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April 21, 2020 Supreme Court issues Landmark CERCLA Ruling Finding that State Law Challenges to USEPA Cleanup Can Be Raised in State Court (But Plaintiffs Still Lose)

Siros Lawson HeadshotBy Steven M. Siros and Matthew G. Lawson

On Monday, April 20, 2020, the United States Supreme Court issued a key opinion regarding the preclusive effect of the Comprehensive Environmental Response, Compensation and Recovery Act (CERCLA), 42 U.S.C. Section 9601, on state common law remedies within Superfund Sites.  In Atlantic Richfield v. Christian, Case No. 17-1498, the Supreme Court affirmed in part and vacated in part a decision by the Montana Supreme Court that “restoration claims” asserted by private property owners could go forward against a potentially responsible party (PRP) that had previously settled its CERCLA liability with the United States Environmental Protection Agency (USEPA). 

The case involves the Anaconda Smelter Site, a Superfund site covering 300 square miles of property contaminated by historical smelter and ore processing operations.  In 1983, USEPA identified Atlantic Richfield Co. as a PRP for the site’s contamination and the parties entered into a settlement agreement that required Atlantic Richfield to investigate and remediate the site under the oversight of USEPA.  In the 37 years since, USEPA has managed an extensive cleanup at the site, which included the removal of 10 million cubic yards of contaminated soil and capping in place an additional 500 million cubic yards of waste over 5,000 acres.  Atlantic Richfield estimates that it has spent approximately $450 Million USD remediating the site and that its cleanup is nearly complete. 

However, the USEPA-mandated cleanup standards were deemed insufficient by a number of local landowners who allege that their properties remain damaged by Atlantic Richfield’s contamination.  The landowners asserted common law tort claims against Atlantic Richfield seeking funds to remediate their properties—located within the Superfund Site—beyond the levels required by the USEPA-approved remedy.  For example, the plaintiffs sought funding to remediate arsenic levels in their properties’ soil to a level of 15 parts per million, rather than the 250 parts per million limit approved by USEPA.  In total, the additional cleanup efforts sought by plaintiffs are estimated to cost Atlantic Richfield an additional $50 to $58 million in cleanup costs.  Following the Montana Supreme Court’s holding that the landowner’s restitution claims could proceed in spite of Atlantic Richfield’s settlement with USEPA and the ongoing cleanup effort, Atlantic Richfield appealed the issue to the Supreme Court.

Atlantic Richfield argued that plaintiff’s claims were barred because CERCLA §113 strips courts of the jurisdiction to review challenges to USEPA cleanup plans.  Atlantic Richfield further argued that plaintiffs’ restoration claims were precluded by CERCLA §122(e)(6), which provides that “no potentially responsible party may undertake any remedial action” at the site without EPA approval.  Atlantic Richfield cautioned that the Montana Supreme Court’s contrary reading of CERCLA would throw a wrench into the Act’s carefully balanced settlement scheme by allowing landowners at Superfund sites to “shred EPA’s plans and impose different, and potentially detrimental, multimillion-dollar cleanups.”  In an amicus brief, The Chamber of Commerce and other industry groups sided with Atlantic Richfield, arguing that the Montana Supreme Court’s ruling would create “chaos across the Nation’s Superfund sites, with EPA pursuing one remediation course and various ad hoc private lawsuits mandating different, potentially dangerous or conflicting remediation work.” An amicus brief was also filed by the Solicitor General on behalf of the United States, which argued that the Supreme Court should deny Atlantic Richfield’s writ of certiorari because the Montana Supreme Court had yet not reached a final judgment in the underlying dispute and review of the proposed questions was premature at the current state of litigation. However, the Solicitor’s amicus brief went on to state that—in the event the Supreme Court granted certiorari—the Court should find that that Montana Supreme Court erred in holding that the landowner’s claims for restoration damages did not constitute “challenges” to USEPA’s selected remedy under CERCLA §113. The Solicitor reasoned that enactment of the landowner’s proposed restoration actions would “directly impact the implementation” of USEPA’s existing remedy and that the proposed actions therefore constituted a challenge to the cleanup.

In response, plaintiffs argued that their common law claims were not barred by CERCLA §113 because the claims did not “arise under” CERCLA.  In addition, the plaintiffs argued their claims for money to restore their property did not constitute a “challenge” to the cleanup because plaintiffs were not seeking to overturn the USEPA order or otherwise asking the court to review that order. Rather, plaintiffs were merely seeking to compel Atlantic Richfield to “restore” their impacted properties by further removing impacted soils that remained unaddressed by the USEPA cleanup order based on Minnesota common law statutes.

In a split opinion, the Supreme Court ultimately held that the plaintiff’s state law claims against Atlantic Richfield were not precluded by CERCLA, but that the plaintiffs could not move forward with additional restoration activities without first securing approval from USEPA. First, the court held that §113 did not divest the Montana Supreme Court of jurisdiction over plaintiff’s claims because the state common law claims did not arise under CERCLA. However, the Supreme Court went on to find that—as owners of property located within the Superfund Site—plaintiffs were themselves PRPs for the Anaconda Smelter Site. Thus, under CERCLA §122, plaintiff were precluded from implementing any remedial actions at the site without first securing USEPA approval. As reasoned by Chief Justice Robert’s majority opinion, “under the landowners' interpretation, property owners would be free to dig up arsenic-infected soil and build trenches to redirect lead-contaminated groundwater without even notifying EPA…[w]e doubt Congress provided such a fragile remedy to such a serious problem.” 

Justice Alito filed a separate opinion—concurring in part and dissenting in part—in which the Justice endorsed the Court’s finding that plaintiffs were PRPs under CERCLA. However, Justice Alito argued that the court should not have reached the question of whether state courts have jurisdiction to entertain “challenges” to EPA-approved cleanups. Justice Alito went on to clarify his understanding that under the Court’s majority opinion, “the Montana Supreme Court has two options on remand: (1) enter a stay to allow the landowners to seek EPA approval or (2) enter judgment against the landowners on their restoration damages claim without prejudice to their ability to refile if they obtain EPA approval.” Under either scenario, USEPA approval would be required and therefore Justice Alito concluded that the Court should not have opined on the jurisdictional question.

Justice Gorsuch also filed a separate opinion concurring in part and dissenting in part, in which Justice Thomas joined. Justice Gorsuch agreed that the Montana state court had jurisdiction over plaintiffs’ state law claims but disagreed with the Court’s conclusion that plaintiffs were PRPs under CERCLA and therefore precluded under CERCLA §122 from challenging the USEPA cleanup plan. Justice Gorsuch argued that CERCLA was enacted to supplement, not supplant, state common law remedies available to innocent landowners damaged by third-party contamination. Thus, Justice Gorsuch opined that plaintiffs’ state law claims should be allowed to go forward without the need to secure permission from USEPA.

