Environmental Law - W. Scott Laseter

• Publication year: 1995

Environmental Lawby W. Scott Laseter^*

I. Introduction and Scope

This Article is the third survey of environmental case law in the United States Court of Appeals for the Eleventh Circuit, and covers the period of January 1993 to December 1994.¹ The survey comes at a time when the nation's political climate has turned dramatically to the right with the majority of both houses of Congress now being held by the Republican Party. Over the last two decades, it sometimes appeared as if Congress was pushing a reluctant judiciary uphill towards enforcing more stringent environmental laws. In the months ahead, however, Congress may instead be seen pumping the brakes to slow down what many view as virtual runaway environmental programs. In the first few weeks of the 104th Congress, members have proposed major revisions to several cornerstone environmental statutes including the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)² and the Clean Water Act ("CWA"),³ and have proposed to repeal the 1990 Clean Air Act Amendments.⁴

If history is any gauge, voices from the center and left will likely considerably water-down this ambitious agenda as the realities of the complex nature of environmental problems and the myriad of special interests come into focus. Nonetheless, the momentum for change in the legislative and administrative branches may well re-open questions of environmental law which now appear settled. Indeed, even CERCLA's notorious scheme of retroactive joint and several liability, which has perhaps best epitomized the force of environmental law, has been opened for debate in Congress.

Despite the possibility of sweeping changes in certain programs (or perhaps because of it), this Article surveys significant environmental decisions by the Eleventh Circuit and selected decisions from the associated district courts.⁵ In keeping with past formats, the Article begins with the National Environmental Policy Act ("NEPA"),⁶ followed by the CWA⁷ and CERCLA.⁸ Also included is a section on the Resource Conservation and Recovery Act ("RCRA"),⁹ which, although not new, received significant treatment by the Eleventh Circuit for arguably the first time during the survey period.¹⁰ With the exception of the section on RCRA, the overview of the basic statutory scheme contained in earlier Surveys is omitted but can be obtained from those articles.¹¹

II. Discussion of Cases

A. The National Environmental Policy Act¹²

1. Major Federal Action. In United States v. Southern Florida Water Management District¹³ the Eleventh Circuit shed further light upon what constitutes a "major federal action" sufficient to trigger NEPA's obligation that the agency access whether the environmental impacts are significant. The case arose from a long-standing dispute concerning water pollution in the Everglades region of Florida caused by extensive agricultural activities.¹⁴ The United States, as the owner of both the Everglades National Park and the Loxahatchee National Wildlife Refuge, sought to compel the Florida Department of Environmental Regulation ("FDER") and the South Florida Water Management District ("SFWMD") to apply more stringent controls on excessive nutrient loading caused by run-off from agricultural activities to the north of the Everglades. In settling the case, the federal government entered into a settlement agreement with FDER and the SFWMD which the United States District Court for the Southern District of Florida converted to a consent decree.¹⁵

The consent decree primarily provided interim and long-term phosphorous concentration limits for the park and refuge and delineated specific remedial programs designed to achieve those limits.¹⁶ At the urging of the cities of Belle Grande and Clewiston, Florida and several agricultural organizations, however, the district court held the negotiation and implementation of the Settlement Agreement constituted a "major federal action" requiring an environmental impact statement ("EIS") pursuant to NEPA.¹⁷

Reversing the district court, the Eleventh Circuit drew a distinction between government activities which merely lay ground work for future decision making and those which will themselves result in governmental action.¹⁸ The Eleventh Circuit found the primary thrust of the consent decree was to require state agencies to follow state law.¹⁹ The mere possibility that the consent decree might result in the future in greater federal involvement in the decision making process, either through funding or through more direct actions, was not sufficient to convert the federal government's negotiation of the consent decree into a major federal action within the meaning of NEPA.²⁰

