In 2010, the EPA approved two permits for Shell to begin offshore exploratory drilling in the Arctic’s Chukchi and Beaufort Seas with the drillship Discoverer. REDOIL, a group representing the rights of the region’s indigenous peoples, contested the permits and argued that they violated the Clean Air Act by failing to require best available control […]
The Decker Forestry Pollution Case: Constitutional Risks When Courts Use Auer Deference to Bypass Regulatory Protections
In Decker v. Northwest Environmental Defense Center, the Supreme Court upheld the EPA’s interpretation of the agency’s own regulation regarding exemption of channeled stormwater discharges from National Pollutant Discharge Elimination System permit requirements under the Clean Water Act. The Court deferred to the EPA’s interpretation under the Auer doctrine, which dictates that an administrative agency’s […]
Pro-Rata Apportionment in “Long-Tail” Contamination Cases: Will Presumed Efficiencies Undercut Environmental Cleanups?
Environmental contamination often causes injuries that occur over long periods of time. These “long-tail” injuries, which tend to span periods during which a liable party was covered by multiple insurers, do not map neatly onto standard indemnification insurance policies. As a result, liable parties and their insurers frequently engage in protracted litigation to minimize the […]
American Trucking v. Port of Los Angeles: Is the Castle Doctrine a Ticking Time Bomb, Potentially Eliminating Ports’ Control of Cargo Trucking?
As the Port of Los Angeles and the shipping industry continue to expand, states struggle to regulate the heavy trucking businesses that support the shipping companies. In American Trucking Assn’s, Inc. v. City of Los Angeles, the Supreme Court struck down as preempted by the Federal Aviation Administration Authorization Act of 1994 parts of a […]
A Dubious Exercise of Case Consolidation: Center For Biological Diversity v. BP America Production Co.
The explosion of the Deepwater Horizon and the dispersal of millions of gallons of oil into the Gulf of Mexico in 2010 generated a mass of litigation. To organize and manage this complex mass, the U.S. District Court for the Eastern District of Louisiana created “pleading bundles,” which consolidated similar cases, and provided that each […]
In Center for Biological Diversity v. Salazar, the U.S. Court of Appeals for the Ninth Circuit held that the Bureau of Land Management (BLM) was not required to approve a new plan of operations before allowing a uranium mine to resume production after nearly two decades of cessation. The court reasoned that the reopening of […]
The Ninth Circuit Constrains Non-Enforceable Public-Private Endangered Species Conservation Agreements
In 2009, Ruby Pipeline, L.L.C. proposed to build a 678-mile pipeline from Wyoming to Oregon that would cross through the critical habitat of endangered species. The Federal Energy Regulatory Commission and the Fish and Wildlife Service worked with Ruby to design a Conservation Action Plan consisting of voluntary measures aimed at mitigating the effects of […]
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) requires that all potentially responsible parties, including current and former land owners, contribute to the costs of cleanup of contaminated property. CERCLA includes a provision that grants bona fide prospective purchaser (BFPP) status and exemption from liability to land owners if liability under CERCLA is based […]
This Comment analyzes the U.S. Court of Appeals for the Ninth Circuit’s ruling in Ecological Rights Foundation v. Pacific Gas & Electric Co. The plaintiff alleged that two utility companies operated utility poles that discharged wood preservative in violation of the Clean Water Act and the Resource Conservation and Recovery Act (RCRA). The plaintiff’s RCRA […]
Plain Meaning or Pragmatics? Differing Interpretations of the Clean Water Act’s Jurisdictional Provisions
There is significant discord among circuit courts over whether a broad or narrow construction of the Clean Water Act’s jurisdictional provisions is appropriate in determining when circuit courts should have direct jurisdiction to review petitions challenging regulations. The broad interpretation of these provisions emphasizes the practicality of direct circuit court review of a wider range […]