Jenner & Block’s Corporate Environmental Lawyer will continue to track and update on this case as it is remanded back to the Montana Supreme Court.

CATEGORIES: Cercla, Toxic Tort, Water

PEOPLE: Steven M. Siros, Matthew G. Lawson

February 21, 2020 EPA Announces Regulatory Determination to Regulate PFAS in Drinking Water

Headshot By Matthew G. Lawson PFAS   

On Thursday, February 20, 2020, the U.S. Environmental Protection Agency (“EPA”) announced a preliminary regulatory determination that the agency will seek to implement regulatory limits for Per- and Polyfluoroalkyl Substances (PFAS) in public drinking water across the United States.  The regulatory determination is a key step in the creation of a Maximum Contamination Level (“MCL”) that will act to limit the quantity of PFAS permitted in public drinking water.  In its preliminary regulatory determination, EPA proposes setting MCL levels for two PFAS substances, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which EPA has determined meet the statutory criteria to become regulated contaminants under the Safe Drinking Water Act.  To meet this criteria, EPA had to find that: (1) the consumption of PFOS and PFOA may result in adverse health effects; (2) PFOS and PFOA have been identified in public water supplies at frequencies and levels sufficient to cause a public health concern; and (3) that new regulation presents a meaningful opportunity to reduce the health risks posed by PFOS and PFOA.

As part of its announcement, EPA will seek public comments on its preliminary findings for the next 60 days.  Critically, the preliminary regulatory determination offers no insight into the regulatory levels EPA anticipates setting for PFOS or PFOA.  Through its voluntary Health Advisory Level (“HAL”), EPA currently recommends that municipalities maintain a maximum limit of 70 parts per trillion of PFAS in drinking water served to the public.  While the HAL is referenced in EPA’s preliminary regulatory determination, it is unclear whether EPA will look to set PFOS or PFAS’ mandatorily MCL at a similar level.  EPA’s election to regulate PFOS and PFOA kicks off a two-year period for the agency to determine an appropriate MCL for the contaminants.  Following the formal proposal of an MCL, the agency has another 18 months to set its final drinking water requirements.  

The release of a preliminary regulatory determination marks a critical step in EPA’s implementation of its PFAS Action Plan.  Under the PFAS Action Plan, EPA has committed to “identifying and understanding PFAS, [ ] addressing current PFAS contamination, preventing future contamination, and effectively communicating with the public about PFAS.” The plan sets forth four overarching goals for regulating PFAS:

  1. Consider the creation of an MCL for PFOA and PFOA;
  2. Begin necessary steps to propose designating PFOA and PFOS as “hazardous substances” through available federal statutory mechanisms, including CERCLA, RCRA, TSCA and the CWA;
  3. Develop and implement groundwater cleanup recommendations for PFOA and PFOS at contaminated sites;
  4. Develop toxicity values or oral reference doses for various PFAS chemicals.

Under the Trump Administration, the EPA has repeatedly affirmed that addressing the emerging contaminant PFAS is a key and ongoing priority for the agency.  As stated in the PFAS Action Plan, “the EPA has heard clearly the public’s desire for immediate action to address potential human health and economic impacts from PFAS in the environment.”  In fact, despite proposing large cuts to EPA’s overall budget, the Trump Administration’s proposed budget for 2021 requests an additional $6 million dollars from Congress to carry out EPA’s PFAS Action Plan. “Under President Trump, EPA is continuing to aggressively implement our PFAS Action Plan – the most comprehensive cross-agency plan ever to address an emerging chemical,” stated EPA Administrator Andrew Wheeler. “With today’s action, EPA is following through on its commitment in the Action Plan to evaluate PFOA and PFOS under the Safe Drinking Water Act.”

CATEGORIES: Consumer Law and Environment, Sustainability, Toxic Tort, Water

PEOPLE: Matthew G. Lawson

January 13, 2020 Failure to Designate PFAS as Hazardous Substance May Doom Medical Monitoring Lawsuit

Linkedin_Steven_Siros_3130 PFOAPFOS

The fact that neither perfluorooctanoic acid (PFOA) nor perfluorooctane sulfonic acid (PFOS) is classified as a hazardous substance may prove fatal to plaintiffs’ efforts to convince a federal court to allow a novel citizen suit to proceed.  In the case of Kristen Giovanni, et al. v. Navy which is pending in the U.S. District Court for the Eastern District of Pennsylvania, plaintiffs brought a citizen suit under a Pennsylvania cleanup statute seeking to compel the Navy to monitor residents for potential health issues linked to PFOS and PFOA exposure. In October 2018, the Third Circuit Appellate Court affirmed an earlier ruling from the district court that had rejected plaintiffs’ efforts to compel the Navy to undertake a government-led health assessment, finding that such a request constituted an impermissible challenge to an ongoing CERCLA response action. The Third Circuit concluded that plaintiffs' request for a government-led health study sought injunctive relief that could potentially interfere with the ongoing response action at the site. Plaintiffs’ request for medical monitoring, on the other hand, sought to compel the Navy to fund a trust, which the Third Circuit concluded was not a challenge to ongoing response actions at the site.

During a hearing following remand from the Third Circuit, the district court judge noted that Section 1115 of Pennsylvania’s Hazardous Sites Cleanup Act (HSCA) (which provides for a citizen-suit right of action) only provides relief for HSCA designated “hazardous substances.” Although plaintiffs’ counsel argued that PFOA and PFOS fell within the HSCA’s definition of “hazardous substances,” in fact neither substance has been designated as a “hazardous substance” under CERCLA, nor have they been so designated by the Pennsylvania Department of Environmental Protection. In what may be foreshadowing of how the court intends to rule, the judge noted that if he were to dismiss plaintiffs’ case, in the event that either the state or U.S. EPA were to designate PFOA and/or PFOS as “hazardous substances,” plaintiffs would be able to file a new lawsuit.

CATEGORIES: Climate Change, Hazmat, Sustainability, Toxic Tort, Water

PEOPLE: Steven R. Englund, Steven M. Siros

December 30, 2019 New York Bans PFAS Chemicals in Firefighting Foam as Industry Fights for Exemptions

HeadshotBy Matthew G. Lawson

On December 23, 2019, New York Governor Andrew M. Cuomo gave conditional approval to a state ban on firefighting foams containing per- and polyfluoroalkyl substances (known as “PFAS”).  PFAS, commonly referred to as “forever chemicals” due to their ongoing persistence in the environment, are a family of man-made chemicals commonly found in a variety of products, including food packaging, cookware, stain-resistant clothing, and, in the case of perfluorooctane sulfonic acid (PFOS), many types of firefighting foams.  According to the U.S. EPA, PFAS chemicals are not only “extremely persistent in the environment,” but have also been linked to numerous health conditions including cancer in humans.

