Clause.⁹⁵

As to the substance of the court's constitutional analysis, the Seventh Circuit seems to be on fairly firm footing. Lopez did not overrule Wickard; in fact, the Seventh Circuit was correct in noting that the Lopez Court expressly recognized the ongoing validity of the cumulative impact doctrine.⁹⁶ [30 ELR 10179] Given that, it seems that the focus should then shift to the question whether, when viewed in the aggregate, the use, degradation, or destruction of nonadjacent wetlands will substantially affect interstate commerce. Neither Congress nor the Agencies have made any express finding on this point. But this does not end the analysis. In Lopez, for example, the Court, after first determining that Congress had made no express findings as to whether the activities regulated under the gun possession law affected interstate commerce, went on to engage in a lengthy inquiry of its own regarding that issue.⁹⁷

As noted above, in SWANCC, the Seventh Circuit referenced studies regarding the impacts of migratory birds on interstate commerce in upholding the migratory bird rule.⁹⁸ Interestingly, however, none of these studies appears to have focused on the specific question of whether the destruction of nonadjacent wetlands, even in the aggregate, affects interstate commerce. Rather, in its constitutional discussion the court seemed to leap from the evidence that migratory birds have Commerce Clause implications to the conclusion that the migratory bird rule is constitutional without examining this more specific factual predicate, i.e., that the destruction of this type of habitat would, in the aggregate, diminish the number of migratory birds and, thus, the associated interstate commerce.

This is likely a situation of "no harm, no foul," however. First, it seems self-evident that, if all nonadjacent wetlands were destroyed, there would be an affect on those migratory birds that rely on those wetlands for habitat. Second, as the SWANCC court noted elsewhere in its opinion, there was an "unchallenged" showing in that case "that the filling of the 17.6 acres would have an immediate effect on migratory birds that actually use the area as habitat."⁹⁹ This alone would seem to be sufficient evidence to establish the necessary link between the destruction of nonadjacent wetlands and the commerce associated with migratory birds.

On the statutory question, the SWANCC court also appears to be on firm ground, although its analysis suffers from being overly brief. Again, Congress intended that the term "waters of the United States" be defined to encompass all waters that are properly subject to regulation under the Commerce Clause.¹⁰⁰ It should be manifest, therefore, that the Agencies can "reasonably" assert jurisdiction (within the context of a Chevron analysis)¹⁰¹ over nonadjacent wetlands so long as two preconditions are met: (1) if the term "waters" can reasonably be construed to include nonadjacent wetlands; and (2) if the rule establishing jurisdiction is consistent with the Commerce Clause. In SWANCC, the Seventh Circuit acknowledged only the second of these issues and, after determining that the migratory bird rule passed constitutional muster, assumed that its task was done.¹⁰² This approach, however, pretends away a significant, although by no means insurmountable, issue.

The Supreme Court already has determined that the Agencies acted reasonably in construing the term "waters" to include adjacent wetlands. In Riverside Bayview,¹⁰³ the Court began its discussion by noting that "on a purely linguistic level, it might appear unreasonable to classify 'lands,' wet or otherwise, as 'waters.'"¹⁰⁴ Nonetheless, it concluded its analysis in the following terms:

We cannot say that the Corps' conclusion that adjacent wetlands are inseparably bound up with the "waters" of the United States—based as it is on the Corps' and EPA's technical expertise—is unreasonable. In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps' ecological judgment about the relation between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.¹⁰⁵

In Riverside Bayview, the Court expressly reserved the question whether the Agencies have the authority to regulate nonadjacent wetlands.¹⁰⁶ However, several aspects of the Court's analysis suggest that it would also recognize the Agencies' authority to regulate these more isolated wetlands. First, the Court emphasized the difficulty of drawing a line between what qualifies as "water" versus "land":

In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs—in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of "waters" is far from obvious.¹⁰⁷

The Court went on to determine that, faced with such difficulties, the Corps could "appropriately look to the legislative history and underlying policies of its statutory grants of authority."¹⁰⁸

While the Supreme Court was making this point in the context of adjacent wetlands, its logic is equally applicable in the context of their more isolated cousins. As it is difficult to tell where "water ends and land begins," it is also difficult to draw a line between those isolated areas that are "wet" enough to constitute waters and those which are not. The dividing lines on the continuum that includes lakes, ponds, swamps, and bogs are by no means precise. Given this lack of precision, resort to the statutory purposes also seems appropriate here.

[30 ELR 10180]

On this front, the statutory scheme is even more helpful than the SWANCC court recognized. In addition to referencing the purpose of restoring and maintaining the "biological integrity of the Nation's waters," § 101 states that it is one of the Act's goals and policies to "provide] [ for the protection and propagation of . . . wildlife . . . ."¹⁰⁹ Additionally, § 404(c) gives EPA the authority, in deciding whether to preclude the Corps from issuing a particular permit, to take into account whether the discharge will have "unacceptable adverse effects on . . . wildlife . . . ."¹¹⁰ Further, as the Ninth Circuit noted in Leslie Salt, the Court's discussion in Riverside Bayview concerning the biological significance of adjacent wetlands also resonates in the context on non-adjacent wetlands:

In [Riverside Bayview], the Court held that it was reasonable for the Corps to exercise jurisdiction over wetlands adjacent to other waters. The Court cited with apparent approval the Corps' findings that "wetlands . . . may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water." [474 U.S. at 135]. The Court also referred to the Corps' assessment that "adjacent wetlands may serve significant natural biological functions, including food chain production, general habitat, and nesting, spawning, and rearing and resting sites for aquatic . . . species." [474 U.S. at 134-35 (quotation omitted)]. These statements applied to adjacent wetlands, not to isolated seasonally ponded areas as are at issue in this case. . . . Nevertheless, the Corps' rationale for regulating adjacent wetlands may have some application to isolated waters as well. The seasonally ponded areas may have a connection to the aquatic ecosystem in their role as habitat for migratory birds.¹¹¹

One final aspect of SWANCC deserves mention. As noted above, the Seventh Circuit responded to SWANCC's "limitless jurisdiction" argument by quoting Webster's for the proposition that "[a] 'habitat' is not simply a place where a bird might alight for a few minutes, as SWANCC suggests, but rather 'the place where a plant or animal species naturally lives or grows.'"¹¹² While the court's attempt to differentiate puddles from legitimate habitat is well-intentioned, the construct that it seized upon may be unfortunate. In the end, the true definition of migratory bird habitat probably should have less to do with whether the birds remain in one spot for any specific period of time (or certainly with whether they do any growing there) than with the question of whether the area provides them with the features upon which they depend in their migratory travels. The Agencies' definitions of wetlands may fairly be read as an attempt to identify the characteristics of important aquatic habitat.¹¹³

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.¹¹⁴

Background

Gaston Copper involved the degree of proof that citizen plaintiffs must submit in order to establish the first two elements of standing: injury and causation (or "traceability"). In many pollution cases, the alleged injury will involve an immediate and observable negative impact, such as a discernible plume of air pollution or the obvious discoloration of a water body. In these circumstances, the courts have had little difficulty in finding the injury requirement met.¹¹⁵ In other situations, however, the harm may be more uncertain, or further off in the future, or may involve only a risk of harm that may seem to border on being trivial within the framework of modern risk analysis. In these situations, questions arise regarding the showing plaintiffs must make with respect to how likely it is that the risk will manifest itself, and how significant the risk must be. In Lujan v. Defenders of Wildlife,¹¹⁶ the Court stated that the injury must be both "concrete and particularized," and either "actual or imminent."

What this formulation means in specific cases is far from clear, however. In the pollution context, some courts have deemed the injury requirement satisfied whenever the plaintiffs have alleged that the defendant's activities will result in an increase in their risk of being exposed to harmful pollutants. For example, in Louisiana Environmental Action Network v. U.S. Environmental Protection Agency,¹¹⁷ an environmental group challenged a variance that EPA had created to the "land ban" requirements under the Resource Conservation and Recovery Act (RCRA). The D.C. Circuit summarized the alleged injury in the following terms:

Under LEAN's theory, "lower quality" (less treated) wastes will be deposited in Carlyss [a site that some of LEAN's members lived near] . . . . Under EPA's theory the new rule will increase the quantity of waste disposed of at Carlyss, for it adopted the rule lest holders of hazardous waste who were free to choose would forego costly excavation and redisposal (with the likely destination, in Louisiana, of Carlyss) in favor of thriftier in-place solutions. Either way, application of the variance rule will lower the average quality of waste deposited at Carlyss, and under EPA's view its application will also increase the quantity of such waste. . . .¹¹⁸

The panel majority (Judges Williams and Garland) summarily concluded that "to the extent that there is any residual risk in the lower-quality wastes, application of the rule will increase the risk of harm to LEAN members living near Carlyss."¹¹⁹ The court also determined that the harm was sufficiently imminent, relying on the fact that there were [30 ELR 10181] more than 130 sites in Louisiana that had been determined to require cleanup, and that "evenif the variance-to-remediation ratio is fairly low, the amount of such activities creates a very 'substantial probability' that some variances will be granted . . . ."¹²⁰

In Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc.,¹²¹ by contrast, the Third Circuit appeared to establish a much more demanding test. In that case, the defendant re-raised its standing challenge on appeal after the lower court determined, at the penalty stage of the lawsuit, that it should reduce the relevant fine because the defendant's discharges had not harmed the relevant water body.¹²² The Third Circuit first rejected the plaintiff's argument that it had standing because its members' use and enjoyment of two downstream water bodies were diminished because they knew the water bodies contained "pollution" from the defendant's discharges. The court stated that:

The knowledge that a corporation has polluted waters is an "injury" suffered by the public generally. . . . Absent a showing of actual, tangible injury to the River or its immediate surroundings, PIRG's members are no less "concerned bystanders" than any other citizen who takes an interest in our environment. . . .¹²³

More significantly, the court deemed insufficient the plaintiff's allegations of harm based on the alleged effects of the pollutants. The violations in Magnesium Elektron involved temperature, total organic carbon (TOC), and sodium. Notably, one of the alleged injuries involved a claim by one of the plaintiff's affiants, Julie Howat, that she avoided drinking water taken from a downstream water body because she was concerned that it might be contaminated.¹²⁴ In analyzing whether the relevant discharges caused any tangible injury, the Third Circuit first embraced the lower court's determination that the temperature violations had been harmless based on the defendant's unrebutted evidence that ambient (natural) temperatures always prevailed in the water body notwithstanding the violations.¹²⁵ With respect to the TOC violations (which resulted from geese droppings in the defendant's pond), the court accepted the lower court's conclusion that, because the relevant water body was nutrient-deprived, the relevant TOC violations actually benefitted the water body by adding nutrients to it.¹²⁶ On the sodium front, the court acknowledged the plaintiff's argument that, even if the defendant's salt by itself did not cause problems, it could combine with other sources of salt to cause harm, but concluded that there was no evidence in the record before it to support this cumulative effects argument.¹²⁷

With respect to the required showing of causation, several circuits considering citizen suits under the CWA have embraced the three-part test first enunciated in Public Interest Research Group of New Jersey v. Powell Duffryn Terminals, Inc. (Powell Duffryn),¹²⁸ under which the plaintiff, in order to demonstrate a "substantial likelihood" that the defendant caused the plaintiff's harm, must demonstrate that the defendant:

(1) discharged some pollutant in concentrations greater than allowed by its permit 2) into a waterway in which the plaintiffs have an interest that is or may be adversely affected by the pollutant and that 3) this pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs.¹²⁹

The courts have differed, however, in their application of this test. In Powell Duffryn itself, the defendant had discharged oil and grease in excess of its permit limits into the Kill Van Kull, a befouled water body that separates Staten Island and the northern shore of New Jersey.¹³⁰ The plaintiffs cited as their injury their having observed an oily sheen on the water.¹³¹ Although the defendant submitted expert affidavits to the effect that its operations did not adversely affect water quality in the Kill Van Kull "except perhaps in some purely speculative and theoretical way,"¹³² the court found that the plaintiffs had met the three-part test. In a footnote, the court stated that:

