Introduction to Environmental Law by Karl Moor

01 March 2007

Karl Moor, vice-president and associate general counsel, Southern Company 

Environmental law today can be moved as much by the media and public opinion as it can by a decision from the US Supreme Court. Practitioners who understand this reality and who can guide their client through all these fora are the ones most likely to find a workable solution to an environmental problem that benefits not only the client, but the public as well.

Clean Air Act

Nowhere in environmental law today are these multiple facets more evident than in practice under the Clean Air Act. For starters, the Supreme Court’s 2006/2007 term will bring decisions in two major Clean Air Act cases. In the case of Environmental Defense v Duke Energy Corporation, the Court is faced with questions about the US Environmental Protection Agency’s (EPA) enforcement of the Clean Air Act’s New Source Review (NSR) programme. The Court is reviewing a decision of the Fourth Circuit Court of Appeals that threw out one of many enforcement cases brought by EPA as part of its utility enforcement initiative, and thus the decision could have a broad impact on other cases pending in the lower federal courts. The case not only involves the proper substantive interpretation of aspects of the NSR programme, it also raises fundamental questions about agency practice and interpretation, the resolution of which could be felt beyond NSR. The case also involves a heavy dose of federalism that could shape the extent to which States can take the lead in environmental enforcement within their own jurisdictions. Beyond the Supreme Court, there are legislative and administrative proposals to fix the ailing NSR programme.

In another case, Commonwealth of Massachusetts v EPA, the Supreme Court is presented with the question of whether the EPA can and must regulate carbon dioxide as a pollutant under the Clean Air Act in an attempt to combat global warming. The Court is reviewing a decision of the DC Circuit Court of Appeals that held the EPA is not required to regulate greenhouse gases as pollutants. This case is just one limited aspect of the ongoing policy debate and discussion on climate change.

Climate Change

It doesn’t take an environmental attorney to know that climate change has moved to the front and centre of the environmental debate today. Legislative proposals to regulate the emission of greenhouse gases – in particular, carbon dioxide – have sprung up like weeds in Congress. Many states have taken action already and proposed their own legislation intended to address climate change. And climate change is on the cover of newspapers and magazines, on the nightly news, and even in the movie theatre.

The issue is a complex one. In fact, climate change is in many ways the most complex and difficult question that has arisen in modern environmental law. This is so because made-man carbon dioxide emissions – the claimed cause of climate change – are a fundamental reality of our industrialised society. Our cars produce carbon dioxide; our factories produce carbon dioxide; our power plants produce carbon dioxide. Decades of economic and societal development have been built on the use of fossil fuels. If we are to change the way we fuel our society, we must do so thoughtfully, not rashly, and with an understanding that only a long-term global solution makes sense. A regulatory solution is not really the answer – governments must foster and encourage the development of technologies that reduce or eliminate carbon dioxide emissions. This will be one major component of the climate change discussion in 2007.

Clean Water Act

The Supreme Court has also recently waded into the intricacies of the regulation of pollutant discharges under the Clean Water Act. In 2006, in Rapanos v United States, the Court took up the definition of the phrase “navigable water”. That phrase delineates the jurisdictional reach of the Clean Water Act and controls when permits must be obtained for point source discharges and dredge-and- fill activities. The court issued a split decision on the meaning of that phrase, with four justices arguing in favour of a more restrictive reading and four others for a more expansive one. Justice Kennedy refused to join either opinion. In response, the lower federal courts have likewise been split on which test should be applied, which has led to uncertainty and apprehension among practitioners. The confusion has been a boon for law reviews and journals. The regulated community is currently awaiting guidance from the Corps and EPA regarding the scope of the CWA post-Rapanos. If it is not forthcoming, the Supreme Court may ultimately have to wade back in and revisit this issue in an attempt to clarify the scope of the Clean Water Act.

Endangered Species Act

In 1979, the Endangered Species Act brought the operation of a multimillion dollar federal hydropower dam to a standstill, in order to protect a population of imperiled snail darters. Today, the statute has the same teeth, but federal agencies, environmentalists, and landowners are working together under the statute to find creative and constructive ways to protect species without bringing development to a halt. Cooperation, flexibility, and voluntary conservation are the present and future of endangered species protection.

Among the tools that are being used today are ‘landowner friendly’ agreements, including Safe Harbour Agreements and Candidate Conservation Agreements that encourage landowners to take active roles to enhance the survival of listed or about-to-belisted species. The goal is to prevent the need to list a species under the statute or to recover the species so it can be removed from the list.

The year 2007 will see the culmination of several success stories. Due to habitat protection and management actions initiated under the Endangered Species Act, the bald eagle has shown dramatic recovery over the last twenty years. In response, the US Fish and Wildlife Service has proposed to remove the bald eagle’s threatened designation. The grey wolf is another success story. Once considered to be on the brink of extinction in the lower 48 states, the grey wolf in the western Great Lakes area has been removed from the list.

Hazardous Site Clean-up

Recently, practice under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) has focused on application of Supreme Court’s 2005 decision in Cooper Industries, Inc v Availl Services Inc. In that case, the Court held that the specific language of CERCLA section 113(f)(1) did not grant potentially responsible parties (PRPs) the ability to bring contribution actions against other PRPs until they themselves have faced an enforcement action. However, the Court refused to address other sections of CERCLA as they relate to contribution from PRPs and limited their holding to section 113(f)(1). This has led to a split in the circuits in their attempt to apply the holding of Availl to other contribution provisions of CERCLA, such as section 107(a), and how they relate to PRPs. Furthermore, many groups claim the holding in Availl has led to a public policy that discourages voluntary cleanup and encourages litigation-intensive methods of site management.

In 2007, the issue of recovery of costs under CERCLA is once again on the Supreme Court’s docket in United States v Atlantic Research Corp, a case out of the Eighth Circuit Court of Appeals. The Court may decide whether PRPs can seek recovery under section 107(a) from other liable parties, therefore solving the conundrum created by Availl. Many commentators believe that clarifying this issue will facilitate remediation of the US’s many brownfield sites.

Conclusion

Environmental policy in the United States not only continues to evolve and develop, it continues to improve. In order to keep pace, environmental practitioners are required to fully understand the blend of regulation, jurisprudence and legislation that makes up environmental law in the US. Continuing developments in the Clean Water Act, Clean Air Act, global warming, and other environmental arenas will require continued perseverance by practitioners in order for them to provide the best advice to their clients.

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