Edgcomb Law Group

On June  20, 2011, the United States Supreme Court held in an 8-0 decision that the Clean Air Act (Act) 42 U.S.C. §7401 et seq., and the Environmental Protection Agency action it authorizes, displace federal common law public nuisance claims against carbon-dioxide emitters. (American Electric Power Co., Inc., et al. v. Connecticut et al., 564 U.S. (2011) 13 (AEP)).

The underlying lawsuits considered by the AEP Court began well before EPA initiated efforts to regulate greenhouse gases under the Act.  In July 2004, two groups of plaintiffs filed separate complaints in the Southern District of New York against the same five defendants, each of which was a major electric power generator using fossil-fuels.  The first group of plaintiffs included eight States and New York City, the second joined three nonprofit land trusts.  The defendants/petitioners are four private power generating companies and the Tennessee Valley Authority, a federally owned corporation that operates fossil-fuel fired power plants in several states.  According to the complaints, the defendants “are the five largest emitters of carbon dioxide in the United States.”   The plaintiffs asserted that by contributing to global warming, the defendants’ carbon-dioxide emissions created a “substantial and unreasonable interference with public rights,” in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law.  Plaintiffs sought injunctive relief requiring each defendant “to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade.”  The District Court dismissed both suits as presenting non-justiciable political questions, but the Second Circuit reversed.  On the threshold questions, the Court of Appeals held that the suits were not barred by the political question doctrine, and that the plaintiffs had adequately alleged Article III standing.  Turning to the merits, the Second Circuit (1) held that all plaintiffs had stated a claim under the “federal common law of nuisance” by relying on a series of United States Supreme Court decisions holding that states may maintain suits to abate air and water pollution produced by other states or by out-of-state industry, and (2) determined that the Act did not “displace” federal common law.  At the time of the Second Circuit’s decision, EPA had not yet promulgated any rule regulating greenhouse gases, a fact the court thought dispositive.

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In United States v. U.S. Magnesium, No. 08-4185, the 10^th Circuit United States Court of Appeals addressed whether failure to comply with the notice and comment procedures of the Administrative Procedure Act (“APA”) precluded the United States Environmental Protection Agency (“EPA”) from changing its prior interpretation of an ambiguous 1991 regulation. 

The lawsuit underlying the appeal concerned five waste byproducts (“the five Complaint wastes”) generated by U.S. Magnesium through its magnesium production process.  The United States argued that U.S. Magnesium’s handling of these wastes did not comply with Subtitle C of the Resource Conservation and Recovery Act of 1976 (“RCRA”).  U.S. Magnesium responded that the EPA previously exempted the five wastes from Subtitle C’s requirements in a prior interpretation of its own regulation, and that the EPA was precluded from changing that interpretation without first complying with the notice and comment procedures of the Administrative Procedure Act (“APA”).  The district court agreed with U.S. Magnesium and granted partial summary judgment in its favor.  

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 In United States, et al. v. Aerojet General Corp, et al. (606 F.3d 1142; 2010 U.S. App. LEXIS 11131), the United States Court of Appeals for the Ninth Circuit held that non-settling Potentially Responsible Parties (“PRPs”)(referred to by the court as “Applicants”) have a right to intervene under Federal Rule of Civil Procedure 24(a)(2) and § 113(i) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”)(42 U.S.C.S. § 9613(i)) in a lawsuit brought by the United States Environmental Protection Agency (“EPA”) for the purpose of obtaining court approval of the lawsuit’s settlement.     

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2010 U.S. Dist. LEXIS 23395

On March 12, 2010, the United States District Court for the Eastern District of California in Hinds Investments, L.P. v. Team Enterprises, Inc., 2010 U.S. Dist. LEXIS 23395 (“Hinds”), dismissed a complaint asserting federal and state law claims against Kirrberg/Multimatic, the manufacturers of a dry cleaning machine, citing the “arranger” liability holding in Burlington Northern and Santa Fe Railway Co. v. United States, 129 S. Ct. 1870 (May 4, 2009).   In so doing, the Hinds court extended its earlier decision dismissing plaintiffs’ complaint against Cooper Industries, LLC, another dry cleaning equipment manufacturer. (See Hinds Investments, L.P. v. Team Enterprises, Inc., 2010 U.S. Dist. LEXIS 3233 *12-13 (noting that plaintiffs “ignore[d] that in Burlington Northern[], the U.S. Supreme Court held that a pesticide manufacturer was not an arranger despite its knowledge of pesticide spills during transfers and deliveries, and due to equipment failures”).)

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