Plaintiffs need not show "to a scientific certainty" that the oil they saw came from PDT's effluent. This tort-like causation is not required by Article III and is apparently an attempt by PDT to negate the strict liability standard of the Act. Since the Act forecloses PDT from raising such an argument at the liability stage, PDT attempts to raise it under the guise of standing. . . . To negate PIRG's affidavits, PDT must show either 1) that it does not discharge oil and grease into the Kill Van Kull in exceedance of its permit or 2) plaintiffs' statements that they saw oil on the water are [untrue].¹³³

In Friends of the Earth, Inc. v. Crown Central Petroleum Corp. (Crown Central),¹³⁴ by contrast, the plaintiff's affiants used the allegedly affected resource at a point that was 18 miles and three tributaries downstream from the relevant discharge point. The court concluded its traceability analysis in the following terms:

In short, FOE and its members relied solely on the truism that water flows downstream and inferred therefrom that any injury suffered downstream is "fairly traceable" to unlawful discharges upstream. At some point this common sense observation becomes little more than surmise. At that point certainly the requirements of Article III are not met.¹³⁵

[30 ELR 10182]

While the plaintiff pointed to the absence of any evidence that the pollutants from the defendant's discharges evaporated, or were diluted to the point where they would cause no concern, or settled to the bottom of the tributaries before reaching the location where its affiants came into contact with the resource, the court concluded that the plaintiff bore the burden of showing causation and had not met it in this case.¹³⁶

The Fourth Circuit's Opinion

Gaston Copper was another CWA case in which the plaintiff organizations were alleging that the defendant's permit violations adversely affected their members' use and enjoyment of the relevant water bodies. The plaintiffs' best standing affiant, Mr. Shealy, testified that South Carolina officials had tested his lake the year before the lawsuit was filed and had found copper, zinc, nickel, iron, and polychlorinated biphenyls (PCBs), all of which pollutants the defendant's smelting facility had discharged in the past.¹³⁷ As a result, he testified that he was injured in three ways: (1) he reduced his consumption of the fish from the lake; (2) he restricted his grandchildren's access to the water; and (3) his property value had diminished because the lake was known to be polluted.¹³⁸ Despite this evidence, the panel majority (Judges Hamilton and Williams) found that the plaintiffs had not demonstrated that they were injured because:

No evidence was presented that established that Shealy's lake . . . [was] in fact adversely affected by pollution . . . . Indeed, there were no toxicity tests, or tests or studies of any kind, performed on waters from Shealy's lake . . . . Further, none of the members even testified that there was an observable negative impact on the waters that they used or the surrounding ecosystem of such water. Their concerns were based on mere speculation as to the presence of pollution without any evidence to support their fears or establish the presence of pollutants in the allegedly affected waters.¹³⁹

The panel majority went on to find that, even assuming the plaintiffs had shown injury, they had not demonstrated that their injuries were traceable to the defendant's permit violations (or to those of its predecessor—the plant had recently been sold).¹⁴⁰ The relevant facts in Gaston Copper appear to have included the following:

. Gaston Copper discharged into Lake Watson, which flows into the Boggy Branch, which, in turn, is a tributary of Bull Swamp Creek, which eventually flows into the North Fork of the Edisto River.¹⁴¹ The distance from Lake Watson to the North Fork of the Edisto River was somewhere between 10 and 16.5 miles.¹⁴²

. Mr. Shealy's lake is four miles downstream from Watson Lake and is fed in part by Bull Swamp Creek; however, there are 31 ponds between Gaston Copper and Mr. Shealy's lake, and 3 other tributaries feed into Mr. Shealy's lake¹⁴³

. The South Carolina Department of Health and Environmental Control (DHEC) had identified the same heavy metals and PCBs in Mr. Shealy's lake as were contained in the plant's discharges.¹⁴⁴ There was apparently no information about other potential sources of these contaminants; and

. In response to a question raised during the comment period for Gaston Copper's permit, the DHEC had indicated the "runoff" from Gaston Copper's discharges would "go to Boggy Branch to Bull Swamp to the Edisto River."¹⁴⁵ Unfortunately, none of the relevant opinions indicates whether Gaston Copper's pollutants would have to travel through Mr. Shealy's lake to get to the Edisto River. The opinions do not preclude the possibility that, while the Bull Swamp Creek feeds into Mr. Shealy's lake, this could be a side channel that does not feed back into either the Creek or the Edisto River.

Based on these facts, the panel majority found that the plaintiffs failed to demonstrate causation. Applying the three-part Powell Duffryn test, the court determined that the plaintiffs had "failed to establish the second requirement of the substantial likelihood analysis: that Gaston Copper's discharges were present in a waterway in which [plaintiffs'] members had an interest that is or may be adversely affected by the effluent."¹⁴⁶ In a footnote, the court stated that:

The fact that DHEC tested Shealy's lake in 1990 and found pollutants in the lake does not establish that there was a substantial likelihood that Gaston Copper's subsequent conduct caused Shealy's alleged injury. No evidence was admitted that the pollutants found in Shealy's lake by DHEC in 1990 were traceable to Gaston Copper's predecessor. Thus, the DHEC 1990 test does not establish that there was a substantial likelihood that Gaston Copper's subsequent discharges after 1991 caused Shealy's alleged harm.¹⁴⁷

The majority further determined that the distance between Gaston Copper's facility and Shealy's lake was simply "too [30 ELR 10183] great to infer causation."¹⁴⁸ In so holding, the court emphasized that there are "thirty-one intervening ponds and three other tributaries running into his lake."¹⁴⁹

Finally, in a footnote the panel majority found that the plaintiffs' failure to show that their members "used a waterway adversely affected or capable of being adversely affected by the defendant's [ [ conduct"¹⁵⁰ also precluded any finding that they had standing to challenge the defendant's alleged failure to have complied with its monitoring and reporting obligations.

Chief Judge Wilkinson dissented, arguing that the plaintiffs had established both injury and causation. On the injury front, Judge Wilkinson maintained that the plaintiff had established both current harm and the threat of future harm. He particularly focused on the latter:

Gaston Copper's permit violations ipso facto pose a concrete threat to the receiving waters within the range of its discharge, including the lake on Shealy's property. By establishing that Gaston Copper is polluting Shealy's nearby water source, [the relevant plaintiff] has proven an increased risk to its member's downstream uses. This threatened injury is sufficient to provide injury in fact.

The majority would, however, require evidence that it can touch and feel before it is willing to acknowledge Shealy's threatened injury. But the Constitution does not require Shealy to wait until his lake becomes "barren and sterile" or assumes an "unpleasant color and smell" before he may seek relief in court. Nor must Shealy produce tests to prove that his injury is imminent. Indeed, he cannot—for if an injury is threatened it by definition has not yet occurred.¹⁵¹

Judge Wilkinson further argued that the fact Mr. Shealy's lake was only four miles downstream from Lake Watson should give rise to an inference of traceability.¹⁵² Moreover, he found it very significant that the same pollutants were found in both the defendant's discharges and Mr. Shealy's lake.¹⁵³ And further, Judge Wilkinson argued that, far from relying on the mere "proposition that water runs downstream to prove traceability," the plaintiffs "submitted evidence that the company's discharge will travel 16.5 miles downstream—well beyond the four-mile point that is Shealy's lake."¹⁵⁴

Finally, Chief Judge Wilkinson accused the majority of requiring tort-like causation to an extent unprecedented in prior opinions.¹⁵⁵ He also chastised the majority for its "virtual silence on the issue of threatened injury," finding it "at odds with the wide recognition that threats or increased risk constitute cognizable harm."¹⁵⁶ Because Judge Wilkinson found that the plaintiffs had shown that Shealy's lake was certainly "capable of being adversely affected" by the defendant's discharges, he also rejected the majority's determination that the plaintiffs had no standing to challenge Gaston Copper's alleged failure to comply with its monitoring and reporting obligations.¹⁵⁷

Analysis

The Fourth Circuit's opinion in Gaston Copper seems shockingly regressive, particularly in its discussion of the injury element of the standing test. Mr. Shealy's testimony clearly established that he was among the injured. The DHEC's tests of his lake, conducted only a year before the lawsuit was filed, indicated the presence of heavy metals and PCBs.¹⁵⁸ As a result, he altered his behavior by consuming less fish from the lake and by restricting his grandchildren's access to the lake.¹⁵⁹ It is difficult to fathom how these could fail to qualify as constitutionally cognizable injuries.

It is not entirely clear why the panel majority deemed this evidence insufficient. At one point, the majority opinion seems to discount the DHEC study because it was performed in 1990, before Gaston Copper took over the operation of the relevant smelter.¹⁶⁰ But this should not be relevant at the "injury" stage of the analysis. At this point, the only question should be whether Mr. Shealy was injured; any issues as to the source of the injury should be resolved at the "causation" stage of the analysis.¹⁶¹ Moreover, the majority's disparagement of the 1990 sampling results ignores the fact that for the first three years after it acquired the smelter (until well after the lawsuit was filed), Gaston Copper operated the smelter in the same manner, and with the same wastewater treatment, as had its predecessor.¹⁶²

Elsewhere, the court seems to downplay the plaintiffs' evidence of sediment contamination in Boggy Branch and Bull Swamp Creek, indicating that the concentrations of heavy metals present "were less than previous years, and similar to values seen throughout South Carolina."¹⁶³ These points should be irrelevant. The fact that a water body may be cleaner than it used to be, or no less contaminated than other waterways in the region, simply has nothing to do with whether one that is exposed to such contamination as does exist is suffering from a constitutionally cognizable injury. As Chief Judge Wilkinson pointed out by in his dissent:

These studies, however, present only year-to-year comparisons. They thus show at most that Gaston Copper is not performing worse than in previous years, not that its current discharge has no injurious effect. The facility's past violations do not immunize Gaston Copper's current defalcations. As for the comparison to other locations in South Carolina, the Clean Water Act requires Gaston Copper not to meet other denominators, but to discharge at safe levels established by his permit.¹⁶⁴

[30 ELR 10184]

The third, and perhaps the most important, basis for the majority's finding regarding Shealy's lack of an injury prong appears to have been that the plaintiffs did not put on sufficient evidence as to the seriousness of the contamination in Shealy's lake. Again, the majority stated that:

No evidence was presented that established that Shealy's lake . . . [was] in fact adversely affected by pollution . . . . Indeed, there were no toxicity tests, or tests or studies of any kind, performed on waters from Shealy's lake . . . . Further, none of the members even testified that there was an observable negative impact on the waters that they used or the surrounding ecosystem of such water. Their concerns were based on mere speculation as to the presence of pollution without any evidence to support their fears or establish the presence of pollutants in the allegedly affected waters.¹⁶⁵

This paragraph is difficult to decipher. On the one hand, the last sentence could be read as a refutation of the fact that there was any pollution in Mr. Shealy's lake. This reading is undermined, however, by the accompanying footnote:

Further, the fact that DHEC tested Shealy's lake in 1990 and found pollutants in the lake does not establish that Shealy's interests in the lake were actually, or in imminent threat of being, injured. The dissent again relies on the stipulation that water flows from Boggy Branch to Bull Swamp Creek and into the Edisto River. However, no evidence was admitted that the pollutants found in Shealy's lake by DHEC in 1990 were traceable to Gaston Copper's predecessor. Thus, the DHEC 1990 test does not suggest, nor let alone prove, that Gaston Copper's discharges after 1991 actually injured, or will imminently injure, Shealy's lake.¹⁶⁶

This footnote is itself obscure. The last two sentences appear to indicate that the court was again confusing injury and causation analysis.¹⁶⁷ When read together, however, the text and the footnote suggest that the majority may have felt that the plaintiffs needed to show not just that there were contaminants in Shealy's lake, but that these contaminants were having harmful effects on the ecology of the lake. Only in this sense could the plaintiffs' showing be said to have been based on "mere speculation" in the absence of toxicity tests or the like.