The legislation (“A445A”) requires the New York Office of Fire Prevention and Control to promulgate regulations that will provide guidance for state agencies and local government to avoid the purchase of firefighting foams containing PFAS compounds and outright prohibits the manufacture of PFAS containing firefighting foams within two years of the effective date of the bill.  As a condition to his approval, Governor Cuomo noted that an amendment to the current legislation was needed to allow discretionary use of firefighting agents containing PFAS where no other viable options exist.  On the basis of an agreement with the New York legislature to implement these amendments, the Governor conditionally approved the bill.    

With the enactment of the legislation, New York becomes the third U.S. state to ban PFAS chemicals behind Washington and New Hampshire. In addition, six other states have enacted some form of partial prohibitions on the use of foams containing PFAS chemicals.  In response to the recent state legislation, the FluoroCouncil has affirmed that use of firefighting foam containing PFAS “is credited with saving lives and property” and that use of such foams may be essential for extinguishing fires caused by flammable liquids.

Regulation of PFAS chemicals is also being considered at the federal level.  As noted in a prior blog by the Corporate Environmental Lawyer, a federal bill is currently being considered that would require the U.S. EPA to promulgate drinking water standards for PFOS as well as perfluorooctanoic acid (PFOA), another common chemical in the PFAS family.  According to the Congressional Budget Office (CBO), the estimated cost of implementing these federal standards across the country are likely to exceed “several billion dollars.” The Corporate Environmental Lawyer will continue to update on forthcoming or pending state and federal legislation regarding PFAS chemicals.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Hazmat, Sustainability, Toxic Tort

PEOPLE: Matthew G. Lawson

July 29, 2019 Exploring the E-Suite with Elizabeth Anderson, Ph.D., Fellow ATS, Chief Science Officer and Senior Fellow, Exponent, Inc.; formerly, Carcinogen Assessment Group and Office of Health and Environmental Assessment, U.S. EPA

Exploring The E-Suite@2x-100

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Exploring the E-Suite with Elizabeth Anderson, Ph.D., Fellow ATS, Chief Science Officer and Senior Fellow, Exponent, Inc.; formerly, Carcinogen Assessment Group and Office of Health and Environmental Assessment, U.S. EPA

  1. I understand that you worked for U.S. EPA when it was first started as a federal agency in the early 1970s. What was your role at the “new” U.S. EPA?

I led the health sciences assessment work for the first 14 years after U.S. EPA was formed in December 1970. At the time, U.S. EPA was a very small agency. I was the only health scientist in an eight-person Office of Technical Analysis, reporting directly to U.S. EPA’s first Administrator, Bill Ruckelshaus. He is an extraordinary person—a terrific and committed leader, who also knew how to make hard work fun. The Administrator asked me to lead an intra-agency committee to write a cancer policy to address the zero risk tolerance expectation for substances with some evidence, often conflicting, of carcinogenicity, as indicated by tumors in animals or humans. Another challenge was that substances could be ubiquitous or important to our society. We knew a “zero tolerance” policy for all possible carcinogens would be unworkable, so my committee reported out a process rather than a cancer policy. That process was the first use of risk assessment to organize what is known and unknown about the likelihood that exposure to a particular agent might cause illness. On the assumption the agent might cause illness, the next step is to define what levels of risk and exposure would be acceptable and protective of public health. The concept of risk acceptance was novel at the time and was introduced in a social and political climate aimed at seeking the ideal, i.e., zero risk.

My office at U.S. EPA conducted and I co-authored more than 150 risk assessments between 1976 and 1983 as a basis for defining major regulatory policy. The National Academy of Sciences published its endorsement of this risk assessment process in 1983. The Academy’s report, referred to as “The Red Book,” inspired national and international adoption of the U.S. EPA’s approach to risk assessment started by my intra-agency committee. I led the effort to expand the health assessment program, which resulted in establishing the central risk assessment office for the Agency—the Office of Health and Environmental Assessment. This office reported directly to the Administrator, who granted us wide latitude to expeditiously conduct our assessments.

  1. What was your professional and academic background leading to your involvement in health risk assessment?

My academic background is in synthetic organic chemistry, the chemistry of making organic molecules, amongst other applications, to be biologically active. I was pre-med at the College of William and Mary, but I was strongly discouraged from pursuing medical school “because I would be taking the place of a man” (a quote from the Chairman of the Chemistry Department). Instead, I was granted a fellowship at the University of Virginia to pursue a master’s degree in synthetic organic chemistry. Next, I applied for a unique fellowship being granted by the U.S. Department of Defense and completed my Ph.D. work in synthetic organic chemistry. During those early years of U.S. EPA, my degree and training best fit the Agency’s needs. There were no degrees in toxicology, relevant applications in epidemiology were just emerging, and mechanism of action had received little attention. I was fortunate to be in the right place at the right time.

  1. What was it like to be part of the start of a new federal agency?

Most of all, it was challenging. Following the civil rights movement, the anti-Vietnam war movement, and 20 million people marching on the first Earth Day, the spirit of the time was that significant change can happen; every move at EPA was front-page news. We all felt a sense of urgency to make a difference and establish scientific credibility for all decisions that the Agency had to make. U.S. EPA inherited a rapidly cascading series of enabling legislation starting with the Clean Air Act in December of 1970, followed by amendments to the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide, and Rodenticide Act; Radiation Authorities; the Drinking Water Act; “Superfund” (CERCLA); and the Resource Conservation and Recovery Act (RCRA). All compelled the Agency to be protective of public health. Implementing this Congressional directive was left to the Agency and, for our part, this meant meeting strict deadlines and establishing scientific foundations that defined protection and that could survive challenges from Congress and the scientific, private, public, and legal communities.

At a very young age, many of us at U.S. EPA inherited a great deal of responsibility. New areas of complexity seemed to develop on a daily basis. Looking back, a culture of committed, young professionals worked hard and achieved a great deal. We were inspired by the excitement and challenge of those times. Many of us have remained friends and colleagues until the present day. Some of us are still involved, as board members of the U.S. EPA Alumni Association.

  1. What were some of the accomplishments of which you were most proud that came out of your work for U.S. EPA?

I am proud of many things, but I am most proud of my role in co-authoring the first guidelines to establish risk assessment and risk management as the basis for setting public policy to protect public health and having the opportunity to found and direct U.S. EPA’s first health assessment offices, the Carcinogen Assessment Group, and the expanded Office of Health Environmental Assessment. In addition, I had the opportunity to found and direct the Agency’s expansion of health topics to include reproductive risk assessment, mutagen risk assessment, and exposure assessment groups; these offices conducted all risk assessments for the Agency’s program offices for many years.

I was fortunate to be a part of establishing the scholarship in this rapidly developing and complex field of health risk assessment. A small number of us founded the Society for Risk Analysis, a focal point for sharing scientific developments from all sectors, including engineering and the social sciences. I served as one of the early Presidents and, for 10 years, was Editor-in-Chief of the Society’s flagship journal, Risk Analysis: An International Journal. In addition, as U.S. EPA’s representative, I had the privilege of participating in the worldwide application of risk assessment first in Europe through the World Health Organization and subsequently through the Pan American Health Organization and other organizations.

