Environmental Litigation
 Cost-Benefit Analysis and the Clean Water Act
PSEG Fossil LLC, et al. v. Riverkeeper, Inc., et al.No. 07-589 Utility Water Act Group v. Riverkeeper, Inc., et al.No. 07-597 Supreme Court of the United States NCLC urged the Supreme Court to review whether the Clean Water Act’s provisions dealing with cooling water intake structures preclude the use of cost-benefit analysis and restoration measures by the Environmental Protection Agency when it issues regulations pursuant to those provisions. In these companion cases, NCLC’s brief made clear that precluding cost-benefit analysis and restoration measures would have significant adverse effects beyond the utility industry. Amicus brief filed 12/3/07.
Federal Regulation of Wetlands under Clean Water Act
Simsbury-Avon Preservation Society v. Metacon Gun ClubNo. 07-0795cv U.S. Court of Appeals for the Second Circuit
NCLC filed a brief arguing that the Supreme Court's holding in Rapanos v. United States did not allow for federal regulation of wetlands which had a "speculative or insubstantial" connection with traditional navigable waters. In the Rapanos case, a four justice plurality, led by Justice Scalia, determined that only wetlands inseparable with traditional navigable waters could be subject to federal jurisdiction under the Clean Water Act. Justice Kennedy, in a concurring opinion, relied on earlier Supreme Court precedent and remanded to the lower court to apply a "significant nexus" test. In its brief, NCLC argued that Justice Steven's dissenting opinion in Rapanos (filed on behalf of four dissenting Justices) was irrelevant to any effort to discern the Supreme Court's Rapanos holding and that the wetlands in this case did not bear a substantial relationship to traditional navigable waters.
Amicus brief filed 8/7/07.
 Reimbursement for Voluntary Cleanup Costs under CERCLA
United States v. Atlantic ResearchNo. 06-562 Supreme Court of the United States
Agreeing with NCLC, the Supreme Court to affirmed the Eighth Circuit's conclusion that the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), otherwise known as the Superfund Act, permits a party which voluntarily cleans up a polluted site to recover the cleanup costs from the responsible parties. In the wake of the Supreme Courts decision in Cooper Industries v. Aviall, the lower courts had been divided as to whether such reimbursement is available. In its brief, NCLC argued that the statute's plain language and basic principles of fairness require that CERCLA be read to read a right of contribution for voluntary cleanup costs.
Amicus brief filed 4/5/07. Decision 6/11/07.
Extraterritorial Application of CERCLA
Teck Cominco Metals, Ltd. v. Pakootas, et al.No. 04-80091 United States Court of Appeals for the Ninth Circuit
NCLC urged the Supreme Court to grant review to consider whether the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) can be applied to the foreign conduct of a Canadian company if the alleged pollutants enter the environment of the United States. In its brief, NCLC clarified that this conclusion is not supported by statute, violates the presumption against extraterritorial application of U.S. law, interferes with traditional diplomatic mechanisms for resolving cross-border disputes, and exposes U.S. companies to potential retaliation.
Amicus letter in support of company's Petition to Appeal filed 1/7/05. Reply to amicus brief filed 1/28/05. Review granted 2/14/05. Amicus brief filed 6/9/05. Decision 7/3/06. Amicus brief filed in support of the petition for rehearing en banc 7/26/06. Decision 10/30/06. Amicus brief in support of cert. filed 5/2/07. Call for the Views of the Solicitor General 6/4/07.  View brief
Statute of Limitations under the Clean Air Act's Prevention of Significant Deterioration Permit ProgramNational Parks Conservation Association v. Tennessee Valley AuthorityNo. 05-6329 United States Court of Appeals for the Sixth Circuit NCLC urged the full Sixth Circuit to reverse an erroneous panel decision which failed to strictly apply the relevant statute of limitations bar to lawsuits under the Prevention of Significant Deterioration permit program. The Sixth Circuit panel held that the 5-year statute of limitations does not apply when a citizen brings suit for a company's failure to obtain a Clean Air Act permit, even if the construction occurred more than 5 years ago (in this case in 1988), because the permit holder had a continuing obligation not to violate the Act. In its brief, NCLC argued that the panel's ongoing obligation theory undermines the purposes underlying statutes of limitations and should be rejected.