This, of course, raises the question of how much the quality of a particular water body has to be altered before a plaintiff that uses it (or who uses it less often) will be deemed to have suffered an injury that is cognizable under the Constitution. In this sense, Mr. Shealy can be seen as being similar to Ms. Howat in Magnesium Elektron: Mr. Shealy reduced his fish consumption and restricted his grandchildren's access to his lake in response to his awareness that his lake was contaminated with heavy metals and PCBs¹⁶⁸; and Ms. Howat avoided drinking water from downstream of the defendant's discharge point because she was concerned that it might be contaminated by the defendant's discharges.¹⁶⁹

These cases thus pose the issue of what concentrations of heavy metals or PCBs have to (or how much TOC or salt has to) be in the water before courts will recognize the legitimacy of an injury based on foregone use. It seems eminently reasonable that one would decrease one's consumption of fish from a lake if one knew of the presence of PCBs (which tend to bioaccumulate) in lake sediments; it also seems reasonable that one might refrain from drinking downstream water if one knows that an upstream discharger is violating TOC (bacteria) limits.¹⁷⁰ Unfortunately, neither the Gaston Copper court nor the Magnesium Elektron court ever explained why these responses were unreasonable, or why they did not give rise to constitutionally cognizable injuries. In Gaston Copper, the court merely decried the plaintiffs' failure to submit toxicity tests¹⁷¹; in Magnesium Elektron, the Third Circuit appeared to pretend away this problem by presuming that the mere presence of TOC, by itself, could not give rise to any legitimate concerns on the part of one who would drink the water downstream.¹⁷² The outcomes in these cases stand in sharp contrast to that in Louisiana Environmental Action,¹⁷³ where the D.C. Circuit recently found that an unquantified "risk of harm" provided the requisite constitutional injury.¹⁷⁴ They also seem to be flatly inconsistent with the approach the Supreme Court even more recently took in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.¹⁷⁵

The Fourth Circuit's causation analysis in Gaston Copper is also suspect. Ultimately, the question in this context boils down to the degree of proof that plaintiffs must submit in order to demonstrate either that the harm they are suffering from was in fact caused by the defendant's allegedly illegal activities, or that they are realistically threatened by those activities. The Gaston Copper court purported to apply the Powell Duffryn test,¹⁷⁶ which by its terms requires the plaintiffs to show only that the defendant unlawfully discharged a pollutant into the waterway into which the plaintiffs have an interest, and that the pollutant causes or contributes to the type of injuries alleged by the plaintiffs.¹⁷⁷ But as Chief Judge Wilkinson pointed out, the plaintiffs in Gaston Copper clearly met this test:

The majority denies that these pollutants are traceable to Gaston Copper's predecessor. But DHEC's testing shows that the plant has in the past (1) discharged a pollutant into the upstream waterway (2) of the type that appeared in Shealy's lake and (3) of the type that causes the injury of which he complains. I am not sure what additional evidence the majority would require.¹⁷⁸

[30 ELR 10185]

The majority's application of the Powell Duffryn test seems somewhat schizophrenic. At the outset, it seems to read Powell Duffryn as requiring the plaintiffs to establish that Gaston Copper's pollutants were in fact in Mr. Shealy's lake.¹⁷⁹ In the main, however, the court seemed to be relying on Crown Central in determining that, given the 4-mile distance and the 31 intervening lakes, it was simply unreasonable to infer causation in this case absent more specific evidence.¹⁸⁰ But the case the plaintiffs put on in Gaston Copper was different in two important respects from that which the plaintiff put on in Crown Central. First, they submitted the results of the DHEC's sampling of Shealy's lake, which revealed that the pollutants contained therein were a precise match with those which Gaston Copper's predecessor had been discharging (and which Gaston Copper continued to discharge after the complaint had been filed).¹⁸¹ And second, the Gaston Copper plaintiffs submitted the DHEC's official statement that Gaston Copper's discharges would affect the waterways all the way down to the confluence of Bull Swamp Creek and the Edisto River, 16.5 miles downstream.¹⁸²

The majority responded to both of these points in a footnote, disparaging the first as constituting "no evidence . . . that the pollutants found in Shealy's lake . . . were traceable to Gaston Copper's predecessor," and the second as "simply stating the truism that water flows downstream."¹⁸³ But this seems like a remarkably harsh view of the evidence. Indeed, it is clear that the plaintiffs in Gaston Copper made a far stronger case in terms of establishing causation than did the plaintiffs in Powell Duffryn, who showed only that they observed an oily sheen on the water downstream of the defendant's plant.¹⁸⁴ Chief Judge Wilkinson was correct in concluding that the panel majority's rejection of the plaintiffs' showing in this regard can only be construed as establishing a requirement that plaintiffs demonstrate tort-like causation as a predicate to establishing jurisdiction in citizen suits.¹⁸⁵

Other Notable Decisions (by Statutory Category)

Clean Water Act

Other than SWANCC, the most noteworthy CWA decision of the past year was probably the Ninth Circuit's decision in Defenders of Wildlife v. Browner.¹⁸⁶ In that case, the court determined that EPA is not required to ensure that municipal stormwater permits issued under § 402(p)(3)(B) of the CWA comply with water quality standards. In reaching this result, the court contrasted § 402(p)(3)(A)'s treatment of industrial stormwater permits—which must ensure compliance with all of the requirements of § 301, including § 301(b)(1)(C)'s mandate that discharges comply with water quality standards¹⁸⁷—with § 402(p)(3)(B)'s treatment of municipal stormwater permits, which are only required to contain controls reducing "the discharge of pollutants to the maximum extent practicable."¹⁸⁸ The court determined that this differing treatment "unambiguously demonstrates that Congress did not require municipal storm-sewer discharges to comply strictly with [§ 301(b)(1)(C)]."¹⁸⁹

At the same time, however, the Defenders of Wildlife court determined that EPA has the authority to compel municipal stormwater dischargers to comply with water quality standards if the Agency so chooses. In reaching this conclusion, the court relied on the fact that, in addition to requiring EPA to impose controls meeting the "maximum extent practicable" standard, § 402(p)(3)(B) compels the inclusion of "such other provisions as the Administrator . . . determines appropriate for the control of such pollutants."¹⁹⁰ Thus, the upshot of Defenders of Wildlife is that EPA has the discretion—but is not required—to compel municipal stormwater dischargers to comply with water quality standards.

The other significant CWA case involved the wetlands program. In United States v. Mango,¹⁹¹ the Second Circuit overturned the district court's bizarre determination that the Secretary of the U.S. Army could not provide for the delegation of his authority to issue § 404 permits to district engineers within the Corps. Additionally, the court determined that the Corps may include in its permits conditions that relate only indirectly to the discharge of dredged or fill material. On the first point, the court applied a Chevron analysis and, after first finding that § 404 is ambiguous on the question of whether the Chief of Engineers could subdelegate permit issuance authority to the district engineers, concluded that the Corps' interpretation as to the permissibility of such a subdelegation was reasonable given the large number of permit applications filed.¹⁹²

On the second point, the relevant permit in Mango incorporated certain conditions that the Federal Energy Regulatory Commission had established through its environmental impact statement under the National Environmental Policy Act (NEPA).¹⁹³ These conditions included, for example, requirements that the applicants install and maintain sediment filter devices at the edge of the wetlands, and that they place trench spoil at least 10 feet away from the streambanks. While the Second Circuit did not pass on the propriety of including any of these specific conditions in a § 404 permit, it did establish an analytical framework that would appear to support conditions of this general type:

Here deference is due to the reasonable interpretations of the Secretary and the Administrator as contained in the regulations they promulgated jointly, pursuant to [§ 404(b)]. These regulations indicate that permit conditions can be indirectly or directly related to the discharge [30 ELR 10186] so long as they are reasonably related to it. See, e.g., 40 C.F.R. § 230.1(c) (providing that the Secretary must consider whether the discharge will "have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystems of concern"); 230.76(d) (suggesting minimizing the adverse impact of a discharge by "following discharge procedures which avoid or minimize the disturbance of aesthetic features of an aquatic site or ecosystem"); and 230.74(b) (suggesting "employing appropriate maintenance and operation on equipment or machinery. . . .") Moreover, the regulations reasonably interpret the statutory mandate that the Secretary consider the effect of discharges "on human health or welfare," "ecosystem diversity," and "esthetic, recreation and economic values," [§ 403(c)(1)(A), (B), (C) (as referred to in ]§ 404(b))[], and imply that the district court's requirement that permit conditions be directly related to a discharge is unduly restrictive. In our view, permit conditions are valid if they are reasonably related to the discharge, whether directly or indirectly. The CWA is reasonably interpreted to allow the Secretary to consider the cumulative effect of a discharge on an entire ecosystem rather than confining him to consideration of the effects of the permitted discharge on the river into which it is discharged. . . .¹⁹⁴

At the same time, the court rejected the Corps' broader argument that its public interest regulations allow it to impose conditions on not just discharge, but also on other aspects of the activity associated with the discharge.¹⁹⁵ In a footnote, the court stated that:

When properly read, the public interest regulations do not indicate an intent to regulate the entire activity rather than the permitted discharge. Although the regulation refers to the "proposed activity," the activity that the Secretary permits pursuant to section 1344 is the discharge. Therefore, the conditions must be related to the discharge itself.¹⁹⁶

Clean Air Act

Other than American Trucking, the most significant CAA case of the year was probably Sierra Club v. EPA.¹⁹⁷ In that case, the D.C. Circuit established some ground rules for the establishment of the "maximum achievable control technology" (MACT) for medical waste incinerators (MWIs) under § 129(a)(2) of the CAA.¹⁹⁸ Because the language of § 129(a)(2) largely tracks the generally applicable MACT formulations under § 112(d) of the CAA,¹⁹⁹ the court's discussion has relevance well beyond the MWI context.

The major issue in Sierra Club involved EPA's methodology for establishing the "floors" that it used in establishing MACT for existing sources. Under § 129(a)(2) (as is generally the case under § 112(d)(3)), EPA must establish MACT for existing sources at a level that is at least as stringent (hence the "floor" vernacular) as the average emission limitation achieved by the best performing 12 percent of units within the particular category. For MWIs, however, EPA had found that fewer than 12 percent of the sources in some categories were subject to any preexisting regulatory controls.²⁰⁰ EPA responded to this situation by assuming that the facilities that had no regulatory controls in fact had no emissions controls.²⁰¹

While first finding that the CAA does not preclude EPA from ever using regulatory requirements as a proxy for what firms have achieved in appropriate cases,²⁰² the court rejected EPA's assumptions as being arbitrary and capricious in this case. In reaching this conclusion, the court noted that "EPA never gave any reason for its apparent belief that MWIs that were not subject to permit requirements did not deploy emission controls of any sort."²⁰³ The court further noted that there was information in the record suggesting that over 55 percent of MWIs in each category in fact were controlled by wet scrubbers, which are effective with respect to six of the nine relevant pollutants.²⁰⁴

The Sierra Club court also considered the approach EPA used in establishing floors for new units. Under the statute, MACT for new sources is to be set at a level not "less stringent than the emissions control that is achieved in practice by the best controlled similar unit."²⁰⁵ In the MWI context, EPA first identified the most effective technology in use in each category.²⁰⁶ It then consulted both its own and outside data to identify the highest level of emissions recorded in any test of an incinerator using that technology.²⁰⁷ And finally, it increased that value by 10 percent and rounded up to "an appropriate round number"²⁰⁸ to arrive at its final standard.

