In Sackett v. EPA, 2023 WL 3632751 (U.S. May 23, 2023), the Supreme Court limited the authority of the United States Environmental Protection Agency (“EPA”) to regulate wetlands by embracing a “continuous surface connection test” to determine if adjacent wetlands are subject to the Clean Water Act (“CWA”) and explicitly rejecting Justice Kennedy’s “significant nexus” test from Rapanos v. United States, 547 U.S. 715, 754 (2006). While the 9-0 decision was unanimous in judgment by holding that the Sacketts’ wetland was not subject to federal jurisdiction, the court was sharply divided as to the test to determine when an adjacent wetland qualifies as a Water of the United States (or “WOTUS”).  A five-justice majority held that the CWA’s jurisdiction includes only adjacent wetlands that are indistinguishable from WOTUS due to a continuous surface connection. Under this framework, for an adjacent wetland to be subject to CWA jurisdiction, the adjacent body of water must constitute a WOTUS, and the adjacent wetland must have a continuous surface connection with the WOTUS such that it is difficult to determine where the body of water ends and the wetland begins.  The majority’s holding casts serious doubt on the continuing viability on the final WOTUS rule that became effective earlier this year and relied in part on the “significant nexus” test that EPA and the United States Army Corps have applied through guidance since the Rapanos decision. See 88 Fed. Reg. 3004 (Jan. 18, 2023). Read More »

Share | Email| Comments|  Topics: Clean Water Act, Decisions of Note, EPA, Major Questions Doctrine, Navigability, Ninth Circuit, Rapanos, Supreme Court, United States Supreme Court, Wetlands

This Blog Post was authored by Omar Khodor, a summer associate.

On June 23, 2021, the Ninth Circuit, in directing the lower court to dismiss a citizen’s suit claim under the Clean Water Act (“CWA”), held that the CWA did not abrogate tribal sovereign immunity. Deschutes River All. v. Portland Gen. Elec. Co., No. 18-35867, 2021 WL 2559477 (9th Cir. June 23, 2021). To abrogate a Tribe’s sovereign immunity, the Ninth Circuit explained that a statute must convey “perfect confidence” that Congress intended to abrogate tribal sovereign immunity. Id. at 14. It further found that the CWA does not unequivocally do so because Section 1365 – a section explicitly dealing with United States and governmental sovereign immunity – does not mention tribal sovereign immunity. Id. at 15-16. Rather, Section 1365 states that “any citizen may commence a civil action on his own behalf . . . against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution).” 33 U.S.C. § 1365. Although Section 1362(5) of the CWA goes on to define “any person” as a municipality (among other things), and Section 1362(4) further defines a “municipality” as including an “Indian Tribe or an authorized Indian Tribal organization,” the court determined that Congress had not clearly intended to abrogate tribal sovereign immunity because Tribes are not included in Section 1365. Deschutes River All., 2021 WL 2559477 at *15-16. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Energy, Federal Procedure, Ninth Circuit, Procedure, Sovereign Immunity, Tribal Lands

In a split decision that could have ramifications for future lawsuits involving the present pandemic, a majority panel in the Ninth Circuit held that the United States was not liable under CERCLA as an “operator” at the Lava Cap Mine Superfund Site when it ordered the mine to shut down during World War II. United States v. Sterling Centrecorp Inc., No. 18-15585 (9^th Cir. Oct. 5, 2020). The decision will likely spell some relief for local, state, and federal officials that have issued similar shutdown orders across the United States during the COVID-19 pandemic. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Contamination, Mining, Ninth Circuit, Operator Liability, Superfund

On September 14, 2020, the U.S. Court of Appeals for the Ninth Circuit held that speculative, potential future response costs are not recoverable in a contribution action under CERCLA, even if the party seeking contribution has already made an expenditure for such costs pursuant to a settlement. The response costs at issue in ASARCO LLC v. Atlantic Richfield Co, No. 18-35934, D.C. No. 6:12-cv-00053-DLC (9th Cir. Sept. 14, 2020) were part of a cash-out bankruptcy settlement that resolved plaintiff ASARCO LLC’s liability for several contaminated sites. Only a portion of the settlement funds paid by ASARCO had been spent on remediating the site in question, with the rest held in trust to address future potential response costs. Although the Ninth Circuit affirmed the district court’s allocation of 25 percent of the cleanup responsibility to the defendant, Atlantic Richfield, it vacated and remanded the district court’s decision with respect to the future costs. Read More »