Amicus brief in support of petition for rehearing en banc filed 4/16/07. View brief
Revised Particulate Matter Rule and 24-Hour Standard
American Lung Association et al. v. United States Environmental Protection AgencyNo. 06-1411 United States Court of Appeals for the District of Columbia Circuit NCLC petitioned the District of Columbia Circuit to intervene in a lawsuit by various environmentalist groups challenging the EPA's revised National Ambient Air Quality Standards for Particulate Matter (PM Rule). Apart from the 24 hour standard which NCLC independently challenged as impermissibly restrictive in light of the underlying science, the balance of the rule properly calibrates the competing interests at stake. Because a ruling in favor of the environmentalists would unnecessarily impose significant compliance costs and regulatory burdens on industry, NCLC will defend the revised PM Rule with the exception of the 24 hour standard. Amicus brief filed 1/16/07. View brief
 The National Environmental Policy Act and Terrorism
Pacific Gas & Electric Co. v. San Luis Obispo Mothers for Peace, et al.No. 06-466 Supreme Court of the United States
NCLC urged the Supreme Court to grant review of the Ninth Circuit's erroneous decision to require the Nuclear Regulatory Commission to assess the threat of terrorism while preparing its environmental review pursuant to the National Environmental Policy Act. In its brief, NCLC argued that NEPA imposes significant costs and delays of federally-funded or licensed projects and should be limited to truly environmental issues. In addition, NCLC argued that the business community and the government have collaborated to protect the nation's critical infrastructure and that introducing another layer of NEPA-based review will add little to, yet may undermine, that effort.
Amicus brief filed 12/15/06. Decision 1/16/07.
Revised Particulate Matter Rule and 24 Hour Standard Fine Particulate Matter
Petitioners Group v. EPA
United States Court of Appeals for the District of Columbia Circuit
NCLC, as a member of the Fine Particulate Matter Petitioners Group, filed a petition for review of EPA's revised particulate matter rule, which modified the 24 hour standard for ambient particulate matter.
Petition for review filed 12/18/06.
Regulation of Carbon Dioxide Emissions under the Clean Air Act
Commonwealth of Massachusetts v. United States Environmental Protection Agency
No. 05-1120 Supreme Court of the United States On April 2, 2007 the Supreme Court ruled 5-4 in Commonwealth of Massachusetts v. United States Environmental Protection Agency that the Clean Air Act (CAA) authorizes the EPA to regulate carbon dioxide and other greenhouse gas (GHG) emissions from new motor vehicles. In so doing, the court rejected arguments advanced by NCLC and other members of the CO2 litigation group, a coalition of industry associations which had intervened in support of EPA's position that Congress did not delegate to the agency the authority to regulate GHGs for climate change purposes, and even if it had, that EPA properly exercised its discretion not to regulate. As an intervenor, NCLC pointed out that neither the structure of the statute nor recent decisions of Congress support such a global regulatory program. Intervener's brief filed 10/24/06.Oral argument to be held 11/29/06. Decision 4/2/07.
Emission Restrictions and Clean Air ActEnvironmental Defense, et al. v. Duke Energy Corp., et al.No. 05-848 Supreme Court of the United States In Environmental Defense, et al. v. Duke Energy Corp., et al. the Supreme Court ruled April 2, 2007 against NCLC and upheld the Environmental Protection Agency's view that changes in power plants that may contribute to air pollution must be done with a permit if there is an annual increase in emissions. In its brief, NCLC argued that Duke Energy's plan to modernize its electric utility plants did not need to be submitted to the government pursuant to the Clean Air Act's New Source Review process (NSR) because no major modification of Duke Energy's permitted operations had occurred. At issue was whether hourly or annual emissions represent the baseline for determining whether NSR governs a particular plant modernization. NCLC argued that if the Supreme Court did not affirm the lower court's decision, hundreds of commonplace modernization activities would have to undergo NSR analysis even if their hourly emission rates are unchanged and stay below permit levels that already have been approved. Amicus brief filed 9/15/06. Oral argument to be held 11/1/06. Decision 4/2/07.
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Natural Resource Damages Claims under CERCLA
State of New Mexico, et al. v. General Electric Co., et al.
No. 04-2191
U.S. Court of Appeals for the Tenth Circuit
Finding New Mexico's state law-based enforcement action preempted by the regulatory mechanism created by the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Tenth Circuit rejected the state's claim for imposing double recovery on companies complying with the Environmental Protection Agency in cleaning up affected sites. In its brief, NCLC argued the New Mexico attorney general's claim for natural resources damages is speculative and conjectural because it is not based on actual loss, and will have a chilling effect on the willingness of responsible parties to enter into agreements with federal and state agencies to undertake remedial activities under CERCLA.