On review, the D.C. Circuit first noted that "EPA would be justified in setting the floors at a level that is a reasonable estimate of the performance of the 'best controlled similar unit' under the worst reasonably foreseeable circumstances."²⁰⁹ However, the court went on to conclude that EPA had not clearly stated this rationale, thus warranting a remand.²¹⁰ The key point, though, is that the focus has to be on the "best controlled similar unit"; the performance of other units is relevant only to the extent that it sheds light on what the best unit will consistently achieve.²¹¹ The court also rejected EPA's decisions to add 10 percent to the observed emissions levels and to further round up the results, again finding that EPA had not adequately explained the basis for its assumptions."²¹²

[30 ELR 10187]

Resource Conservation and Recovery Act

In Avondale Federal Savings Bank v. Amoco Oil Co.,²¹³ the Seventh Circuit addressed the issue the Supreme Court had left unresolved in Meghrig v. KFC Western, Inc.²¹⁴ In Meghrig, of course, the Court held that citizens cannot seek recovery of past cleanup costs under § 7002(a)(1)(B) of RCRA.²¹⁵ The Court specifically reserved, however, the question whether citizens may use that same authority to seek cost recovery for cleanup costs incurred after the filing of their lawsuit.²¹⁶ Avondale addresses that question, and holds that citizens cannot seek cost recovery even for post-filing cleanup costs. In so holding, the Seventh Circuit noted the Meghrig Court's emphasis on the fact that § 7002(a)(1)(B) on its face provides only two potential remedies: a mandatory and/or a prohibitory injunction.²¹⁷ It also noted the Court's admonition that courts should be "'chary of reading' additional remedies into a statute that, like RCRA, expressly provides for a particular remedy."²¹⁸

Judge Wood issued a strong dissent in Avondale, noting her view that "when the Supreme Court cautions us not to interpret its decision in a certain way, we should take heed."²¹⁹ She also identified a procedural distinction between the situation where a would-be RCRA plaintiff simply cleans up a site before filing its lawsuit (as in Meghrig) and the Avondale circumstance where the plaintiff only begins its cleanup activities after having filed suit:

The pre-filing period has independent significance under the statutory scheme Congress created, and a person who tries to circumvent that scheme (like the Meghrig plaintiff) has nothing left but a suit for reimbursement of monies spent by the time litigation begins. The person who complies with the pre-filing requirements RCRA imposes gives the statutory system a chance to work. Furthermore, at the time the suit is filed, the latter person is seeking precisely the injunctive relief that [§ 7002(a)(1)(B)] authorizes. Just because the person attempts to mitigate damages and clean up the property sooner than later changes neither of those facts. . . .²²⁰

Judge Wood also lamented the real-world implications of the panel majority's holding:

The court's holding is particularly ironic because it essentially finds that a statute designed to remedy imminent and substantial environmental hazards must on occasion operate to exacerbate these hazards rather than to ameliorate them. Foot-dragging is hardly unknown in environmental litigation, whenever a defendant believes that it will be better off if it delays the progress of the case, where losing later simply means it will have to pay later. As the court envisions RCRA's statutory scheme, defendants will have an extra incentive to stall because the longer the lawsuit runs, the more likely it is that another party will as a practical matter be forced to take it upon itself to clean up the defendant's messes. . . .²²¹

Comprehensive Environmental Response, Compensation, and Liability Act

Things were relatively quiet on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) front this past year. In Browning-Ferris Industries of Illinois v. Ter Maat,²²² the Seventh Circuit offered the most cogent discussion yet of how liability should be allocated in contribution actions under § 113(f) of CERCLA. In writing for the court, Judge Posner first noted that, under § 113(f), contribution actions explicitly are governed by federal law, with the courts being instructed to "allocate response costs . . . using such equitable factors as [they determine] are appropriate."²²³ The court concluded that this language allows for, but does not require, the imposition of joint liability.²²⁴ The court went on to note that it is "easy to imagine" cases where equitable factors would "weigh heavily in favor of joint liability," offering the following example:

Suppose . . . that Browning-Ferris had been made to clean up the entire site even though it had made only a small (say, 1 percent) contribution to its toxicity. Suppose M.I.G. and AAA were the bad actors jointly responsible for the other 99 percent. Suppose that for tax or other reasons M.I.G. had no assets. Under the view of the district court, even though M.I.G. and AAA had combined to create an indivisible injury (the contamination for which they were jointly responsible as joint operators), AAA would have to pay only 50 percent of the contamination for which it and M.I.G. were jointly liable, or 49.5 percent of the total clean-up cost (remember that we're assuming that the two corporations are jointly responsible for 99 percent of the total contamination), while Browning-Ferris would have to pay 50.5 percent of the total clean-up cost even though it was responsible for only 1 percent of that cost. These are not our facts, but they show that a rule against ever holding contribution defendants jointly liable would be inconsistent with the statutory direction that the district court allocate liability equitably among the liable parties. . . .²²⁵

The other CERCLA case worth mentioning is Carter-Jones Lumber Co. v. Dixie Distributing Co.,²²⁶ which [30 ELR 10188] is noteworthy in two respects. First, the Sixth Circuit clearly read the Supreme Court's opinion in United States v. Bestfoods²²⁷ as endorsing the Sixth Circuit's pre-Bestfoods view that courts should apply state-law principles in resolving veil-piercing issues under CERCLA.²²⁸ This is perhaps not too surprising given some of the Supreme Court's language in Bestfoods.²²⁹ It is worth noting, however, that the Supreme Court expressly declined to resolve this issue in Bestfoods,²³⁰ and that, at least before Bestfoods, the Sixth Circuit's position clearly was the minority view.²³¹

More surprisingly, the Sixth Circuit appeared to read Bestfoods as indicating that any allocation issues relating to corporations and officers should be resolved pursuant to state law, even in contribution cases.²³² While this discussion may be characterized as dictum,²³³ the court's discussion on this point is directly contravened by the language of § 113(f)(1), which—as the Seventh Circuit noted in Browning-Ferris—provides that allocation issues are to be resolved pursuant to federal law.²³⁴

Endangered Species Act

The most notable Endangered Species Act (ESA) decision of the year was in Forest Guardians v. Babbitt.²³⁵ In that case, the Tenth Circuit rejected the government's argument that resource limitations could justify the Secretary of the U.S. Department of the Interior's (DOI's) failure to comply with its mandatory duty to designate critical habitat under § 4(b)(6) of the Act.²³⁶ Under that provision, the Secretary generally is required to take final action on both species listing and critical habitat designation within one year after the issuance of a proposed rule.²³⁷ Due to budgetary constraints, however, the Secretary has de-prioritized critical habitat designations under a document known as the Listing Priority Guidance.²³⁸

The Forest Guardians court wasted little time in finding that the Secretary's failure to timely designate critical habitat for the Rio Grande silvery minnow violated § 4(b)(6) of the ESA.²³⁹ More importantly, the court determined that § 706(1) of the Administrative Procedure Act (APA)²⁴⁰ compelled it to issue a mandatory injunction requiring the Secretary to designate the relevant habitat.²⁴¹ In so holding, the court rejected the government's argument that the court had the equitable discretion to permit the Secretary's continued noncompliance, finding that the language of § 706(1)—directing that courts "shall . . . compel agency action unlawfully withheld"—restricted the courts' equitable discretion within the meaning of the Supreme Court's Weinberger v. Romero-Barcelo²⁴² line of cases. The court also distinguished the so-called TRAC line of cases, under which courts weigh a series of factors in determining whether mandamus is an appropriate remedy for agency delay,²⁴³ as being applicable only where an agency has unreasonably delayed action pursuant to a discretionary time schedule, not where an agency has violated a specific statutory deadline.²⁴⁴

Finally, the Forest Guardians court declined the government's suggestion that financial impossibility should come into play at the remedy stage.²⁴⁵ As an aside, however, the court noted that, if worse came to worst, the government would still have the opportunity to prove impossibility at the contempt stage.²⁴⁶

Enforcement

In addition to Gaston Copper, there were several other important cases dealing with enforcement issues this past year. Probably the most significant of these was Harmon Industries, Inc. v. Browner.²⁴⁷ In that case, the Eighth Circuit held that EPA cannot "overfile"—that is, file a subsequent federal enforcement action in the face of a prior state proceeding—in an authorized state under RCRA unless it first rescinds the state's authorization.²⁴⁸ In reaching this result, the court relied heavily on two statutory provisions, § 3006(b) and § 3006(d), which it viewed as clearly indicating Congress' intent that state enforcement actions preclude subsequent federal enforcement action. Specifically, the relevant portion of § 3006(b) provides that authorized state programs operate "in lieu of" the federal program, and gives EPA the authority to withdraw state authorization if the state program does not provide adequate enforcement.²⁴⁹ Section 3006(d), entitled "Effect of State Permit," states that:

Any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as an action taken by the Administrator under this subchapter.²⁵⁰

[30 ELR 10189]

The court viewed particularly the first of these provisions as significantly qualifying EPA's otherwise clear authority—as reflected in § 3008(a)(1) and (2)—to bring enforcement actions even in authorized states:

The plain "in lieu of" language contained in the RCRA reveals a congressional intent for an authorized state program to supplant the federal program in all respects including enforcement. Congressional intent is evinced within the authorization language of [§ 3006(b)] of the RCRA. Specifically, the statute permits the EPA to repeal a state's authorization if the state's program "does not provide adequate enforcement of compliance with the requirements of" the RCRA. This language indicates that Congress intended to grant states the primary role of enforcing their own hazardous waste program. . . . Harmonizing the [§ 3008(a)(1) and (2)] language that allows the EPA to bring an enforcement action in certain circumstances with [§ 3006(b)'s] provision that the EPA has the right to withdraw state authorization if the state's enforcement is inadequate manifests a congressional intent to give the EPA a secondary enforcement right in those cases where a state has been authorized to act that is triggered only after state authorization is rescinded or if the state fails to initiate an enforcement action. . . .²⁵¹

The court found additional support for its interpretation in § 3006(d), rejecting EPA's view that the language of the provision should be limited by its heading:

Regardless of the title or heading, the plain language of [§ 3006(d)] states that "any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the [EPA] under this subchapter." In this context, the meaning of the text is plain and obvious. "Any action" under this provision broadly applies to any action authorized by the subchapter, and this language is not limited to the issuance of permits. The state authorization provision substitutes state action (not excluding enforcement action) for federal action. It would be incongruous to conclude that the RCRA authorizes states to implement and administer a hazardous waste program "in lieu of" the federal enforcement program where only the issuance of permits is accorded the same force and effect as an action taken by the federal government.²⁵²

Finally, the Eighth Circuit found that EPA's enforcement action was also precluded by Missouri principles of res judicata.²⁵³ In so holding, the court again relied heavily on § 3006(b) and (d), finding that these provisions resulting a dynamic where EPA is by definition in privity with an authorized state, whether it shares the same in a particular enforcement case or not.²⁵⁴

The issues in Harmon are much closer than the Eighth Circuit made them appear. First, § 3006(b) simply cannot bear the weight that the court placed on it. As noted above, the court read the "in lieu of" language in that provision as indicating that authorized state programs "supplant the federal hazardous waste program in all respects including enforcement."²⁵⁵ But this conclusion simply cannot be squared with § 3008(a)(2), which makes clear that EPA can enforce RCRA even in authorized states so long as it first gives the relevant state notice of its impending action.²⁵⁶ If EPA can still bring enforcement actions, it is hard to imagine how the state enforcement program can be said to be operating "in lieu of" the federal program. The Harmon court tried to "harmonize" these two provisions by concluding that EPA can bring enforcement actions in authorized states, but only where the relevant state has failed to initiate an action of its own.²⁵⁷ But this reading makes a mockery of § 3006(b): either a state enforcement program operates "in lieu of" the federal program or it does not. The Eighth Circuit's attempt to split the baby is unconvincing. A much more reasonable interpretation of § 3006(b) is that the state's substantive standards, i.e., the requirements the apply to regulated entities, displace the federal standards that otherwise would apply, but that EPA retains its full investigation and enforcement powers.

The language of § 3006(d) is much more troubling for the government. Unlike § 3006(b), this provision speaks to the effect of individual state actions, as opposed to programmatic displacement. Thus, it could possibly coexist with § 3008(a)'s retention of federal enforcement authority in authorized states. The more interesting question, however, is whether there is a structural conflict between the seemingly unqualified language of § 3006(b) and the similarly unqualified language of § 3008(a) that creates a sufficient ambiguity in the former provision to allow for the application of Chevron deference to EPA's interpretation that § 3006(b) speaks only to the effect of permit issuance. This is a close question. One further structural point in EPA's favor is that § 7002 of RCRA allows citizens to bring suit against alleged violators even in the face of a completed state enforcement actions, if they allege (and can ultimately demonstrate) that the state's actions were not diligent.²⁵⁸ It would seem quite counterintuitive for Congress to have given citizens a "check" against nondiligent state enforcement, but to have denied EPA that same authority. Seen in this light, the fact that § 3008(a) provides EPA with the unqualified authority to bring enforcement actions in authorized states (as compared to the qualified right that citizens possess) takes on additional resonance.

