In the wake of the Supreme Court’s decision in Loper Bright Enters. v. Raimondo, 244 S.Ct. 2244 (2024), the general breadth and scope of agency decision-making has been called into question. In its recent decision, Huntsman Petrochemical LLC v. EPA, No. 23-1045, 2024 WL 3763355 (D.C. Cir. Aug. 13, 2024), the D.C. Circuit has made it clear that where statutory interpretation is not implicated, the Court will continue to afford EPA’s conclusions involving technical expertise a significant degree of deference. While neither the parties nor the Court attempted to address or reference Loper Bright, the Court articulated a clear standard applicable to agency actions involving statistical and modeling analyses: the Court will examine each step of an agency’s analysis to satisfy themselves that the agency has not “departed from a rational course.” Only where a statistical model “bears no rational relationship to the characteristics of data to which it was applied” will agency action be deemed arbitrary and capricious. Accordingly, regulated entities should be aware that the concept of deference lives on when challenging agency decision-making, even in the wake of the fall of Chevron Deference. Read More »

Share | Email| Comments|  Topics: Air, Chevron Deference, Clean Air Act, D.C. Circuit, Emissions, EPA, HAPs, Hazardous Air Pollutants, Rulemaking

This entry was authored by MGKF Summer Associate Ryan Raynor

Next term, the United States Supreme Court will decide the extent to which federal agencies must consider environmental impacts beyond their control in performing environmental reviews. On June 24, 2024, the Supreme Court granted certiorari to the Seven County Infrastructure Coalition and the Uinta Basin Railway, LLC to determine whether the National Environmental Policy Act (“NEPA”) requires a federal agency conducting an environmental impact statement (“EIS”) to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority. Eagle Cnty., Colorado v. Surface Transportation Bd., 82 F.4th 1152, 1179 (D.C. Cir. 2023), cert. granted sub nom. Seven Cnty. Coalition v. Eagle Cnty., Co, 2024 WL 3089539 (U.S. June 24, 2024). Read More »

Share | Email| Comments|  Topics: Energy, FERC, Greenhouse Gas, Natural Gas, NEPA, Oil and Gas, Pipelines, Railroad, United States Supreme Court

On July 18, 2024, in Shirley v. Pennsylvania Legislative Reference Bureau, No. 85 MAP 2022, 2024 WL 3450536 (Pa. July 18, 2024), the Pennsylvania Supreme Court reversed the denial of three nonprofit organizations’ application to intervene in the litigation challenging the Pennsylvania Department of Environmental Protection (PADEP) regulation implementing Pennsylvania’s participation in the Regional Greenhouse Gas Initiative (the RGGI Regulation).  After rejecting several arguments regarding the appealability of the order denying intervention, the Court found that the nonprofits’ interest in defending the RGGI Regulation under the Pennsylvania Constitution’s Environmental Rights Amendment (ERA) was not adequately represented by the PADEP and therefore the lower court erred in denying intervention.  Because of this ruling, the three nonprofit organizations (Citizens for Pennsylvania’s Future, Clean Air Council, and the Sierra Club) (Nonprofits) are now able to pursue an appeal of the Commonwealth Court’s final order permanently enjoining the RGGI Regulation from going into effect.  Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Environmental Rights Amendment, Greenhouse Gas, Hazardous Air Pollutants, Intervention, Pennsylvania, Pennsylvania Department of Environmental Protection, Rulemaking, Standing

This month, in Markmik, LLC v. Packer (unreported decision, No. 23-P-736), the Massachusetts Appeals Court affirmed a trial court’s finding that a less expensive cleanup option requiring buyers to accept an activity and use limitation (“AUL”), with no diminution in value damages, was appropriate given a guaranty by sellers that was silent about the level of cleanup committed to. Read More »

Share | Email| Comments|  Topics: Breach of Contract, Cleanup, Contamination, Cost Recovery, Damages, Groundwater, Massachusetts, Property Value, Real Estate, Remediation, Vapor Intrusion

This entry was authored by MGKF Summer Associate Karina Zakarian

On June 28, 2024, the United States Supreme Court overruled Chevron U.S.A., Inc. v. Natural Resources Defense Council to the extent that the earlier decision had instructed federal courts to defer to agencies’ reasonable interpretations of ambiguous statutes. See Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024). The decision stems from a challenge to the Magnuson-Stevens Act by several fishery businesses, but the sole issue before the Court was whether Chevron should be overturned. In a divisive 6-3 decision, the Court’s conservative majority held in the affirmative, entombing Chevron deference based upon the Court’s interpretation of the Administrative Procedure Act (“APA”). As a result, federal agencies like the Environmental Protection Agency (“EPA”) are now deprived of a doctrine they had long relied upon to defend their regulatory agendas. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Chevron Deference, United States Supreme Court