Amicus brief filed 5/27/05. Decision 10/31/06.
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Extraterritorial Application of CERCLA Pakootas v. Teck Cominco Metals, Ltd.No. 04-80091 U.S. Court of Appeals for the Ninth Circuit Rejecting NCLC's request, the Ninth Circuit declined to consider en banc whether the panel properly determined that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) can be applied to the foreign conduct of a Canadian company if the alleged pollutants enter the environment of the United States. In its brief, NCLC reiterated this conclusion is not supported by statute, violates the presumption against extraterritorial application of U.S. law, interferes with traditional diplomatic mechanisms for resolving cross-border disputes, and exposes U.S. companies to potential retaliation. Amicus brief filed in support of the petition for rehearing en banc 7/26/06. Decision 10/30/06.
Federal Jurisdiction over Wetlands
Rapanos v. United States
Carabell v. United States Army Corps of Engineers
Nos. 04-1034 & 04-1384
Supreme Court of the United States
In a positive development for the landowners involved, the Supreme Court remanded these two wetlands cases for further consideration as to whether federal jurisdiction could be properly asserted over their properties. Nevertheless, the Supreme Court did not speak with a clear voice as to the appropriate standard for determining whether wetlands qualify for federal regulation under the Clean Water Act. At this juncture, Justice Kennedy's opinion represents the holding of the court and concludes that a wetland must have a significant nexus to navigable waters in order to be subject to the act.
Amicus brief filed 12/2/05. Decision 6/19/06.
Climate Change Debate State of Connecticut, et al. v. American Electric Power, et al. and Open Space Institute, et al. v. American Electric Power, et al.
Nos. 05-5104 and 05-5119 U.S. Court of Appeals for the Second Circuit Attorneys general from eight states—California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin—and the City of New York sued several of the nation's leading utility companies under the so-called "federal common law" of nuisance, which they claim protects the public from the threats of global warming. The plaintiffs are appealing a district court decision which rejected this novel legal theory on the grounds that courts are ill-suited to make public policy decisions on global warming. The plaintiffs have demanded that the utilities cut their carbon dioxide emissions by at least 3% per year for 10 years. NCLC's amicus brief warned that if plaintiffs are allowed to sue under public nuisance laws, any industry engaged in lawful activities may find itself in court simply because someone found their activities offensive or inconvenient. Amicus brief filed 3/2/06. Oral argument held 6/7/06.
Emission Restrictions and Clean Air Act
United States of America v. Cinergy Corporation
No. 06-1224
United States Court of Appeals for the Seventh Circuit
NCLC has asked for the reversal of a lower court decision that applies burdensome emission restrictions to manufacturing companies. NCLC points out that routine industrial maintenance and repair projects should not constitute grounds for "new source reviews (NSR)," pursuant to the Clean Air Act. Instead, NCLC argues that the Environmental Protection Agency is pursuing a regulatory approach exceeding congressional intent for addressing NSRs.
Amicus brief filed 4/7/06.
CERCLA and Environmental Cleanup
No. 05-2328
District Court for the District of Kansas
The District Court rejected the government's motion to dismiss this implied contribution claim and permitted Raytheon's effort to recover costs from the government to go forward. The Environmental Protection Agency (EPA) issued a unilateral administrative order (UAO) requiring Raytheon to clean up toxic pollutants at an airport in Kansas previously owned and operated by the United States military. The federal government contends that the issuance of this order eliminated Raytheon's right to seek contributions from the federal government, which allegedly dumped the pollutants. In its brief, NCLC argues that the lack of meaningful judicial review renders the UAO void as a violation of due process, and that the EPA has other methods of ensuring that a private party clean up a polluted site.
Amicus brief filed 2/24/06. Decision 5/26/06.
Reimbursement for Government Oversight Costs Pursuant to CERCLAUnited States v. E. I. du Pont de Nemours & Company
Nos. 04-4546, 04-4629 U.S. Court of Appeals for the Third Circuit
Rejecting the advice of NCLC, the Third Circuit overruled its decision in United States v. Rohm and Haas and required parties who clean up sites pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") to reimburse the Environmental Protection Agency ("EPA") for the cost of watching and overseeing the private parties' work. Having participated in Rohm & Haas, NCLC urged the Third Circuit to reaffirm its prior rule that a party is not required to reimburse the EPA for oversight. The past decade has confirmed that the EPA does not effectively manage these costs and that allocating the costs to private parties would therefore be unfair.