On the res judicata front, the key question is whether privity should be determined programmatically—as determined by the Harmon court—or, alternatively, depending upon whether the two entities share a unity of interests in a particular case. The is also a close question, the answer to which may vary from state to state.²⁵⁹ It is worth noting that in a CWA case, the Ninth Circuit appeared to apply a case-by-case approach in United States v. ITT Rayonier, Inc.²⁶⁰

[30 ELR 10190]

At least one industry advocate has argued in these pages that, in light of Harmon, EPA should discontinue nationwide its policy of overfiling under all of the statutes it administers.²⁶¹ This would seem to be a serious overreaction. First, the correctness of the Harmon outcome even under RCRA is by no means free from doubt. Second, Harmon is based entirely on statutory language from RCRA that simply is not present in the other pollution-control statutes.²⁶² And third, and most importantly, many State agencies are still prone to the type of "sweetheart" deals that, at least in egregious cases, bespeak the need for EPA's overfiling authority.²⁶³

To date, EPA appears to be sticking to its guns. In this vein, it filed a petition for rehearing in the Harmon case itself. Interestingly, several states filed an amicus brief supporting EPA's petition for rehearing.²⁶⁴ These states argued that companies in states with lax enforcement programs would gain an unfair competitive advantage under the panel's decision.²⁶⁵ They also argued that EPA would be pressured into withdrawing state authorization more often under the Harmon approach.²⁶⁶

In General Motors Corp. v. EPA,²⁶⁷ the D.C. Circuit deferred to EPA's interpretation that the CWA precludes defendants in federal enforcement proceedings from collaterally attacking the validity of state-issued permits. In reaching its decision, the court first found that the issue should be determined as a matter of federal, not state, law.²⁶⁸ Next, the court determined that the fact that § 509(b)(2) specifically precludes collateral attack of federally issued permits—without making any mention of state-issued permits—did not clearly indicate a congressional intent to allow collateral review in the latter context. In so determining, the court noted its view that, because § 509(b) only establishes a right of judicial review with respect to federally issued permits, it is unsurprising that Congress would only specifically preclude collateral attack of those permits:

Section [509(b)(1)] authorizes the federal courts of appeals to review certain actions of the EPA, not to review the permitting decisions of the States. The failure of the Congress in [§ 509(b)(2)] expressly to forbid collateral attacks upon state permits is of no import, therefore. That is, not having authorized any review of state permits in the first place, the Congress simply had no reason to single out and prohibit collateral review of state permits.²⁶⁹

The court finally concluded that EPA had reasonably construed the CWA as precluding collateral review of state-issued permits. In so holding, the court accepted EPA's twin rationales that precluding collateral attacks: (1) ensures that the states will have the opportunity as a threshold matter to address permit challenges; and (2) is consistent with Congress' desire, expressed in the legislative history, to limit the scope of enforcement proceedings.²⁷⁰

One other aspect of General Motors merits mention. The statutory provision that EPA was interpreting in that case was § 309(g)(1), the provision that authorized its underlying administrative enforcement action.²⁷¹ It is somewhat surprising that the D.C. Circuit would apply what it termed the "familiar" Chevron deference construct in this context.²⁷² In doing so, it arguably acted inconsistently with its 1994 decision in Kelley v. EPA,²⁷³ in which it had held that EPA is entitled to no deference in interpreting CERCLA's liability scheme. The General Motors court did not appear to recognize, let alone discuss, this issue.

Jones v. City of Lakeland²⁷⁴ is significant mainly because it is yet another appellate decision loosely construing the "comparability" requirements of § 309(g) of the CWA, to the detriment of citizen plaintiffs.²⁷⁵ Under § 309(g), state administrative enforcement actions may under some circumstances bar citizen suits if they are undertaken pursuant to a state law that is "comparable" to § 309(g).²⁷⁶ In Lakeland, the Tennessee statutes at issue provide citizens with some procedural rights, such as the right to prompt an agency investigation and the right to intervene in an agency action before the chancery court to enter a consent judgment²⁷⁷; they provides citizens with no procedural rights, however, in administrative enforcement actions of the type used in that case, which are not filed with the chancery court.²⁷⁸ Despite the fact that the citizen plaintiffs had effectively been "frozen out" of the state's enforcement process,²⁷⁹ the Sixth Circuit in Lakeland joined the First and the [30 ELR 10191] Eighth Circuits in focusing on the "comparability" of the state-law scheme as a whole, as opposed to on the rights provided under the specific administrative scheme invoked by the state in the case at issue.²⁸⁰ The Ninth Circuit has taken a contrary approach in Citizens for a Better Environment-California v. Union Oil Co. of California, noting that "unless any penalty is assessed according to the particular provision of state law that is comparable to [§ 309(g)], there is no guarantee that the public will be given the requisite opportunity to participate or that the penalty assessed is of the proper magnitude."²⁸¹

In United States v. Tennessee Air Pollution Control Board,²⁸² the Sixth Circuit held that § 304(e) of the CAA clearly waives U.S. sovereign immunity with respect to state-imposed administrative penalties for air pollution control violations. In so holding, the court relied on the second sentence of § 304(e), which provides that nothing in § 304 or in any other federal law shall be construed as preventing any state from either bringing "any administrative enforcement action" or obtaining "any administrative remedy or sanction."²⁸³ Construing this as a second waiver of sovereign immunity (in addition to § 118),²⁸⁴ the court essentially read this provision as working in tandem with § 118, with § 118 "defining the United States' burden to comply with state laws," and § 304(e) "expansively and unambiguously removing any impediment to enforcement in the event of non-compliance."²⁸⁵ The court concluded that the explicit language of § 304(e) was more than sufficient to distinguish the CAA situation from the CWA waiver that the Supreme Court had found insufficiently clear in U.S. Department of Energy v. Ohio.²⁸⁶

Finally, United States v. Stone Container Corp.²⁸⁷ represents the second appellate decision holding that citizens who intervene in governmental enforcement actions pursuant to § 304(b)(1)(B) of the CAA are not eligible to recover attorneys fees pursuant to § 304(d) of the Act. In so holding, the Ninth Circuit followed a plain meaning approach, noting that fees are available under § 304(d) only for citizen actions brought pursuant to § 304(a) of the CAA, and that the relevant enforcement action in the case before it was brought by the government pursuant to § 113 of the CAA.²⁸⁸

Takings Law

There were four significant environmental "takings" decisions in 1999. First, in City of Monterey v. Del Monte Dunes at Monterey, Ltd.,²⁸⁹ the Supreme Court articulated clearly for the first time that the "rough proportionality" test established in Dolan v. City of Tigard²⁹⁰ applies only to so-called exaction cases (i.e., where land use decisions condition approval of development on the dedication of property to public use), and not to the more paradigmatic regulatory takings cases where "the landowner's challenge is based not on excessive exactions but on denial of development."²⁹¹ The Court also determined that, in cases in which a property owner has jurisdiction to bring a § 1983 claim²⁹² in federal court alleging that a state or local governmental entity has taken its property without compensation, the claimant is entitled to a jury trial on both the question whether it has "been deprived of all economically viable use of its property" within the meaning of Lucas v. South Carolina Coastal Council,²⁹³ and the question whether the government's "decision to reject a particular development plan bore a reasonable relationship to its proffered justifications."²⁹⁴

The Federal Circuit issued a pair of wetlands taking decisions worthy of mention. Both cases involved situations where the landowner had purchased the relevant property after the CWA was passed. And in each case the court found that no taking had occurred. Interestingly, however, the analysis in the two opinions is somewhat different. The second case was the most straightforward. In Good v. United States, the court cited its earlier decision in Loveladies Harbor, Inc. v. United States²⁹⁵ for the proposition that "reasonable, investment-backed expectations" are an essential element of every takings case.²⁹⁶ It quoted Loveladies for the justification for denying compensation to one who buys with knowledge of the relevant restraint:

[30 ELR 10192]

In legal terms, the owner who bought with knowledge of the restraint could be said to have no reliance interest, or to have assumed the risk of any economic loss. In economic terms, it could be said that the market had already discounted for the risk, so that a purchaser could not show a loss in his investment attributable to it.²⁹⁷

In Good, the property owner argued that, in Lucas, the Court had "eliminated the required for reasonable, investment-backed expectations, at least in cases where the challenged regulation eliminates virtually all of the economic value of the landowner's property."²⁹⁸ The court rejected this argument, noting that although the Lucas Court had established a "categorical" test, this did not mean that it had eviscerated the investment-backed expectations test:

A Lucas-type taking . . . is categorical only in the sense that the courts do not balance the importance of the public interest advanced by the regulation against the regulation's imposition on private property rights.

The Lucas Court did not hold that the denial of all economically beneficial or productive use of land eliminates the requirement that the landowner have reasonable, investment-backed expectations of developing his land. In Lucas, there was no question of whether the plaintiff had satisfied that criterion.²⁹⁹

Finally, the landowner in Good argued that he did have reasonable, investment-backed expectations because, even though the CWA existed at the time he acquired his property, his permit denial was motivated by concerns driven by the ESA, which was passed after he acquired the property.³⁰⁰ The court also rejected this argument, however, noting that the landowner knew when he bought the property that he would have to have to obtain regulatory approval in order to develop it, and quoting Deltona Corp. v. United States³⁰¹ for the proposition that he "'must have been aware that the standards and conditions governing the issuance of permits could change.'"³⁰²

In Forest Properties, Inc. v. United States,³⁰³ by contrast, the court did not clearly flag the developer's lack of reasonable, investment-backed expectations as the dispositive factor in its analysis. While quoting Creppel v. United States³⁰⁴ for the proposition that "the investment-backed expectation criterion 'limits recovery to owners who can demonstrate that they bought their property in reliance on the non-existence of the challenged regulation,'"³⁰⁵ the court also extensively discussed both what the relevant parcel should be for its taking analysis (the so-called denominator question),³⁰⁶ and whether the developer had adequately demonstrated its diminution in value.³⁰⁷ If the court had treated the landowner's lack of any investment-backed expectations as being dispositive, the discussion of these other points would have been unnecessary.

The Forest Properties court's discussion of the "denominator" issue was also noteworthy (although, for the reasons discussed above, it may be viewed as dictum). In that case, the court determined that, for purposes of its takings analysis, the relevant parcel should include not just the 9.4 acres of wetlands that were the subject of the permit application, but also 53 upland acres that were part of the same overall development project.³⁰⁸ This is particularly significant because the developer had two different kinds of title in the two parcels, and had acquired them in two separate transactions.³⁰⁹ Despite this, the court found that the lower court had not erred in looking at the "economic reality of the arrangements" (i.e., that the two parcels were being developed as an integrated project) "which transcended these legalistic bright lines."³¹⁰ In analyzing the case this way, the Federal Circuit apparently declined to take up Justice Scalia's invitation in Lucas that courts should perhaps analyze the denominator question based on "how the owner's reasonable expectations have been shaped by the State's law of property—i.e., whether and to what degree the State's law has accorded legal recognition and protection to the particular interest in land with respect to which the taking claimant alleges a diminution in (or elimination of) value."³¹¹

Finally, in Florida Rock Industries, Inc. v. United States,³¹² the Court of Federal Claims followed through on the "partial takings" theory the Federal Circuit had articulated five years earlier in the same case.³¹³ On remand, Judge Smith interpreted the Federal Circuit's opinion as indicating that a partial taking occurs where a regulation: (1) deprives a landowner of a substantial part of the property's economic use or value; and (2) allocates "'to some number of individuals, less than all, a burden that should be borne by all.'"³¹⁴ Finding both of these elements present, the court went on to find that a taking had occurred.

1. For a discussion of developments during 1998, see Craig N. Johnston, 1998—The Year in Review, 29 ENVTL. L. 69 (1999).

2. 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999), panel opinion modified & rehearing en banc denied, 195 F.3d 4, 30 ELR 20119 (D.C. Cir. 1999).

