Article Title: Update on Environmental Law

• Publication year: 2001
• Pages: 10-11
• Citation: Vol. 2001 No. 10 Pg. 10-11

Utah Bar Journal Volume 10.

10-11 (2001). Article Title: Update on Environmental Law

October, 2001

Article Title: Update on Environmental Law

Author: Richard K. Rathbun1

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Utah Law Developments

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With the advent of the new Bush administration and the end of the U.S. Supreme Court term, there is much to report in environmental law. The President has already faced such difficult issues as carbon dioxide emissions, arsenic levels in drinking water, global warming and the Kyoto Protocol. His administration is also reviewing EPA's enforcement initiative against utilities under the Clean Air Act's new source review program, and has proposed the devolution of some of EPA's science and enforcement functions to the states, to be assisted by new federal grants

The Supreme Court decided two Clean Water Act cases, in one case rejecting an attempt to extend regulatory jurisdiction to waters whose sole interstate connection was the occasional presence of migratory birds, and in the other holding that a developer's "takings" claim was not barred by virtue of the fact that he bought the property after restrictive wetlands regulations were enacted. Under the Clean Air Act, the court also found no improper delegation of legislative power in EPA's establishment of federal air standards for ozone and particulate matter, and rejected a claim that costs to the regulated community should have been considered by EPA in setting those standards. Astounding court-watchers, the latter opinion by Justice Scalia was a unanimous decision, an alignment some insisted would never happen in these fractious days

Air Quality

In Whitman v. American Trucking Associations,121 S. Ct. 903 (2001), the court held that the Clean Air Act's requirements for EPA to establish federal air standards at levels "requisite to protect public health" were within the constitutional scope of discretion that Congress can delegate to a federal agency, rejecting the Court of Appeals' finding of unconstitutional delegation because the statute had provided "no intelligible principle" to guide the agency. The court also ruled that the Act "unambiguously bars" EPA from considering the potential costs to regulated entities when setting national ambient air quality standards.

Since the Clean Air Act requires that challenges to emission or performance standards be filed in the U.S. Court of Appeals for the District of Columbia, that court has been busy as well. National Lime Association v. EPA, 2233 F.3d 625 (D.C. Cir. 2000) involved a challenge to a rule covering hazardous air pollutant ("HAP") emissions from Portland cement manufacturers. The court held that EPA's failure to set maximum achievable control technology ("MACT") standards for mercury, hydrogen chloride and total hydrocarbons was contrary to the Clean Air Act, and remanded to the agency for further proceedings. In Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000), the court upheld EPA regulations under the Clean Air Act concerning tribal authority, specifically those which: (1) asserted jurisdiction over fee lands owned by non-members within a reservation's boundary; (2) included tribal trust lands within the definition of "reservation;" and (3) allowed tribes to issue Tribal Implementation Plans and redesignations under the prevention of significant deterioration program to both lands within the reservations and to non-reservation areas over which a tribe has demonstrated inherent jurisdiction (e.g., allotted lands and dependent Indian communities). And in American Petroleum Institute v. EPA, 198 F.3d 275 (D.C. Cir. 2000), the court held that it was improper for EPA to allow certain areas of the country (ozone standard sub-marginal non-attainment and non-attainment because of inadequate data) to opt-in to the reformulated gasoline program.

Two other recent cases raise an issue best introduced here by illustration. A statute is passed with general language, followed by regulations of broad language, interpreted by a guidance document with expansive language, enforced under directive of a policy memo with firm, assertive language, followed by a second policy memo of cautionary language, carried then through a series of enforcement actions, judicial and administrative, each with an agency "official position," creating in turn a body of letters, pleadings, administrative and judicial orders and appellate opinions, all constituting a minefield of contradictory language which compels us back, once again, to the original statute, where each of us, we insist -as befits our client's interests -finds clarity and comfort.

Such use of guidance or policy documents as the basis for enforcement actions is a sore subject with the regulated community, which finds itself asking the question: what language is authoritative? Thus, in Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000), the court held invalid EPA's "Periodic Monitoring Guidance" document because it effectively changed existing monitoring rules without complying with rule-making procedures. The court rejected EPA's boilerplate disclaimer that the guidance was not intended to create legal rights, noting that the guidance gave states their "marching orders" and that "EPA expects the states to fall in line." And closer to home, in Public Service Co. of Colorado v. EPA, 225 F.3d 1144 (10th Cir. 2000), a power company brought an appeal to challenge two EPA letters opining that a proposed new power plant and an existing plant would together constitute a single major source of air emissions for permitting purposes. The appeal was dismissed because the letters did not constitute final agency action from which an appeal could be taken (they were written by EPA and not the ultimate state permitting authority). Still, given the complex nature of environmental regulatory schemes -not limited to air quality, of course -the attempted enforcement of policy or guidance documents is an issue which all practitioners, on either side of the enforcement "aisle," should be wary of.(fn2)

Bankruptcy

Several recent bankruptcy cases involved environmental issues worth noting. In Southern Pacific Transportation Co. v Voluntary Purchasing Groups, Inc., 252 B.R. 373 (E.D. Tex. 2000), the proposed reorganization plan provided that the bankruptcy court would have authority to approve any settlements, between debtor and State, of CERCLA liability issues for several contaminated sites. Upon objection by Southern Pacific, the district court ordered withdrawal of the case to district court under 28 U.S.C. 157(d). The court held that CERCLA was the type of law covered by the mandatory withdrawal language in the statute, i.e., that...