  1. After you left U.S. EPA, you have had several professional engagements. Can you summarize those for us?

After spending 14 years being a part of U.S. EPA’s founding, I entered the private sector, initially as President and CEO of the first private health and environmental assessment consulting firm, Clement Associates. In addition to work for private clients, U.S. EPA contracted with me to oversee and direct the first risk assessments for all of its Superfund sites, as did the Agency for Toxic Substances and Disease Registry to direct and write the first Toxicity Profiles. Later, I founded my own company, Sciences International, and directed it for 13 years, during which we addressed a wide variety of interesting and challenging issues. Subsequently, Exponent asked me to serve as Vice President for Health Sciences, a post I served in for 10 years, then as Chief Science Officer. More recently, I am honored to accept the Exponent designation of Senior Fellow, a rare recognition by the Company. Presently, I continue my work in the field of health risk assessment. I know that the framework and process we created in the early years made it possible to identify gaps in knowledge and point to ways for improving the foundations for health risk assessment.

  1. What are the emerging policy issues in the area of human health risk assessment?

Without a doubt, the need to sensibly apply the science we know to separate the important from the unimportant issues. Often, I feel that we lose sight of the fact that health risk assessment has achieved endorsement worldwide as the premier way to address the complexity of issues involved in defining public health protection. Also, the outcomes of risk assessment now have challenging new applications, e.g., in toxic tort litigation or world trade decisions.

In the policy area, one important emerging issue is the use of health risk assessment to “prove safety.” Adopting ever-diminishing levels of possible protection to achieve this goal effectively creates a “zero tolerance” policy, the very policy that would have defeated U.S. EPA at its inception. I believe that little is gained by these controversial policies that create debate for years; under these approaches we can lose sight of what is important. For example, important EPA risk assessment documents may now take years to become final because of endless debates in areas of scientific uncertainty where societal impacts can be enormous but risk reduction uncertain and marginal. We accept risk in every other part of our society, so it is unrealistic to apply a zero-risk policy to our environmental decisions.

Secondly, I feel that it is most unfortunate that the sciences so essential to public health understanding are often caught in agendas that constrain even the most objective review and use of our public health documents. There is no question that science has become politicized. I contend that U.S. EPA would have been lost without access to all scientists of importance to our decisions, regardless of who had funded their work.

Finally, I see an increasing lack of understanding of the difference between science as applied to public health protection—to preempt and prevent disease—and the science of establishing causality. It is critical to use honest science, regardless of the setting, to avoid mistakes. Distortion of scientific foundations and fact to achieve economic or political gain is deplorable and should be rejected.

  1. What do you enjoy most about your work in the field of human health risk assessment?

The endless challenges. Risk assessment demands that we honestly express what is known and unknown. Exploring the unknowns and narrowing our knowledge gaps are endlessly rewarding endeavors.

  1. What do you find to be the most challenging aspect of your work?

It is very difficult to find a single answer to this question. Exploring new science will always be at the top of the list. The greatest non-scientific challenge is the fact that not all are in engaged in finding the truth. Trying to explain the known scientific facts in situations involving exploitation of scientific unknowns or distortion, whether in the courtroom or as a part of political debate, is challenging. The climate created by the spirit of the ’60s was to seek the truth. We were all essentially on the same page; we shared common goals even as we debated the best methods of scientific approach. Today, goals often do not converge; science in the age of polarization is challenging.

  1. What or who helped you succeed as a leader in the area of human health risk assessment?

I have been surrounded by thought leaders and gifted people throughout my career. The environmental movement attracted so many to the new U.S. EPA. One who contributed so much to my understanding was Dr. Roy Albert, the Deputy Director of the School of Environmental Medicine at NYU. He was blessed with an extraordinary intellect and excellent sense of balance. He was the outside Chair of our Carcinogen Assessment Group in the early years, a role that would not be possible in the bureaucracy today. And I must continue to give credit to U.S. EPA Administrator Ruckelshaus.

  1. What advice would you give a young person today who is considering starting out in your field?

Follow your dreams. Work is never work if you feel passionate about what you are doing. Achieve the best education you can get and keep your options open. You may need to help create your own opportunity. Have confidence in your capabilities to achieve your goals and set high ones.

Dr. Anderson was interviewed by Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice, Jenner & BlockSigel_Gabrielle_COLOR

CATEGORIES: Air, Cercla, Consumer Law and Environment, RCRA, Toxic Tort, Water

PEOPLE: Gabrielle Sigel

April 11, 2019 Jenner & Block's Insurance Coverage for Environmental Claims Webinar

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Jenner & Block Logo 

By Steven M. Siros

On Tuesday, April 16th, from 12:00 - 1:00 pm CST, Jenner & Block is hosting an interactive webinar that will discuss how environmental claims can arise in many different contexts and how high costs can be avoided. One way to manage the cost of environmental claims associated with historical operations is to pursue coverage under historical (and often pre-pollution exclusion) occurrence-based commercial general liability insurance policies. Our panelists will discuss the nuances and pitfalls that can arise in environmental insurance litigation and creative strategies to maximize recovery. In addition, companies facing environmental risks in their current operations or transactions can also manage environmental risk through a variety of current insurance products. Our panelists will identify current options available to manage environmental risks going forward and provide insight into the costs and benefits of those insurance products.

Jenner & Block Partners Allison Torrence and Brian Scarbrough will be panelists, along with Richard Reich, Managing Director at Aon Risk Services Central, Inc. Jenner & Block Associate Alex Bandza will moderate the webinar.

Please click here to RSVP for this webinar.

 

CATEGORIES: Climate Change, Consumer Law and Environment, Real Estate and Environment, Sustainability, Toxic Tort

PEOPLE: Steven R. Englund, Allison A. Torrence, Steven M. Siros

April 11, 2019 Jenner & Block's Insurance Coverage for Environmental Claims Webinar

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By Steven M. Siros

On Tuesday, April 16th, from 12:00 - 1:00 pm CST, Jenner & Block is hosting an interactive webinar that will discuss how environmental claims can arise in many different contexts and how high costs can be avoided. One way to manage the cost of environmental claims associated with historical operations is to pursue coverage under historical (and often pre-pollution exclusion) occurrence-based commercial general liability insurance policies. Our panelists will discuss the nuances and pitfalls that can arise in environmental insurance litigation and creative strategies to maximize recovery. In addition, companies facing environmental risks in their current operations or transactions can also manage environmental risk through a variety of current insurance products. Our panelists will identify current options available to manage environmental risks going forward and provide insight into the costs and benefits of those insurance products.