3. See 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618. For some examples of broad delegations under other statutes, see, e.g., id. §§ 6921-6924, ELR STAT. RCRA §§ 3001-3004 (granting EPA the authority to determine both which wastes should be subject to regulation under the Resource Conservation and Recovery Act (RCRA), id. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011, and 33 U.S.C. §§ 1361(a), 1362, and 1314, ELR STAT. FWPCA §§ 501(a), 502, and 304 (collectively giving EPA the authority to determine both what waters should be subject to regulation under the Clean Water Act (CWA) and the standards to which dischargers should be held).

4. 42 U.S.C. § 7409(b)(1), ELR STAT. CAA § 109(b)(1).

5. Id. § 7409(d)(1), ELR STAT. CAA § 109(d)(1).

6. Id. § 7409(d)(2), ELR STAT. CAA § 109(d)(2).

7. Id. § 7607(d)(3), ELR STAT. CAA § 307(d)(3).

8. American Trucking, 175 F.3d at 1034, 29 ELR at 21071.

9. Id.

10. Lead Indus. Ass'n v. EPA, 647 F.2d 1130, 1148, 10 ELR 20643, 20652 (D.C. Cir.), cert. denied, 449 U.S. 1042 (1980).

11. American Trucking, 175 F.3d at 1035, 29 ELR at 21072 (ozone).

12. See 62 Fed. Reg. 38856 (July 18, 1997). EPA also set a new "secondary" ozone standard at the same level. Id.

13. See generally 62 Fed. Reg. 38652 (July 18, 1997).

14. American Trucking, 175 F.3d at 1034, 29 ELR at 21071 (citing J.W. Hampton Jr. & Co. v. United States, 276 U.S. 394, 409 (1928), as the basis for the "intelligible principle" requirement).

15. Id. at 1035, 29 ELR at 21072.

16. Id.

17. Id. at 1036, 29 ELR at 21072.

18. Id.

19. Id. at 1037, 29 ELR at 21073.

20. Id. at 1038, 29 ELR at 21073.

21. See American Trucking, 195 F.3d at 10, 30 ELR at 20121 (as amended). The court's discussion regarding the enforceability of any revised ozone standard is quite complex and is beyond the scope of this Article. See Craig N. Oren, Run Over by American Trucking Part II: Can EPA Implement Revised Air Quality Standards?, 30 ELR 10034 (Jan. 2000).

22. Id.

23. American Trucking Ass'n v. EPA, No. 97-1440 (D.C. Cir. June 18, 1999).

24. 175 F.3d at 1038, 29 ELR at 21073.

25. Id.

26. 175 F.3d at 1057, 29 ELR at 21081; see also id. at 1057-58, 29 ELR at 21081 (citing, inter alia, National Broad. Co. v. United States, 319 U.S. 190 (1943) (upholding Congress' grant of authority to the Federal Communications Commission (FCC) to regulate broadcast licensing in the "public interest"); United States v. Southwestern Cable Co., 392 U.S. 157, 178 (1968) (sustaining the FCC's power to issue regulations "as public convenience, interest, or necessity requires"); Yakus v. United States, 321 U.S. 414, 426-27 (1944) (upholding the Price Administrator's authority to fix "fair and equitable" commodities prices)).

27. 175 F.3d at 1061, 29 ELR at 21083.

28. Id.

29. American Trucking, 195 F.3d at 4, 30 ELR at 20119. Judge Tatel dissented from the original panel's denial of rehearing, id. at 8, 30 ELR at 20121, but saved his substantive opinion for the en banc stage (see below).

30. Id. at 6, 30 ELR at 20119 (emphasis in original).

31. Id. at 6 n.1, 30 ELR at 20119 n.1. In the PM context, EPA stated the corollary that its decision was determined by the norm of "the 95 percent confidence level to separate results that could be the product of chance from more convincing evidence of causation." Id.

32. Id. at 6, 30 ELR at 20120.

33. Id. at 7, 30 ELR at 20120.

34. 448 U.S. 607, 642, 646, 10 ELR 20489, 20498, 20500 (1980) (Stevens, J., plurality).

35. 195 F.3d at 8, 30 ELR at 20120.

36. Id. (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 866, 14 ELR 20507, 20515 (1984)).

37. Id.

38. Judges Wald and Henderson did not participate.

39. See INTERIM CIRCUIT RULES OF THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Rule 35(a) (1999), available at http://www.cadc.uscourts.gov/ ("A majority of the judges who are in active service may order than an appeal or other proceeding be heard or reheard by the court of appeals en banc."). See also Oren, supra note 21, 30 ELR at 10035 n.6.

40. American Trucking, 195 F.3d at 16, 30 ELR at 20123.

41. Id. at 17, 30 ELR at 20124.

42. Id. at 14, 30 ELR at 20122.

43. Id., 30 ELR at 20123 (citing Rust v. Sullivan, 500 U.S. 173, 191 (1991), for the proposition that the constitutional avoidance canon should trump Chevron deference).

44. Id. at 15, 30 ELR at 20123.

45. Id.

46. Id.

47. American Trucking, 175 F.3d at 1027, 29 ELR at 21073 (citing Natural Resources Defense Council v. EPA, 902 F.2d 962, 20 ELR 20891 (D.C. Cir. 1990); American Petroleum Inst. v. Costle, 665 F.2d 1176, 11 ELR 20916 (D.C. Cir. 1981); and Lead Indus. Ass'n v. EPA, 647 F.2d 1130, 10 ELR 20643 (D.C. Cir. 1980)).

48. See 195 F.3d at 6 n.1, 30 ELR at 20119 n.1, indicating that EPA decided not to address ozone effects at below 0.08 ppm because they are "transient and reversible." For PM, by contrast, EPA appears to have been focusing on whether the effects would occur, not on whether they were sufficiently serious to merit protection against. Id.

49. 134 F.3d 388, 28 ELR 20481 (D.C. Cir. 1998).

50. Id. at 392, 28 ELR at 20483.

51. See 195 F.3d at 6-7, 30 ELR at 20120; see also 175 F.3d at 1035, 29 ELR at 21072 (quoting 62 Fed. Reg. 38856, 38868 (July 18, 1997)).

52. 195 F.3d at 7, 30 ELR at 20120.

53. 134 F.3d at 392, 28 ELR at 20483.

54. 474 U.S. 121, 16 ELR 20086 (1985).

55. Id. at 132, 16 ELR at 20089.

56. See supra note 33 and accompanying text.

57. Craig N. Oren, Run Over by American Trucking Part 1: Can EPA Revive Its Air Quality Standards?, 29 ELR 10653, 10657 (Nov. 1999).

58. See supra note 3.

59. 191 F.3d 845, 30 ELR 20161 (7th Cir. 1999).

60. See 33 C.F.R. § 328.3(c) (1999) (defining "adjacent").

61. See, e.g., id. § 328.3(a) (defining the term "waters of the United States"). EPA and the Corps also assert jurisdiction over adjacent wetlands. Id. The Court upheld this assertion of authority in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985).

62. 51 Fed. Reg. 41217 (1986).

63. 514 U.S. 549 (1995).

64. 55 F.3d 1388, 1394-96, 25 ELR 21046, 21049-50 (9th Cir. 1995), cert. denial sub nom. Cargill, Inc. v. United States, 116 S. Ct. 407, 26 ELR 20001 (1995).

65. Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 261, 23 ELR 21139, 21141 (7th Cir. 1993) (internal footnote omitted).

66. 514 U.S. at 567.

67. See, e.g., SWANCC, 191 F.3d at 849, 30 ELR at 20162.

68. 317 U.S. 111 (1942).

69. 514 U.S. at 560-61, 567.

70. Cargill, Inc. v. United States, 116 S. Ct. 407, 26 ELR 20001 (1995).

71. Id. at 408, 26 ELR at 20002.

72. Id. (internal citation omitted).

73. 133 F.3d 251, 28 ELR 20299 (4th Cir. 1997).

74. Id. at 257, 28 ELR at 20301 (emphasis in original).

75. 191 F.3d at 849, 30 ELR at 20162.

76. Id. at 850, 30 ELR at 20162 (citations omitted).

77. Id.

78. Id.

79. Id.

80. Id.

81. Id.

82. 467 U.S. 837, 14 ELR 20507 (1984)); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985) (applying Chevron in determining that the Agencies had reasonably interpreted the same phrase to include adjacent wetlands).

83. 191 F.3d at 851, 30 ELR at 20163 (citing Rueth v. EPA, 13 F.3d 227, 231, 24 ELR 20214, 20216 (7th Cir. 1993); United States v. Huebner, 752 F.2d 1235, 1239, 15 ELR 20083, 20084 (7th Cir. 1985); and United States v. Byrd, 609 F.2d 1204, 1209, 9 ELR 20757, 20760 (7th Cir. 1979)).

84. Id. (citing Leslie Salt Co. v. United States, 896 F.2d 354, 360, 20 ELR 20477 20480-81 (9th Cir. 1990)).

85. Id.

86. Id. at 852, 30 ELR at 20163.

87. Id.

88. Id. (quoting 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(a)).

89. 5 U.S.C. § 553, available in ELR STAT. ADMIN. PROC.

90. 191 F.3d at 852, 30 ELR at 20163.

91. Id.

92. 885 F.2d 866, 20 ELR 20008 (tbl.) (4th Cir. 1989).

93. 191 F.3d at 853, 30 ELR at 20163.

94. See, e.g., United States v. Bass, 404 U.S. 336, 349 (1971) ("unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance").

95. See, e.g., Leslie Salt, 55 F.3d at 1394-95, 25 ELR at 21049-50 (citing S. 1236, 92d Cong. § 144 (1972); 1972 U.S.C.C.A.N. 3668, 3776); Reuth v. EPA, 13 F.3d 227, 231, 24 ELR 20124, 20126 (7th Cir. 1993) (noting "Congress's intent to make the Clean Water Act as far-reaching as the Commerce Clause permits"); see also H.R. REP. NO. 92-911, at 131 (1972) ("The Conferees fully intend that the term 'navigable waters' be given the broadest possible constitutional interpretation.").

96. See Lopez, 514 U.S. at 561 (noting that the gun possession law could not "be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce"); see also United States v. Olin Corp., 107 F.3d 1506, 1509, 27 ELR 20778, 20779 (11th Cir. 1997) ("Lopez did not alter the constitutional standard for federal statutes regulating intrastate activities").

97. 514 U.S. at 562-67; see also Olin Corp., 107 F.3d at 1509, 27 ELR at 20779 ("When Congress fails to ensure a statute's compliance with the Commerce Clause, however, courts must determine independently whether the statute regulates activities that arise out of or are connected with a commercial transaction, which when viewed in the aggregate, substantially affect interstate commerce.") (internal quotation omitted).

98. See supra notes 79 & 80 and accompanying text.

99. 191 F.3d at 850, 30 ELR at 20163.

100. See supra note 95.

101. See supra note 82 and accompanying text.

102. 191 F.3d at 851, 30 ELR at 20163.

103. 474 U.S. 121, 16 ELR 20086 (1985).

104. Id. at 132, 16 ELR at 20088.

105. Id. at 134, 16 ELR at 20089.

106. Id. at 131 n.8, 16 ELR at 20088 n.8.

107. Id. at 132, 16 ELR at 20089.

108. Id.

109. 33 U.S.C. § 1251(a)(2), ELR STAT. FWPCA § 101(a)(2).

110. Id. § 1344(c), ELR STAT. FWPCA § 404(c).

111. 55 F.3d at 1395, 25 ELR at 21049 (emphasis in original).

112. 191 F.3d at 850, 30 ELR at 20162.

113. See, e.g., 33 C.F.R. § 328.3(b)(1999):

The term wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

114. 179 F.3d 107, 29 ELR 21213 (4th Cir. 1999).

115. See, e.g., Public Interest Research Group of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71, 20 ELR 21216, 21218 (3d Cir. 1990) (brown color and bad odor); Natural Resources Defense Council v. Texaco Ref. & Mktg., 2 F.3d 493, 23 ELR 21328 (3d Cir. 1993) (oily sheen and unpleasant smell); Natural Resources Defense Council v. Watkins, 954 F.2d 974, 979-80, 22 ELR 20368, 20369 (4th Cir. 1992) (unpleasant color and smell in the water body).