B. The Clean Water Act²¹

1. Defining the Waters of United States. The Eleventh Circuit's decision in Mills v. United States²² may prove to be as significant for what it expressly did not decide as for the decision's actual holding. The case involved an appeal of the sentence from a criminal conviction arising out of the unlawful placing of fill material into the "waters of the United States"²³ in violation of the CWA.²⁴ The convictions resulted from the filling of a portion of a residential lot to build a driveway located adjacent to East Bay, which empties to the Gulf of Mexico on Florida's west coast.²⁵ In appealing their sentences, the defendants raised the issue of whether the Army Corps of Engineers ("Corps") had authority to regulate the discharge of fill material into wetlands which were not navigable waters but, rather, were merely adjacent to such navigable waters.²⁶ The Eleventh Circuit made short work of this defense citing the Supreme Court's decision in United States v. Riverside Bay view Homes, Inc.²⁷ which held that the Corps' interpretation of waters of the United States to include wetlands adjacent to navigable waters is reasonable and in keeping with the expressed intent of Congress.²⁸

However, in a footnote that may be a beacon for future litigants, the Eleventh Circuit pointed out, "[t]he question of whether the corps' authority properly extends to regulating the discharge of fill material onto wetlands not adjacent to bodies of open water was not before the Supreme Court [in Riverside Bayview Homes] nor is it before us now."²⁹ Thus, while the decision itself is unremarkable, it could be read as an limitation to future litigants travelling under slightly different facts.

2. Statute of Limitations. In United States v. Windward Properties, Inc.³⁰ the United States District Court for the Northern District of Georgia decided another potentially significant decision concerning section 404 enforcement cases. The case involved the alleged placement of fill into three creeks as part of a large development located north of Atlanta near Alpharetta, Georgia.³¹ The construction firm had completed the fill activities by March 1982, but the government did not file suit until February 1991.³² Consequently, the defendant sought summary judgment on statute of limitations grounds.³³

The parties agreed that the five-year statute of limitations set forth in 28 U.S.C. Sec. 2462 applied to the government's claim for fines or penalties.³⁴ The government, however, asserted section 2462 did not apply to its claim for injunctive relief.³⁵ Further, the government argued that the statute of limitations begins to run when the government actually learns of the violation, while the defendant argued that the period commenced at the time of violation.³⁶

On the question of whether the statute of limitations applied to the government's claim for injunctive relief, the district court held, "when legal and equitable relief are available concurrently (i.e., when an action at law or equity could be brought on the same facts), 'equity will withhold its relief. . . where the applicable statute of limitations would bar the concurrent legal remedy.'"³⁷ Therefore, if the government's claim for fines or penalties was barred, the claim for injunctive relief would likewise be barred.

Considering when the limitations period begins to run, the district court rejected both the government's "actual knowledge" accrual time and the defendant's date of violation trigger. Instead, the court opted for an "objective discovery rule" under which the statutory period commences when the government either actually discovers or, '"through the use of reasonable diligence should have discovered' the violation."³⁸ Deciding that a genuine issue of material fact remained on when the government should have discovered the offense, the court denied defendant's summary judgment motion.³⁹

C. The Comprehensive Environmental Response, Compensation and Liability Act⁴⁰

1. Persons Liable Under the Act.

a. Operator Liability. The last edition of the Environmental Law Survey reported the United States District Court for the Middle District of Florida's decision in Jacksonville Electric Authority v. Eppinger & Russell Co.,⁴¹ which held on summary judgment that a university (Tufts) which had owned most or all of the stock of a corporation in the wood treatment business from 1925 to 1942 was not liable under CERCLA as an "operator."⁴² Affirming that decision, the Eleventh Circuit adopted a two-pronged test under which a person may be liable as an operator either because: 1) it was actually involved in the facility's day-to-day business efforts, or 2) because it was actively involved in decisions related to the disposal of hazardous substances.⁴³

The determination of whether a person qualifies as an operator is extremely fact-sensitive. Therefore, a close examination of the evidence the plaintiff presented to the trial court in its losing effort to survive summary judgment is important:

(1) Tufts owned all or almost all the stock in Eppinger; (2) Tufts dictated the terms of employment of Eppinger's President (Chadwick) and other executive officers; (3) Tufts' creation of a profit sharing plan for the Eppinger officers; (4) Eppinger's...