Jenner & Block Partners Allison Torrence and Brian Scarbrough will be panelists, along with Richard Reich, Managing Director at Aon Risk Services Central, Inc. Jenner & Block Associate Alex Bandza will moderate the webinar.

Please click here to RSVP for this webinar.

 

CATEGORIES: Climate Change, Consumer Law and Environment, Real Estate and Environment, Sustainability, Toxic Tort

PEOPLE: Steven R. Englund, Allison A. Torrence, Steven M. Siros

April 3, 2019 New Jersey Puts PFAS Manufacturers in the Cross-Hairs

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By Steven M. Siros

Dep_smallNew Jersey continues to take an aggressive stance with respect to per- and polyfluoralkyl (PFAS) contamination. On March 25, 2019, the New Jersey Department of Environmental Protection (NJDEP) issued a “Statewide PFAS Directive Information Request and Notice to Insurers” to five major chemical companies notifying those companies that NJDEP believed them to be responsible for PFAS impacts to the air and waters of New Jersey. In addition to seeking recovery from these companies for past costs incurred by NJDEP to investigate and remediate PFAS impacts, the Directive also seeks to compel these companies to assume responsibility for ongoing remediation of drinking water systems throughout the state. The Directive further seeks information from these companies regarding historical PFAS manufacturing practices as well as information regarding these companies’ ongoing efforts to manufacture PFAS replacement chemicals.

Although environmental organizations have been quick to praise the NJDEP Directive, in reality, the state agency may have overstepped its authority. NJDEP has been quick to point out that the Directive is not a final agency action, formal enforcement order, or other final legal determination and therefore cannot be appealed or contested. Notwithstanding NJDEP’s efforts to insulate its Directive from immediate legal challenge, it will almost certainly draw strong industry challenges. For example, NJDEP’s efforts to obtain information regarding PFAS replacement chemicals may run afoul of the Toxic Substances Control Act and its efforts to compel reimbursement of past claims and/or the takeover of ongoing remedial actions will certainly be the subject of court challenges.

Continuing its full court PFAS press, on April 1, 2019, New Jersey unveiled a proposed drinking water standard of 14 parts per trillion (ppt) for PFOA and 13 ppt for PFOS. These proposed drinking water levels are significantly lower than the current U.S. EPA health advisory level of 70 ppt for combined PFOS/PFOA.

CATEGORIES: Air, Climate Change, Consumer Law and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Steven M. Siros

April 3, 2019 New Jersey Puts PFAS Manufacturers in the Cross-Hairs

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By Steven M. Siros

Dep_smallNew Jersey continues to take an aggressive stance with respect to per- and polyfluoralkyl (PFAS) contamination. On March 25, 2019, the New Jersey Department of Environmental Protection (NJDEP) issued a “Statewide PFAS Directive Information Request and Notice to Insurers” to five major chemical companies notifying those companies that NJDEP believed them to be responsible for PFAS impacts to the air and waters of New Jersey. In addition to seeking recovery from these companies for past costs incurred by NJDEP to investigate and remediate PFAS impacts, the Directive also seeks to compel these companies to assume responsibility for ongoing remediation of drinking water systems throughout the state. The Directive further seeks information from these companies regarding historical PFAS manufacturing practices as well as information regarding these companies’ ongoing efforts to manufacture PFAS replacement chemicals.

Although environmental organizations have been quick to praise the NJDEP Directive, in reality, the state agency may have overstepped its authority. NJDEP has been quick to point out that the Directive is not a final agency action, formal enforcement order, or other final legal determination and therefore cannot be appealed or contested. Notwithstanding NJDEP’s efforts to insulate its Directive from immediate legal challenge, it will almost certainly draw strong industry challenges. For example, NJDEP’s efforts to obtain information regarding PFAS replacement chemicals may run afoul of the Toxic Substances Control Act and its efforts to compel reimbursement of past claims and/or the takeover of ongoing remedial actions will certainly be the subject of court challenges.

Continuing its full court PFAS press, on April 1, 2019, New Jersey unveiled a proposed drinking water standard of 14 parts per trillion (ppt) for PFOA and 13 ppt for PFOS. These proposed drinking water levels are significantly lower than the current U.S. EPA health advisory level of 70 ppt for combined PFOS/PFOA.

CATEGORIES: Air, Climate Change, Consumer Law and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Steven M. Siros

April 2, 2019 Trends in Climate Change Litigation: Part 1

Matthew G. Lawson

Climate Change

By Matthew G. Lawson

The term “climate change litigation” has become a shorthand for a wide range of different legal proceedings associated with addressing the environmental impacts of climate change. Plaintiffs in climate change lawsuits may include individuals, non-governmental organizations, private companies, state or local level governments, and even company shareholders who, through various legal theories, allege that they have been harmed or will suffer future harm as a direct result of the world’s changing climate. The targets of climate change litigation have included individual public and private companies, government bodies, and even entire industry groups. While there appears to be no shortage of plaintiffs, defendants, or legal theories emerging in climate change litigation, one clear trend is that the number of these lawsuits has grown dramatically in recent years. By one count, more than fifty climate change suits have been filed in the United States every year since 2009, with over one hundred suits being filed in both 2016 and 2017.

In light of the growing trend of climate change litigation, Jenner & Block’s Corporate Environmental Lawyer blog is starting a periodic blog update which will discuss the emerging trends and key cases in this litigation arena.  In each update, our blog will focus on a sub-set of climate change cases and discuss recent decisions  on the topic. In Part 1 of this series, we will be discussing Citizen-Initiated Litigation Against National Governments.

Citizen-Initiated Litigation Against National Governments.

Perhaps the most high-profile and well-publicized cases in the climate change litigation arena have been lawsuits brought by private citizens against their own national government. A common objective of these cases is to push governments to implement policies aimed at reducing greenhouse gas (“GHG”) emissions through legal hooks such as international agreements, international treaties, or constitutional provisions. While the early focal point for these cases has been European countries, citizen-initiated litigation continues to spread across the globe, including the United States.