116. 504 U.S. 555, 560, 22 ELR 20913, 20915 (1992).

117. 172 F.3d 65, 29 ELR 21038 (D.C. Cir. 1999).

118. Id. at 68, 29 ELR at 21039.

119. Id.

120. Id. (emphasis in original). In his partial dissent, Judge Sentelle took issue with only the last part of this analysis, accusing the majority of indulging in "the wholly unsupported conclusion that, as part any future remediation at sites in Louisiana, 'some variances will be granted,' adversely affecting the interests of the named LEAN members." Id. at 71, 29 ELR at 21040 (Sentelle, J., dissenting in part).

121. 123 F.3d 111, 27 ELR 21340 (3d Cir. 1997).

122. Id. at 116, 27 ELR at 21341. The district court had previously issued a declaratory judgment that the plaintiff had standing, which was affirmed by the Third Circuit without opinion. See id. at 115-16, 27 ELR at 21341.

123. Id. at 121, 27 ELR at 21344 (emphasis in original).

124. Id. at 115, 27 ELR at 21341.

125. Id. at 123, 27 ELR at 21345.

126. Id.

127. Id.

128. 913 F.2d 64, 20 ELR 21216 (3d Cir. 1990).

129. Id. at 72, 20 ELR at 21219.

130. Id. at 86, 20 ELR at 21227 (Aldisert, J., concurring) (describing the polluted state of the Kill Van Kull).

131. Id. at 73, 20 ELR at 21219.

132. Id. at 72, 20 ELR at 21218.

133. Id. at 73 n.10, 20 ELR at 21219 n.10 (citations omitted); see also Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 558, 26 ELR 20522, 20526 (5th Cir. 1996).

134. 95 F.3d 358, 27 ELR 20193 (5th Cir. 1996).

135. Id. at 361, 27 ELR at 20195.

136. Id. at 361-62, 27 ELR at 20195.

137. 179 F.3d at 119, 29 ELR at 21217 (Wilkinson, C.J., dissenting). The defendant had purchased the relevant facility from a predecessor in 1990, after the state had performed the relevant tests on Mr. Shealy's lake. Id. at 111 n.3, 29 ELR at 21214 n.3 (majority opinion) and id. at 120, 29 ELR at 21218 (Wilkinson, C.J., dissenting). However, as pointed out by the dissent, during its first three years of operation, the defendant operated the smelter "using the very same treatment system to process its wastewater as its predecessor had." Id. at 120, 29 ELR at 21218. Moreover, the district court's opinion makes clear that the defendant's 1991 permit allowed it to discharge many of the same pollutants that were found in Mr. Shealy's lake, including PCBs. Friends of the Earth v. Gaston Copper Recycling Corp., 9 F. Supp. 589, 600 n.12 (D.S.C. 1998).

138. 179 F.3d at 111, 29 ELR at 21214 (majority opinion).

139. Id. at 113-14, 29 ELR at 21215.

140. See supra note 137.

141. 179 F.3d at 109 n.1, 29 ELR at 21213 n.1.

142. Compare id. at 115, 29 ELR at 21216 (panel opinion) (saying 10-15 miles) with id. at 119 & 121, 29 ELR 21217-18 (Wilkinson, C.J., dissenting) (citing 16.5 miles).

143. Id. at 115, 29 ELR at 21216 (panel opinion) and id. at 121, 29 ELR at 21218 (Wilkinson, C.J., dissenting).

144. Id. at 119, 29 ELR at 21217 (Wilkinson, C.J., dissenting).

145. Id.

146. Id. at 115, 29 ELR at 21216 (majority opinion).

147. Id. at 115 n.8, 29 ELR at 21216 n.8.

148. Id. at 115, 29 ELR at 21216.

149. Id.

150. Id. at 116 n.9, 29 ELR at 21216 n.9.

151. Id. at 120, 29 ELR at 21218 (emphasis in original).

152. Id. at 121, 29 ELR at 21218.

153. Id.

154. Id.

155. Id. at 121-22, 29 ELR at 21218-19 (citing, inter alia, Powell Duffryn and Cedar Point Oil).

156. Id. at 122, 29 ELR at 21219 (citing Cedar Point Oil, 73 F.3d at 556, 26 ELR at 20526).

157. Id. at 120 n.4, 29 ELR 21218 n.4.

158. Id. at 119, 29 ELR at 21217.

159. Id. at 111, 29 ELR at 21214 (majority opinion).

160. Id. at 111 n.3, 29 ELR at 21214 n.3.

161. Logically, the source of the alleged injury might be relevant at the "injury" stage if the injury is only a potential (rather than an actual) injury. In such a case, understanding the source may be necessary to demonstrate the likelihood that the injury will manifest itself. However, in Gaston Copper Mr. Shealy already was suffering an injury at thetime the plaintiffs filed suit (i.e., his inability to use his pond as he would have were it uncontaminated). In this context, it would seem that any doubts as to the source of the injury should come up only at the "causation" stage of the analysis.

162. Id. at 120, 29 ELR at 21218 (Wilkinson, C.J., dissenting).

163. Id. at 112, 29 ELR at 21214 (internal quotation omitted).

164. Id. at 119, 29 ELR at 21217 (Wilkinson, C.J., dissenting).

165. Id. at 113-14, 29 ELR at 21215.

166. Id. at 114 n.6, 29 ELR at 21215 n.6.

167. See supra notes 160-61 and accompanying text.

168. 179 F.3d at 111, 29 ELR at 21214.

169. Magnesium Elektron, 123 F.3d at 115, 27 ELR at 21341.

170. See City of Los Angeles v. Lyons, 461 U.S. 95, 107 n.8, 103 S. Ct. 1660, 1668 n.8 (1983) (stating that one must have a reasonable fear of future injury in order to establish standing).

171. 179 F.3d at 114, 29 ELR at 21215.

172. 123 F.3d at 123, 27 ELR at 21345.

173. 172 F.3d 65, 29 ELR 21038 (D.C. Cir. 1999).

174. Id. at 68, 29 ELR at 21039; see also Village of Elk Grove v. Evans, 997 F.2d 328, 329, 23 ELR 20989, 20990 (7th Cir. 1993) ("even a small probability of injury is sufficient to create a case or controversy").

175. __ S. Ct. __, 2000 WL 16307 (U.S. 2000). The full implications of Laidlaw will be discussed in a subsequent article.

176. See supra note 146 and accompanying text.

177. See supra note 129 and accompanying text.

178. 179 F.3d at 120 n.3, 29 ELR at 21218 n.3 (citations omitted). It is important to remember that the plaintiffs also submitted evidence that Gaston Copper's operation of the smelter was the same as that of its predecessor for two years after the complaint was filed in 1991. Id. at 120, 29 ELR at 21218 (Wilkinson, C.J., dissenting).

179. Id. at 115, 29 ELR at 21216 (noting that the plaintiffs "failed to establish the second requirement of the substantial likelihood analysis: that Gaston Copper's discharges were present in [the relevant waterways]").

180. Id. (citing Crown Central).

181. Id. at 119-20, 29 ELR 21217-18 (Wilkinson, C.J., dissenting).

182. Id. at 119, 29 ELR at 21217.

183. Id. at 115 n.8, 29 ELR at 21216 n.8.

184. 913 F.2d at 71-73, 20 ELR at 21218.

185. 179 F.3d at 122, 29 ELR at 21219 (Wilkinson, C.J., dissenting).

186. 191 F.3d 1159, 30 ELR 20116 (9th Cir. 1999). Other enforcement-related cases, beyond Gaston Copper, are discussed infra, as are wetlands cases presenting takings issues.

187. Id. at 1164-65, 30 ELR at 20117 (citing 33 U.S.C. § 1342(p)(3)(A), ELR STAT. FWPCA § 402(p)(3)(A) and § 1311(b)(1)(C), ELR STAT. FWPCA § 301(b)(1)(C)).

188. Id. at 1165-66, 30 ELR at 20118 (quoting 33 U.S.C. § 1342(p)(3)(B), ELR STAT. FWPCA § 402(p)(3)(B).

189. Id. at 1165, 30 ELR at 20118.

190. Id. at 1166, 30 ELR at 20119.

191. No. 98-1215, 1999 WL 1127655 (2d Cir. Dec. 8, 1999).

192. Id. at *6.

193. See 42 U.S.C. § 4332, ELR STAT. NEPA § 102.

194. 1999 WL 1127655, at *7.

195. See 33 C.F.R. § 320.4(a) (1999).

196. 1999 WL 1127655, at *8 n.7 (emphasis in original). Compare PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 712, 24 ELR 20945, 20947 (1994) (upholding EPA's interpretation that states may consider the effects of the entire activity associated with a discharge in denying or conditioning water quality certifications under § 401 of the CWA).

197. 167 F.3d 658, 29 ELR 20645 (D.C. Cir. 1999).

198. 42 U.S.C. § 7429(a)(2), ELR STAT. CAA § 129(a)(2).

199. Id. § 7412(d), ELR STAT. CAA § 112(d).

200. 167 F.3d at 661, 29 ELR at 20646.

201. Id.

202. Id. at 661-63, 29 ELR at 20646-47.

203. Id. at 664, 29 ELR at 20647.

204. Id.

205. 42 U.S.C. § 7429(a)(2), ELR STAT. CAA § 129(a)(2); see also id. § 7412(d)(3), ELR STAT. CAA § 112(d)(3).

206. 167 F.3d at 664, 29 ELR at 20647.

207. Id. at 665, 29 ELR at 20648.

208. Id.

209. Id.

210. Id.

211. Id.

212. Id.

213. 170 F.3d 692, 29 ELR 21001 (7th Cir. 1999).

214. 516 U.S. 479, 26 ELR 20820 (1996).

215. Id. at 484, 26 ELR at 20820.

216. Id. at 488, 26 ELR at 20822 (emphasis in original):

Without considering whether a private party could seek to obtain an injunction requiring another party to pay cleanup costs which arise after a RCRA citizen suit has been properly commenced, . . . or otherwise recover cleanup costs paid out after the invocation of RCRA's statutory process, we agree with the Meghrigs that a private party cannot recover the cost of a past cleanup effort under RCRA . . . .

217. 170 F.3d at 694, 29 ELR at 21001 (citing Meghrig, 516 U.S. at 484, 26 ELR at 20820).

218. Id. (quoting Meghrig, 516 U.S. at 488, 26 ELR at 20822).

219. 170 F.3d at 697, 29 ELR at 21002 (Wood, J., dissenting).

220. Id. at 695, 29 ELR at 21002.

221. Id., 29 ELR at 21003.

222. 195 F.3d 953, 30 ELR 20135 (7th Cir. 1999).

223. Id. at 956, 30 ELR at 20136 (quoting 42 U.S.C. § 9613(f), ELR STAT. CERCLA § 113(f)).

224. Id. at 957, 30 ELR at 20137.

225. Id. (citations omitted); see also Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 27 ELR 21211 (9th Cir. 1997); Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187, 27 ELR 21465 (10th Cir. 1997); Centerior Service Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 354 n.12, 29 ELR 20065, 20069 n.12 (6th Cir. 1998) (all indicating that the costs of "orphan shares" are to be reallocated among all potentially responsible parties pursuant to § 113(f)(1)); but see Minyard Enters., Inc. v. Southeastern Chem. & Solvent Co., 184 F.3d 373, 385, 29 ELR 21369, 21373 (4th Cir. 1999) (summarily concluding that liability under § 113(f) is several, without discussing the implications where there are orphan shares).

226. 166 F.3d 840, 29 ELR 20506 (6th Cir. 1999).

227. 118 S. Ct. 1876, 28 ELR 21225 (1998).

228. 166 F.3d at 846, 29 ELR at 20507; see also United States v. Cordova Chem. Co. of Mich., 113 F.3d 572, 27 ELR 20949 (6th Cir. 1997) (en banc).

229. See 118 S. Ct. at 1885, 28 ELR at 21227 ("CERCLA is thus like many another congressional enactment in giving no indication that the entire corpus of state corporation law is to be replaced simply because a plaintiff's cause of action is based upon a federal statute") (internal quotations omitted).

