Environmental Law - W. Scott Laseter and Julie v. Mayfield

• Publication year: 1998

Environmental Lawby W. Scott Laseter^* and

Julie V. Mayfield^**

Perhaps in recognition of the growing prevalence of environmental issues in the day-to-day practice of law, this Article departs from the two-year survey period of its predecessors¹ by covering only decisions handed down during 1997. Nonetheless, the survey period saw several interesting cases reach the Eleventh Circuit, including the appeal of a sua sponte assault on the constitutionality and retroactive application of the Comprehensive Environmental Response, Compensation, and Liability Act² and an effort to use the Migratory Bird Treaty Act to block timber harvest in a national forest.³ Further, the survey period saw the continued emphasis on citizens' suits, the use of the Environmental Protection Agency's enforcement power to repair wetlands, and the use of criminal provisions to enforce federal environmental law.⁴

In terms of organization, this Article begins with a discussion of the decision under the Comprehensive Environmental Response, Compensa- tion, and Liability Act ("CERCLA"),⁵ then reviews three cases decided under the Clean Water Act ("CWA"),⁶ and concludes with a discussion of the Eleventh Circuit's first opinion on the Migratory Bird Treaty Act ("MBTA").⁷

I. Comprehensive Environmental Response, Compensation, and Liability Act

Perhaps the most widely watched environmental decision by the Eleventh Circuit Court of Appeals during the survey period came in United States v. Olin Corp.⁸ in which the court considered a 1996 decision by the District Court for the Southern District of Alabama⁹ that declared CERCLA did not apply retroactively and, moreover, that the statute was an unconstitutional overextension of Congress's power under the Commerce Clause.¹⁰ In light of the otherwise unanimous view taken by courts across the country that CERCLA is both constitutional and retroactive,¹¹ the Eleventh Circuit surprised no one in reversing the trial court's decision.¹²

To review the facts of the case,¹³ Olin Corporation ("Olin") operated a chemical manufacturing plant in Alabama from 1951 to 1982 that contaminated both the soil and groundwater on the property.¹⁴ The site was listed on the National Priorities List in 1984, and investigatory work began at the site in 1993 to determine the extent of the contamination.¹⁵ Olin and the United States Environmental Protection Agency ("EPA") later entered into a consent decree that required Olin to remediate the property and pay all costs incurred by the government.¹⁶ The questions concerning CERCLA's constitutionality and retroactivity arose when the EPA and Olin submitted the proposed consent decree to the district court for approval and, instead of approving the consent decree as expected, Judge Hand, sua sponte, decided that "rather than signing the consent decree, [the court] must dismiss the action both because 1) Congress did not clearly express its intent that the liability provision of CERCLA be retroactive . . . and 2) the application of CERCLA, at least on the facts of this case, violates the Commerce Clause. . . ."¹⁷

In its decision, the court of appeals first addressed the threshold question of CERCLA's constitutionality.¹⁸ Like the district court, the Eleventh Circuit looked to the recent Supreme Court decision United States v. Lopez¹⁹ for guidance on Congress's Commerce Clause power. Both the appellate and district courts agreed that the starting point for the analysis set out in Lopez is consideration of the areas Congress is authorized to regulate under the Commerce Clause, which the Supreme Court described as:

First, Congress may regulate the use of the channels of interstate commerce .... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities .... Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce. . . i.e. those activities that substantially affect interstate commerce.²⁰

Both courts also agreed that CERCLA's enactment should be analyzed under the third category.²¹ Beyond this, however, the Lopez analysis by the two courts differs in two important ways.

With respect to the first of these differences, the district court asserted that Lopez requires Congress to include in the statute a '"jurisdictional element which would ensure, through case-by-case inquiry, that the [statute] in question affects interstate commerce.'"²² The court of appeals, however, read Lopez as simply holding that the inclusion of a jurisdictional element is one method Congress may use to ensure the statute is applied constitutionally.²³ When this jurisdictional element is absent, the court of appeals ruled that courts must then make an independent inquiry into whether the statute is a constitutional exercise of power under the Commerce Clause.²⁴

The Eleventh Circuit's more significant departure from the district court was in the performance of this independent analysis to determine if the ostensibly intrastate activity substantially affects interstate commerce.²⁵ The court of appeals read Lopez as permitting a looser connection between the intrastate activity and interstate commerce than the district court,²⁶ which read Lopez as requiring a direct connection between not just an intrastate activity, but an intrastate economic activity and interstate commerce.²⁷ The district court did not find this connection in the case at bar, and stated there was no "economic activity" being regulated because Olin's facility was closed long ago.²⁸ Additionally, the trial court stated, "[w]hile environmental degradation generally may have an effect on interstate commerce, it is not clear to this court that the degradation at issue in this case is necessarily 'economic activity' or that it has a 'substantial effect' on interstate commerce."²⁹ The court of appeals, however, took a less restrictive view of the types of activities targeted by the statute, describing the test as:

whether the statute regulates "activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affect [ ] interstate commerce." Lopez, [514] U.S. at [549], 115 S. Ct. at 1631. This determination turns on whether the statute constitutes "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut

unless the intrastate activity were regulated." Id. A court's focus, thus, cannot be excessively narrow . . . .³⁰

Applying this broader test to CERCLA, the Eleventh Circuit's first step was to identify the activity CERCLA purported to regulate.³¹ The court found it unnecessary to describe all the activities touched by the statute, and instead looked at the "narrowest, possible class" of activity regulated by the statute, which it identified as the on-site disposal of hazardous waste.³² The court's next step was to determine whether the on-site disposal of hazardous waste substantially affects interstate commerce. In this step, the court found ample evidence in CERCLA's legislative history that "the unregulated management of hazardous substances, even strictly within individual states, significantly impacts interstate commerce . . . ."³³ This evidence included data on agricultural losses and threats to the commercial fishing industry due to the improper disposal of hazardous substances as well as information on the significant costs to industry associated with the proper disposal of hazardous substances.³⁴ Thus, despite the appellee's argument that no evidence existed in this particular case to show that the on-site disposal of hazardous substances had any affect on interstate commerce, the Eleventh Circuit held CERCLA's application was constitutional because CERCLA's "regulation of intrastate, on-site waste disposal constitutes an appropriate element of Congress's broader scheme to protect interstate commerce and industries thereof from pollution."³⁵

In addition, although the appellate court ruled that it was not required to do so under Lopez, it also found that the on-site disposal of hazardous substances was, in fact, an "economic activity."³⁶ This finding was based on the theory that "to the extent a chemical plant can dispose of its waste on-site free of regulation, it would have a market advantage over chemical companies that lack on-site disposal options."³⁷ Consequently, under its own analysis as well as the district court's analysis, the court of appeals found that, "as applied in this case, CERCLA constitutes a permissible exercise of Congress's authority under the Commerce Clause."³⁸

Having rejected the district court's holding that CERCLA violated the Commerce Clause, the court of appeals turned to the lower court's decision that the statute should not apply retroactively. Again, both courts based their respective decisions on the same Supreme Court decision, Landgraf v. USI Film Products,³⁹ which explained the test used to determine whether a statute applies retroactively:

[w]hen a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.⁴⁰

Both the district and appellate courts divided the first task...