Several examples of this emerging type of litigation have included:

  • Urgenda Foundation v. The State of the Netherlands (2015): In the first internationally recognized climate change lawsuit asserted against a national government, a Dutch environmental group, the Urgenda Foundation, represented over 900 citizens in a lawsuit alleging that the Dutch government had failed to address the risks of climate change. Ruling in support of the citizen group, the Hague court determined that the Dutch government was required to protect the living environment from the dangers of climate change by reducing CO2 emissions a minimum of 25%—relative to 1990 levels—by the year 2020. This decision was later upheld by the Dutch court of appeals which recognized the plaintiffs’ claims under the European Convention on Human Rights, an international convention to protect human rights in Europe.
  • Friends of the Irish Environment v. Ireland (2018): Following the success of the Urgenda litigation, an Irish advocacy group, Friends of the Irish Environment (FIE), filed suit in the Irish High Court in an attempt to compel the government to increase its GHG emissions reduction goals. Following the path laid out in Urgenda, the FIE plaintiffs asserted their claims under the theory that the Irish government was not fulfilling its objectives under the Paris Climate Agreement. This case was argued before the High Court on January 22, 2019, and is currently awaiting a decision.
  • Juliana v. United States, 217 F. Supp. 3d 1224 (2016): Launched by the U.S. advocacy group, Our Children’s Trust, Juliana is a lawsuit filed by 21 young people (ages eight to nineteen) who assert that the United States is denying its youngest citizens their constitutional right to a safe and livable climate. Unlike the cases brought in Ireland or the Netherlands, the plaintiffs in Juliana have not taken the position that the United States is bound to reduce GHG emissions through any form of internal law or agreement. Instead, the plaintiffs’ complaint asserts the legal theory that the United States Constitution provides its citizens a substantive due process right “to a climate system capable of sustaining human life.” In conjunction with this argument, the plaintiffs have asserted a unique application of the centuries-old “Public Trust Doctrine,” arguing that the climate itself is a natural resource that must be held in trust for the people. Juliana has gone through a complex legal history, including multiple attempts at dismissal from both the Obama and now Trump administrations. Currently, the case is being briefed in front of the 9th Circuit on interlocutory appeal.

 

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Matthew G. Lawson

April 2, 2019 Trends in Climate Change Litigation: Part 1

Headshot

Climate Change

By Matthew G. Lawson

The term “climate change litigation” has become a shorthand for a wide range of different legal proceedings associated with addressing the environmental impacts of climate change. Plaintiffs in climate change lawsuits may include individuals, non-governmental organizations, private companies, state or local level governments, and even company shareholders who, through various legal theories, allege that they have been harmed or will suffer future harm as a direct result of the world’s changing climate. The targets of climate change litigation have included individual public and private companies, government bodies, and even entire industry groups. While there appears to be no shortage of plaintiffs, defendants, or legal theories emerging in climate change litigation, one clear trend is that the number of these lawsuits has grown dramatically in recent years. By one count, more than fifty climate change suits have been filed in the United States every year since 2009, with over one hundred suits being filed in both 2016 and 2017.

In light of the growing trend of climate change litigation, Jenner & Block’s Corporate Environmental Lawyer blog is starting a periodic blog update which will discuss the emerging trends and key cases in this litigation arena.  In each update, our blog will focus on a sub-set of climate change cases and discuss recent decisions  on the topic. In Part 1 of this series, we will be discussing Citizen-Initiated Litigation Against National Governments.

Citizen-Initiated Litigation Against National Governments.

Perhaps the most high-profile and well-publicized cases in the climate change litigation arena have been lawsuits brought by private citizens against their own national government. A common objective of these cases is to push governments to implement policies aimed at reducing greenhouse gas (“GHG”) emissions through legal hooks such as international agreements, international treaties, or constitutional provisions. While the early focal point for these cases has been European countries, citizen-initiated litigation continues to spread across the globe, including the United States.

Several examples of this emerging type of litigation have included:

  • Urgenda Foundation v. The State of the Netherlands (2015): In the first internationally recognized climate change lawsuit asserted against a national government, a Dutch environmental group, the Urgenda Foundation, represented over 900 citizens in a lawsuit alleging that the Dutch government had failed to address the risks of climate change. Ruling in support of the citizen group, the Hague court determined that the Dutch government was required to protect the living environment from the dangers of climate change by reducing CO2 emissions a minimum of 25%—relative to 1990 levels—by the year 2020. This decision was later upheld by the Dutch court of appeals which recognized the plaintiffs’ claims under the European Convention on Human Rights, an international convention to protect human rights in Europe.
  • Friends of the Irish Environment v. Ireland (2018): Following the success of the Urgenda litigation, an Irish advocacy group, Friends of the Irish Environment (FIE), filed suit in the Irish High Court in an attempt to compel the government to increase its GHG emissions reduction goals. Following the path laid out in Urgenda, the FIE plaintiffs asserted their claims under the theory that the Irish government was not fulfilling its objectives under the Paris Climate Agreement. This case was argued before the High Court on January 22, 2019, and is currently awaiting a decision.
  • Juliana v. United States, 217 F. Supp. 3d 1224 (2016): Launched by the U.S. advocacy group, Our Children’s Trust, Juliana is a lawsuit filed by 21 young people (ages eight to nineteen) who assert that the United States is denying its youngest citizens their constitutional right to a safe and livable climate. Unlike the cases brought in Ireland or the Netherlands, the plaintiffs in Juliana have not taken the position that the United States is bound to reduce GHG emissions through any form of internal law or agreement. Instead, the plaintiffs’ complaint asserts the legal theory that the United States Constitution provides its citizens a substantive due process right “to a climate system capable of sustaining human life.” In conjunction with this argument, the plaintiffs have asserted a unique application of the centuries-old “Public Trust Doctrine,” arguing that the climate itself is a natural resource that must be held in trust for the people. Juliana has gone through a complex legal history, including multiple attempts at dismissal from both the Obama and now Trump administrations. Currently, the case is being briefed in front of the 9th Circuit on interlocutory appeal.

 

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Matthew G. Lawson

December 17, 2018 New OSHA Enforcement Policy Under General Duty Clause for Worksite Exposure to Air Contaminants

 By Gabrielle Sigel

OSHA’s Directorate of Enforcement Programs recently issued an enforcement memorandum to all OSHA Regional Administrators providing a new “Enforcement Policy for Respiratory Hazards Not Covered by OSHA Permissible Exposure Limits” (“Enforcement Policy”). OSHA’s 2003 policy on the same topic is now superseded and archived.

The Enforcement Policy explains how and when OSHA will cite an employer for respiratory hazards from an air contaminant under the OSH Act’s General Duty Clause (“GDC”). The GDC is the statutory requirement that an employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  29 U.S.C. § 654(a)(1).  By regulation, OSHA has stated that “An employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirement of section 5(a)(1) of the Act, but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.” 29 CFR 1910.5(f).  There is an open question as to whether and when an employer is in violation of the law if either (a) OSHA has not set a regulatory exposure limit for a particular chemical; or (b) exposures are below OSHA’s regulatory Permissible Exposure Limit (“PEL”), but above another organization’s recommended occupational exposure limit (“OEL”) for the same chemical.  An OEL can be issued by, for example, an industry group, U.S. EPA, the National Institute for Occupational Safety and Health, or the American Conference of Governmental Industrial Hygienists.

OSHA’s new Enforcement Policy states that a GDC violation for airborne chemical exposures cannot be alleged unless OSHA can meet the 4-element standard of proof imposed by the courts for any GDC violation:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  2. The hazard was recognized;
  3. The hazard was causing or was likely to cause death or serious physical harm; and,
  4. There was a feasible and useful method to correct the hazard.