Amicus brief filed on 7/13/05. Decision 12/22/05.
Extraterritorial Application of CERCLA
Pakootas v. Teck Cominco Metals, Ltd.
No. 04-80091
U. S. Court of Appeals for the Ninth Circuit
NCLC argues that imposing liability under the Comprehensive Environmental Response, Compensation and Liability Act on a Canadian company is not supported by statute, violates the presumption against extraterritorial application of U.S. law, interferes with traditional diplomatic mechanisms for resolving cross-border disputes, and exposes U.S. companies to potential retaliation.
Amicus letter in support of company's Petition to Appeal filed 1/7/05. Reply to amicus brief filed 1/28/05. Review granted 2/14/05. Amicus brief filed 6/9/05.
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Federal Jurisdiction under the Clean Water Act
San Francisco Baykeeper, et al. v. Cargill Salt Division and Cargill, Incorporated
Nos. 04-17554 and 05-15051
U.S. Court of Appeals for the Ninth Circuit
Agreeing with NCLC the court of appeals declined to extend federal jurisdiction under the Clean Water Act to industrial ponds adjacent to navigable waterways where those ponds are not in any way hydrologically connected to the navigable waterways. Following the Supreme Court's decisions in Rapanos v. United States and Carabell v. United States Army Corps of Engineers, this decision confirms that the "significant nexus" test reflects real boundaries on federal jurisdiction.
Amicus brief filed 4/20/05. Decision 3/8/07.
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Regulation of CO2 and other "Greenhouse Gases" under the Clean Air Act
Commonwealth of Massachusetts, et al. v. United States Environmental Protection Agency
Nos. 03-1361 and 03-1365
U. S. Court of Appeals for the District of Columbia Circuit
In the first case, NCLC intervening in support of the Environmental Protection Agency's denial of an administrative petition filed by the International Center for Technology (ICTA), an environmental group that insists the agency has a "mandatory duty" to regulate CO2, methane, nitrous oxide, and hydrofluorocarbons (or "greenhouse gases") as air pollutants, in a lawsuit filed by ICTA and eleven states. In the second case, NCLC intervening on the agency's side in a suit seeking judicial review of a legal memorandum from EPA issued in conjunction with the denial of ICTA's petition. These cases represent the first opportunity for a court to address whether EPA has an existing obligation to regulate greenhouse gases under the Clean Air Act.
Motion to intervene on behalf of EPA filed 11/24/03. Motion to intervene on behalf of EPA granted 12/23/03. Petitioners' brief filed 6/22/04. Defendant's brief to be filed 10/12/04. Joint Intervenor-Respondents' brief filed 11/2/04. Oral argument held 4/8/05.
Extraterritorial Application of CERCLA
Pakootas v. Teck Cominco Metals, Ltd.
No. 04-80091
U. S. Court of Appeals for the Ninth Circuit
The Ninth Circuit agreed to review an unwarranted and unprecedented district court expansion of the Comprehensive Environmental Response, Compensation and Liability Act, otherwise known as "Superfund", to business conduct that occurred outside U.S. borders. NCLC urged appellate court review on the grounds that imposing CERCLA liability on a Canadian company is not supported by statute, violates the presumption against extraterritorial application of U.S. law, interferes with traditional diplomatic mechanisms for resolving cross-border environmental disputes, and exposes U.S. companies to potential retaliation.
Amicus letter in support of company's Petition to Appeal filed 1/7/05. Reply to amicus brief filed 1/28/05. Review granted 2/14/05.
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Unilateral Cleanup Orders under Superfund
General Electric Company v. Leavitt and the United States Environmental Protection Agency
No. 1:00CV02855
U. S. District Court for the District of Columbia
In this case, General Electric challenges the constitutionality of the "unilateral administrative order" (UAO) provisions of CERCLA, the Superfund statute. NCLC filed an amicus brief that argued that these provisions, as implemented by EPA, violate due process because EPA uses the UAO process to force Superfund clean-ups in a manner that completely by-passes the opportunity for judicial review. This is the second time that NCLC filed a brief in this case, which arises out of the Hudson River clean-up; NCLC previously filed a brief in support of GE when the EPA moved to dismiss GE's challenge for lack of jurisdiction; GE won in the D.C. Circuit, and the case was remanded to address the due process claims.
Amicus brief in support of Plaintiff's opposition to Defendant's motion for summary judgment filed 12/22/04.
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