230. 118 S. Ct. at 1885 n.9, 28 ELR at 21227 n.9.

231. Cf. B.F. Goodrich v. Betkoski, 99 F.3d 505, 27 ELR 20329 (2d Cir. 1996) (successor liability), reh'g denied, 112 F.3d 88 (1997); Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 18 ELR 21026 (3d Cir. 1988) (successor liability); Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209, 23 ELR 21534 (3d Cir. 1993) (parent liability); United States v. Carolina Transformer Co., 978 F.2d 832, 23 ELR 20365 (4th Cir. 1992) (successor liability); Louisiana-Pacific Corp. v. ASARCO, Inc., 909 F.2d 1260, 20 ELR 21079 (9th Cir. 1990) (successor liability).

232. 166 F.3d at 847, 29 ELR at 20508.

233. See id. at 848, 29 ELR at 20508.

234. See supra note 223 and accompanying text.

235. 164 F.3d 1261, 29 ELR 20351 (10th Cir. 1999), amended 174 F.3d 1178, 29 ELR 20351 (10th Cir. 1999).

236. 174 F.3d at 1184, 29 ELR at 20353.

237. 16 U.S.C. § 1533(b)(6), ELR STAT. ESA § 4(b)(6).

238. See 61 Fed. Reg. 24722, 24727-28 (1996).

239. 174 F.3d at 1186, 29 ELR at 20354.

240. 5 U.S.C. § 706(1), available in ELR STAT. ADMIN. PROC.

241. 174 F.3d at 1186-89, 29 ELR at 20354-55.

242. Id. at 1187, 29 ELR at 20354 (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 12 ELR 20538 (1982); Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 17 ELR 20574 (1987).

243. See Telecommunications Research Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984).

244. 174 F.3d at 1191, 29 ELR at 20356.

245. Id. at 1192, 29 ELR at 20356.

246. Id. at 1192-93, 29 ELR at 20356-57.

247. 191 F.3d 894, 29 ELR 21412 (8th Cir. 1999).

248. Id. at 899, 29 ELR at 21413.

249. 42 U.S.C. § 6926(b), ELR STAT. RCRA § 3006(b).

250. Id. § 6926(d), ELR STAT. RCRA § 3006(d).

251. 191 F.3d at 899, 29 ELR at 21413 (citation omitted).

252. Id. at 900, 29 ELR at 21413 (citation omitted).

253. Id. at 902-04, 29 ELR at 21414-15.

254. Id. at 903-04, 29 ELR at 21414-15.

255. Id. at 899, 29 ELR at 21413 (emphasis added).

256. 42 U.S.C. § 6928(a)(2), ELR STAT. RCRA § 3008(a)(2). EPA's then-General Counsel Francis Blake made this same point in a 1986 memorandum. See U.S. EPA, GUIDANCE ON RCRA OVERFILING (May 19, 1986) (available from the ELR Document Service, ELR Order No. AD-625).

257. 191 F.3d at 899, 29 ELR at 21413.

258. See 42 U.S.C. § 6972(a)(1)(A), (b)(1)(B), ELR STAT. RCRA § 7002(a)(1)(A), (b)(1)(B).

259. This is because, as noted in Harmon, the Full Faith and Credit Act, 28 U.S.C. § 1738, requires federal courts to give preclusive effect to state court judgments whenever the state court from the judgment emerged would give such effect. 191 F.3d at 902, 29 ELR at 21414.

260. 627 F.2d 996, 10 ELR 20945 (9th Cir. 1980); cf. EPA v. City of Green Forest, 921 F.2d 1394, 21 ELR 20610 (8th Cir. 1990) (giving res judicata effect to an EPA consent decree in a citizen suit).

261. Ridgway M. Hall Jr., Harmon Limits RCRA Enforcers to One Bite, 29 ELR 10781, 10785 (Dec. 1999).

262. For cases supporting EPA's overfiling authority under other environmental statutes, see ITT Rayonier, 627 F.2d at 996, 10 ELR at 20945 (a CWA case noting that the legislative history of that statute "is replete with references to 'dual' or 'concurrent' enforcement authorities"); United States v. Cargill, Inc., 508 F. Supp. 734, 11 ELR 20649 (D. Del. 1981) (CWA); United States v. SCM Corp., 615 F. Supp. 411, 15 ELR 21007 (D. Md. 1985) (CAA); United States v. City of N. Adams, 777 F. Supp. 61, 68-69, 82-83, 22 ELR 20513, 20523-24 (D. Mass. 1991) (Safe Drinking Water Act).

263. See, e.g., the district court's discussion of South Carolina's enforcement action in Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 890 F. Supp. 470, 26 ELR 20457 (D.S.C. 1995), vacated as moot, 149 F.3d 303, 28 ELR 21444 (4th Cir. 1998), cert. granted, 119 S. Ct. 1111 (1999).

264. See 30 Env't Rep. (BNA) 1419 (Dec. 3, 1999). The states were California, Connecticut, Iowa, Louisiana, and New York.

265. Id.

266. Id.

267. 168 F.3d 1377, 29 ELR 21021 (D.C. Cir. 1999).

268. Id. at 1380, 29 ELR at 21022; but see United States v. Gulf States Steel Inc., 54 F. Supp. 2d 1233, 1242-43, 29 ELR 21381, 21384 (N.D. Ala. 1999) (applying Alabama law in determining that the defendant could not collaterally attack the terms of its state-is-sued permit).

269. 168 F.3d at 1382, 29 ELR at 21023 (referencing 33 U.S.C. § 1369(b), ELR STAT. FWPCA § 509(b)).

270. Id. at 1382-83, 29 ELR at 21023.

271. Id. at 1381, 29 ELR at 21022; 33 U.S.C. § 1319(g)(1), ELR STAT. FWPCA § 309(g)(1).

272. Id.

273. 15 F.3d 1100, 24 ELR 20511 (D.C. Cir. 1994).

274. 175 F.3d 410, 29 ELR 21108 (6th Cir. 1999).

275. The Lakeland court also concluded that an administrative enforcement action can never qualify as an action "in a court" for purposes of the bar provision in § 505(b)(1)(B) of the CWA. 175 F.3d at 414, 29 ELR at 21109. In so holding, the Sixth Circuit joins the Second and Ninth Circuits. See Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 15 ELR 20674 (2d Cir. 1985); Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 18 ELR 20237 (9th Cir. 1987); but see Student Pub. Interest Research Group of N.J. v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131, 15 ELR 20427 (3d Cir. 1985) (applying a functional equivalence test under which some administrative actions might be deemed to qualify as actions "in a court").

276. See 33 U.S.C. § 1319(g)(6)(A)(ii) and (iii), ELR STAT. FWPCA § 309(g)(6)(A)(ii) and (iii).

277. See 175 F.3d at 416, 29 ELR at 21110.

278. Id. at 421, 29 ELR at 21112 (Krupansky, J., dissenting).

279. Id.

280. See North and S. Rivers Watershed Ass'n v. Town of Scituate, 949 F.2d 552, 22 ELR 20437 (1st Cir. 1991); Arkansas Wildlife Fed'n v. ICI Ams., Inc., 29 F.3d 376, 24 ELR 21573 (8th Cir. 1994).

281. 83 F.3d 1111, 1118, 26 ELR 21152, 21155 (9th Cir. 1996); see also Atlantic States Legal Found. v. Universal Tool & Stamping Co., 735 F. Supp. 1404, 1415, 20 ELR 21152, 21157 (N.D. Ind. 1990) (quoting legislative history supporting its conclusion that "the state law must include provisions as to public notice and participation, penalty assessment, judicial review, and other matters comparable to those in [§ 309(g)]" in order to give rise to preclusive effects under that subsection).

282. 185 F.3d 529, 29 ELR 21403 (6th Cir. 1999).

283. 42 U.S.C. § 7604(e), ELR STAT. CAA § 304(e).

284. 185 F.3d at 532, 29 ELR at 21404; see also 42 U.S.C. § 7418, ELR STAT. CAA § 118.

285. 185 F.3d at 533, 29 ELR at 21405.

286. Id. at 533-34, 29 ELR at 21405 (citing 503 U.S. 607, 22 ELR 20804 (1992)).

287. 1999 WL 1044367, 30 ELR 20168 (9th Cir. 1999); see also United States v. National Steel Corp., 782 F.2d 62, 64, 16 ELR 20352 (6th Cir. 1986).

288. 1999 WL 1044367, at *2, 30 ELR 20168. Compare United States v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 1247-48, 20 ELR 20035, 20072 (N.D. Ind. 1989), aff'd, 917 F.2d 327, 21 ELR 20007 (7th Cir. 1990) (allowing fees to an intervenor under § 7002 of RCRA); United States v. City of San Diego, 18 F. Supp. 1090, 1096, 28 ELR 21584 (S.D. Cal. 1998) (awarding fees under CWA) with United States v. Maine Dep't of Transp., 980 F. Supp. 546, 548-50 (D. Me. 1997) (denying recovery under the CWA). See also S. REP. NO. 99-50, at 33 (1987) (legislative history from the 1987 CWA amendments indicating that fee recovery should be unavailable to one "who intervenes in a case and, although technically on the winning side, fails to make a substantial contribution to the outcome of the case").

289. 119 S. Ct. 1624, 29 ELR 21133 (1999). For discussions of the decision and its implications for takings jurisprudence, see Steven J. Eagle, Del Monte Dunes, Good Faith, and Land Use Regulation, 30 ELR 10100 (Feb. 2000); John D. Echeverria, Revving the Engines in Neutral: City of Monterey v. Del Monte Dunes at Monterey, Ltd., 29 ELR 10682 (Nov. 1999).

290. 512 U.S. 374, 24 ELR 21083 (1994).

291. 119 S. Ct. at 1635, 29 ELR at 21135.

292. 42 U.S.C. § 1983.

293. 505 U.S. 1003, 22 ELR 21104 (1992).

294. 119 S. Ct. at 1644, 29 ELR at 21139. It is important to note the narrowness of Del Monte Dunes' jury trial aspects. As noted by the Court, the Seventh Amendment applies neither to suits where the United States is alleged to have taken property, nor to suits brought against state or local governmental entities in state court. Id. at 1643, 29 ELR at 21139.

295. 189 F.3d 1355, 30 ELR 20102 (Fed. Cir. 1999); 28 F.3d 1171, 1179, 24 ELR 21072, 21076 (Fed. Cir. 1994).

296. 189 F.3d at 1361, 30 ELR at 20104. The concept of "reasonable, investment-backed expectations" derives, of course, from the Supreme Court's opinion in Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 8 ELR 20528, 20533 (1978).

297. 189 F.3d at 1361, 30 ELR at 20104 (quoting Loveladies, 28 F.3d at 1177, 24 ELR at 21075).

298. Id.

299. Id. (citations omitted).

300. Id.

301. 657 F.2d 1184, 1193, 11 ELR 20905, 20909 (Ct. CI. 1981).

302. 189 F.3d at 1362-63, 30 ELR at 20105.

303. 177 F.3d 1360, 29 ELR 21174 (Fed. Cir. 1999).

304. 41 F.3d 627, 632 (Fed. Cir. 1994).

305. 177 F.3d at 1367, 29 ELR at 21176.

306. Id. at 1365-66, 29 ELR at 21175-76; see also Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016 n.7, 22 ELR 21104, 21108 n.7 (1992); Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1179-82, 24 ELR 21072, 21076 (Fed. Cir. 1994).

307. 177 F.3d at 1367, 29 ELR at 21176.

308. Id. at 1365-66, 29 ELR at 21175-76.

309. Id. at 1366, 29 ELR at 21176.

310. Id.

311. Lucas, 505 U.S. at 1016 n.7, 22 ELR at 21107-08 n.7.

312. 45 Fed. CI. 21 (1999).

313. See 18 F.3d 1560, 1568-73, 24 ELR 21036, 21039-42 (Fed. Cir. 1994).

314. 45 Fed. Cl. at 31 (quoting 18 F.3d at 1571, 24 ELR at 21041).

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