The Enforcement Policy provides that exceeding an OEL is not sufficient evidence on its own to support a GDC citation; all four of the above GDC proof elements must be met. However, even if all four elements cannot be proven, OSHA still can issue a Hazard Alert Letter (“HAL”) if exposures are above an OEL.  The Enforcement Policy includes a sample HAL. 

The Enforcement Policy also provides examples of the evidence that OSHA needs to prove a GDC violation for airborne exposures above an OEL. With respect to the first element—that employees were exposed—OSHA can rely on air sampling and other workplace-based evidence, including witness statements.  However, in contrast to many OSHA requirements when there is a regulatory PEL, in GDC cases, OSHA will consider whether the exposed employee is wearing respiratory protection.  Unlike the 2003 version of the policy, the 2018 Enforcement Policy specifically states that “if the exposed employees were wearing appropriate respiratory protection with no deficiencies in the respirator program, then the likelihood that OSHA could establish a respiratory hazard covered by the general duty clause would be low.”  However, OSHA does not preclude a GDC citation if respirators are used; the Enforcement Policy provides the exception for a respirator program only if that program has “no deficiencies.”

With respect to element #2—hazard recognition—the Enforcement Policy states that this element is met if: (a) there is direct evidence of employer knowledge; or (b) if the employer should have known of the hazard. Direct evidence can include prior receipt of a HAL or information regarding the hazard in a Safety Data Sheet prepared by a chemical’s manufacturer.  Indirect evidence can include an OEL issued by an industry association, professional organization, or a non-OSHA government agency.  With respect to GDC proof elements #3 and #4, OSHA states it likely will be required to present expert testimony to prove its case.  However, that expert can rely on published studies and need not necessarily conduct a new study of the dangers of the hazard at that particular worksite. 

The Enforcement Policy does not expressly address whether OSHA will pursue GDC violations for chemicals for which OSHA has issued a PEL. As written, the new Policy does not prohibit a GDC citation in those circumstances.  The Enforcement Policy states that it applies when an air contaminant “is not covered” by an OSHA PEL, and does not include language restricting the policy to “those cases where an OSHA PEL has not been issued,” as the old version of the policy had stated.  (Emphases added.)  In addition, the new Policy refers Regional Administrators to the Field Operations Manual (“FOM”) for further guidance in preparing a GDC citation.  The current FOM expressly states that a GDC citation may be issued when there are exposures above an OEL but below an OSHA PEL.  FOM (8/02/2016) § III.D.2, Example 4‑25.

Therefore, under the Enforcement Policy, OSHA may assert that even employers with worksite air contaminant exposures below an OSHA PEL, as well as those using chemicals that do not have an issued OSHA PEL, are subject to a GDC citation, if there are unprotected worksite exposures above a recognized OEL.

CATEGORIES: Air, OSHA, Toxic Tort

PEOPLE: Gabrielle Sigel

December 17, 2018 New OSHA Enforcement Policy Under General Duty Clause for Worksite Exposure to Air Contaminants

 By Gabrielle Sigel

OSHA’s Directorate of Enforcement Programs recently issued an enforcement memorandum to all OSHA Regional Administrators providing a new “Enforcement Policy for Respiratory Hazards Not Covered by OSHA Permissible Exposure Limits” (“Enforcement Policy”). OSHA’s 2003 policy on the same topic is now superseded and archived.

The Enforcement Policy explains how and when OSHA will cite an employer for respiratory hazards from an air contaminant under the OSH Act’s General Duty Clause (“GDC”). The GDC is the statutory requirement that an employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  29 U.S.C. § 654(a)(1).  By regulation, OSHA has stated that “An employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirement of section 5(a)(1) of the Act, but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.” 29 CFR 1910.5(f).  There is an open question as to whether and when an employer is in violation of the law if either (a) OSHA has not set a regulatory exposure limit for a particular chemical; or (b) exposures are below OSHA’s regulatory Permissible Exposure Limit (“PEL”), but above another organization’s recommended occupational exposure limit (“OEL”) for the same chemical.  An OEL can be issued by, for example, an industry group, U.S. EPA, the National Institute for Occupational Safety and Health, or the American Conference of Governmental Industrial Hygienists.

OSHA’s new Enforcement Policy states that a GDC violation for airborne chemical exposures cannot be alleged unless OSHA can meet the 4-element standard of proof imposed by the courts for any GDC violation:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  2. The hazard was recognized;
  3. The hazard was causing or was likely to cause death or serious physical harm; and,
  4. There was a feasible and useful method to correct the hazard.

The Enforcement Policy provides that exceeding an OEL is not sufficient evidence on its own to support a GDC citation; all four of the above GDC proof elements must be met. However, even if all four elements cannot be proven, OSHA still can issue a Hazard Alert Letter (“HAL”) if exposures are above an OEL.  The Enforcement Policy includes a sample HAL. 

The Enforcement Policy also provides examples of the evidence that OSHA needs to prove a GDC violation for airborne exposures above an OEL. With respect to the first element—that employees were exposed—OSHA can rely on air sampling and other workplace-based evidence, including witness statements.  However, in contrast to many OSHA requirements when there is a regulatory PEL, in GDC cases, OSHA will consider whether the exposed employee is wearing respiratory protection.  Unlike the 2003 version of the policy, the 2018 Enforcement Policy specifically states that “if the exposed employees were wearing appropriate respiratory protection with no deficiencies in the respirator program, then the likelihood that OSHA could establish a respiratory hazard covered by the general duty clause would be low.”  However, OSHA does not preclude a GDC citation if respirators are used; the Enforcement Policy provides the exception for a respirator program only if that program has “no deficiencies.”

With respect to element #2—hazard recognition—the Enforcement Policy states that this element is met if: (a) there is direct evidence of employer knowledge; or (b) if the employer should have known of the hazard. Direct evidence can include prior receipt of a HAL or information regarding the hazard in a Safety Data Sheet prepared by a chemical’s manufacturer.  Indirect evidence can include an OEL issued by an industry association, professional organization, or a non-OSHA government agency.  With respect to GDC proof elements #3 and #4, OSHA states it likely will be required to present expert testimony to prove its case.  However, that expert can rely on published studies and need not necessarily conduct a new study of the dangers of the hazard at that particular worksite. 

The Enforcement Policy does not expressly address whether OSHA will pursue GDC violations for chemicals for which OSHA has issued a PEL. As written, the new Policy does not prohibit a GDC citation in those circumstances.  The Enforcement Policy states that it applies when an air contaminant “is not covered” by an OSHA PEL, and does not include language restricting the policy to “those cases where an OSHA PEL has not been issued,” as the old version of the policy had stated.  (Emphases added.)  In addition, the new Policy refers Regional Administrators to the Field Operations Manual (“FOM”) for further guidance in preparing a GDC citation.  The current FOM expressly states that a GDC citation may be issued when there are exposures above an OEL but below an OSHA PEL.  FOM (8/02/2016) § III.D.2, Example 4‑25.