This entry was authored by MGKF Summer Associate Autumn Chassie

On May 28, 2024, the Supreme Court agreed to decide City and County of San Francisco v. Environmental Protection Agency. This case arose after the Environmental Protection Agency (“EPA”) required San Francisco to update its long-term control plan for combined sewer overflows and to re-evaluate alternatives for discharges during heavy rains when the system’s capacity is exceeded. 75 F.4th 1074 (9th Cir. 2023). The primary issue is whether the Clean Water Act (“CWA”) allows EPA to impose general prohibitions in National Pollutant Discharge Elimination System (“NPDES”) permits, which could subject permit holders to enforcement actions for violating water quality standards without specifying exact discharge limits. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Enforcement, NPDES, United States Supreme Court

In a 5-4 decision, a divided Supreme Court stayed the enforcement of the Environmental Protection Agency’s (“EPA”) Federal Implementation Plan (“FIP”) holding that the emission control measures set to be used in upwind states to improve ozone levels in downwind states was arbitrary and capricious. Ohio et al. v. Env’t Prot. Agency, No. 23A349, No. 23A350, No. 23A351, No. 23A384, 2024 WL 3187768 at *11 (S. Ct. June 27, 2024). The Court reasoned that EPA’s FIP rested on the assumption that all upwind states would adopt emission-reduction measures to ensure effective downwind air quality improvements. EPA, however, failed to reasonably explain if the FIP would be operable if some upwind states fell out of the plan. In the short term, the stay provides temporary relief to industry groups and states that challenged various aspects of the FIP in the D.C. Circuit; in the long term, the Court’s ruling spells trouble for the FIP’s efficacy if and when federal courts rule on the merits of the rule’s legality.      Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Air Act, United States Supreme Court

This entry was authored by MGKF Summer Associate Karina Zakarian

On June 25, the United States Court of Appeals for the Fourth Circuit, in a case of first impression, vacated the United States District Court for the District of Maryland’s holding in 68th Street Site Work Group v. Alban Tractor Company et al., No. 23-1155 (4th Cir. Jun. 25, 2024), that arranger liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) requires a potentially responsible party to have knowledge that the waste it discards is hazardous. Rather, the Fourth Circuit found that the mere intent to dispose of waste suffices to establish liability under CERCLA. According to the Court, imposing scienter on arrangers of waste disposal would contradict both legislative intent and the strict liability scheme governing superfund site remediation. Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Contribution, Fourth Circuit, Landfill, Maryland, Superfund, Waste

In a recent case from the United States District Court for the Western District of Pennsylvania, the court granted a partial motion to dismiss the plaintiff’s common law claims because they were deemed time-barred under Pennsylvania law.  Iorfido v. Domtar Paper Company, LLC et al., No. 23-156, 2024 WL 1346641 (W.D. Pa. Mar. 29, 2024).  The lawsuit stemmed from a paper mill’s ongoing emissions of lime particulate matter that allegedly harmed plaintiff’s property.  The court dismissed the common law claims as obviously barred by the two-year statute of limitations as pled in plaintiff’s complaint. Read More »

Share | Email| Comments|  Topics: Nuisance, Pennsylvania, Statute of Limitations

On May 7, 2024, the United States District Court for the District of New Jersey denied Defendant ISP Environmental Service Inc.’s (“IES”) motion to dismiss the United States’ (“the Government”) complaint seeking relief under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). United States v. ISP Envt’l Servs. Inc., 2024 WL 2013949 (D.N.J. 2024).  IES had argued in support of its motion to dismiss that it was neither an owner or operator of the site at issue, and therefore, was not a potentially responsible party under CERCLA.   The district court nevertheless held that IES was potentially liable under CERCLA as the corporate successor of another entity that had owned and operated the site, GAF Chemicals, because the Government plausibly alleged that IES assumed the liabilities for the site pursuant to a contract with GAF Chemicals.    Read More »

Share | Email| Comments|  Topics: CERCLA, Cost Recovery, Successor Liability, Superfund