Therefore, under the Enforcement Policy, OSHA may assert that even employers with worksite air contaminant exposures below an OSHA PEL, as well as those using chemicals that do not have an issued OSHA PEL, are subject to a GDC citation, if there are unprotected worksite exposures above a recognized OEL.

CATEGORIES: Air, OSHA, Toxic Tort

PEOPLE: Gabrielle Sigel

May 18, 2018 CRA Survives Constitutional Challenge—Are More Rules and Guidance at Risk of Disapproval?

Steven M. Siros Photo By Steven M. Siros 

A recent decision by the U.S. District Court for the District of Alaska rejected efforts by the Center for Biological Diversity (the “Center”) to challenge the constitutionality of the Congressional Review Act (CRA).  The CRA, which was originally enacted in 1996, allows for Congressional disapproval of rules promulgated by administrative agencies under limited circumstances.  Historically, the CRA had been used sporadically, but the current Congress has relied on the CRA on at least 16 occasions to roll back Obama administration regulations, and more CRA resolutions may be on the horizon. 

In Center for Biological Diversity v. Zinke, the Center challenged the use of the CRA to invalidate a Department of Interior (DOI) rule which limited certain hunting and fishing practices on Alaskan National Wildlife Refuges.  More specifically, the Center argued that the CRA unconstitutionally allowed Congress to alter DOI’s authority without using bicameralism and presentment to amend the underlying statutes that gave DOI its authority over the National Wildlife Refuges in Alaska.  The Center also argued that the CRA’s prohibition on the issuance of a future rule in “substantially the same form” violates the separation of powers doctrine. 

The district court dismissed the Center’s lawsuit, finding that “Public Law 115-20 was passed by both the House and the Senate and submitted to the President for approval as required by the CRA—which was also passed by both houses of Congress and signed into law by the President.  Thus, the requirements of bicameralism and presentment are met and [the Center’s] separation of powers concerns fail to state a plausible claim for relief.”  The court further noted that “[a]ny injury caused by DOI’s inability to promulgate a substantially similar rule, in the absence of any assertion that DOI would otherwise do so, is too speculative to constitute a concrete or imminent injury and is insufficient to confer Article III standing.”  The court also noted that even if the Center could establish an “injury in fact,” the Center had not adequately alleged how invalidating the CRA would redress the Center’s alleged injuries. 

Although the CRA remains in full force and effect, one might wonder whether it will retreat back into the shadows at least until the next administration.  The conventional view had been that Congress only has 60 days after a rule takes effect to pass a CRA resolution disapproving it.  However, lawmakers in Congress are advancing a more novel interpretation of the CRA to review (and potentially disapprove) older rules (and guidance).  If a rule or guidance was not  officially “submitted” to Congress for review (and many apparently have not officially been submitted), then the current administration could now submit them for review which would restart the 60-day clock.  For example, in April, the Senate voted to disapprove a 2013 Consumer Financial Protection Bureau guidance on auto loan financing.  The House has not yet taken action on the resolution.  If, however, the guidance were to be disapproved under the CRA, then the effect of that disapproval is that the agency will be unable to enact a “substantially similar” rule or guidance.  That is really the true power of the CRA, and word is that members of Congress are reviewing older rules and guidance that could be the target of a CRA resolution.  Whether the CRA remains a powerful tool this far into the Trump administration remains to be seen, but one can expect that the Center’s constitutional challenge to the CRA is unlikely to be the last. 

CATEGORIES: Climate Change, Consumer Law and Environment, Sustainability, Toxic Tort

PEOPLE: Steven R. Englund, Steven M. Siros

May 18, 2018 CRA Survives Constitutional Challenge—Are More Rules and Guidance at Risk of Disapproval?

Siros By Steven M. Siros 

A recent decision by the U.S. District Court for the District of Alaska rejected efforts by the Center for Biological Diversity (the “Center”) to challenge the constitutionality of the Congressional Review Act (CRA).  The CRA, which was originally enacted in 1996, allows for Congressional disapproval of rules promulgated by administrative agencies under limited circumstances.  Historically, the CRA had been used sporadically, but the current Congress has relied on the CRA on at least 16 occasions to roll back Obama administration regulations, and more CRA resolutions may be on the horizon. 

In Center for Biological Diversity v. Zinke, the Center challenged the use of the CRA to invalidate a Department of Interior (DOI) rule which limited certain hunting and fishing practices on Alaskan National Wildlife Refuges.  More specifically, the Center argued that the CRA unconstitutionally allowed Congress to alter DOI’s authority without using bicameralism and presentment to amend the underlying statutes that gave DOI its authority over the National Wildlife Refuges in Alaska.  The Center also argued that the CRA’s prohibition on the issuance of a future rule in “substantially the same form” violates the separation of powers doctrine. 

The district court dismissed the Center’s lawsuit, finding that “Public Law 115-20 was passed by both the House and the Senate and submitted to the President for approval as required by the CRA—which was also passed by both houses of Congress and signed into law by the President.  Thus, the requirements of bicameralism and presentment are met and [the Center’s] separation of powers concerns fail to state a plausible claim for relief.”  The court further noted that “[a]ny injury caused by DOI’s inability to promulgate a substantially similar rule, in the absence of any assertion that DOI would otherwise do so, is too speculative to constitute a concrete or imminent injury and is insufficient to confer Article III standing.”  The court also noted that even if the Center could establish an “injury in fact,” the Center had not adequately alleged how invalidating the CRA would redress the Center’s alleged injuries. 

Although the CRA remains in full force and effect, one might wonder whether it will retreat back into the shadows at least until the next administration.  The conventional view had been that Congress only has 60 days after a rule takes effect to pass a CRA resolution disapproving it.  However, lawmakers in Congress are advancing a more novel interpretation of the CRA to review (and potentially disapprove) older rules (and guidance).  If a rule or guidance was not  officially “submitted” to Congress for review (and many apparently have not officially been submitted), then the current administration could now submit them for review which would restart the 60-day clock.  For example, in April, the Senate voted to disapprove a 2013 Consumer Financial Protection Bureau guidance on auto loan financing.  The House has not yet taken action on the resolution.  If, however, the guidance were to be disapproved under the CRA, then the effect of that disapproval is that the agency will be unable to enact a “substantially similar” rule or guidance.  That is really the true power of the CRA, and word is that members of Congress are reviewing older rules and guidance that could be the target of a CRA resolution.  Whether the CRA remains a powerful tool this far into the Trump administration remains to be seen, but one can expect that the Center’s constitutional challenge to the CRA is unlikely to be the last. 

CATEGORIES: Climate Change, Consumer Law and Environment, Sustainability, Toxic Tort

PEOPLE: Steven R. Englund, Steven M. Siros