Share | Email| Comments|  Topics: Allocation, Bankruptcy, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Montana, Ninth Circuit, Remediation, Superfund

The Federal Tort Claims Act permits claims for monetary damages against the United States for injury or loss of property caused by the wrongful acts of federal employees. See 28 U.S.C. § 1346(b)(1). However, this waiver of sovereign immunity is limited by the discretionary function exception, which preserves immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” 28 U.S.C. § 2680(a). Recently, the United States Court of Appeals for the Ninth Circuit analyzed the discretionary function exception in the context of environmental contamination, finding that the exception does not apply to what can best be described as ordinary negligence in the performance of a site remediation. Nanouk v. United States, No. 13-35116 (Sept. 4, 2020). Read More »

Share | Email| Comments|  Topics: Alaska, Cleanup, Contamination, Federal Tort Claims Act, Negligence, Ninth Circuit, Nuisance, Odors, PCBs, Property Damage, Remediation, Removal, Sovereign Immunity, Toxic Torts, Trespass

On August 10, 2020, the Ninth Circuit reversed a lower court’s grant of defendants’ motion for summary judgement, permitting plaintiffs’ case to move forward in a Superfund action for contribution. See Arconic v. APC Investment, No. 19-55181 (9th Cir. Aug. 10, 2020), a case we had reported on here. At issue was whether a settlement between plaintiffs and certain de minimis parties for future potential response costs was an adequate triggering event for the statute of limitations period (against different defendants) in an action for contribution under CERCLA Section 113(f). The Ninth Circuit held that it was not, explaining that in the context of a “judicially approved settlement,” the proper triggering event was a settlement which imposed actual cleanup costs in excess of a party’s estimated liability at the site. Read More »

Share | Email| Comments|  Topics: California, Case Update, CERCLA, Contamination, Contribution, Groundwater, Ninth Circuit, Statute of Limitations, Superfund

In a report and recommendation issued last week, a magistrate judge with the United States District Court for the District of Idaho found that disputes of fact preclude summary judgment on the majority of claims brought by a landfill against the United States Air Force and two other defendants. Idaho Waste Systems, Inc. v. U.S. Air Force, No. 1:18-cv-00229 (D.C. Idaho Jan. 27, 2020). The magistrate judge recommended dismissing state law claims brought against the Air Force on sovereign immunity grounds, but found that most of the remaining claims, including claims under CERCLA, should go to trial. Read More »

Share | Email| Comments|  Topics: Arranger Liability, Cases to Watch, CERCLA, Contribution, Cost Recovery, Federal Tort Claims Act, Iowa, Landfill, Ninth Circuit, Nuisance, Property Value, Response Action Contractors, Sovereign Immunity, Superfund, Trespass

Under the Clean Water Act (CWA), a TMDL establishes the maximum amount of each pollutant that an impaired water segment can receive while still meeting identified water quality standards. After EPA receives a proposed TMDL from the state, it has a non-discretionary duty to either “approve or disapprove” the TMDL. See 33 U.S.C. § 1313(d)(2). If EPA approves the TMDL, it becomes effective. If EPA disapproves the TMDL, it must produce and issue its own TMDL within thirty days. Just before the close of 2019, the Ninth Circuit affirmed the decision of the District Court for the Western District of Washington to compel the Environmental Protection Agency (EPA) to issue a temperature total maximum daily load (TMDL) for the Columbia and Snake Rivers. Columbia Riverkeeper v. Wheeler, No. 18-35982 (9th Cir., Dec. 20, 2019). At issue in the litigation was whether the “constructive submission doctrine” applied when Washington and Oregon failed to submit required temperature TMDLs and whether that failure triggered a non-discretionary duty for EPA to issue the TMDL itself. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Ninth Circuit, TMDL, Water

This Post was primarily authored by Andrew LeDonne, a MGKF summer associate. 

On July 17, 2019, the Ninth Circuit Court of Appeals upheld a district court’s interpretation of a release agreement between ASARCO and the Union Pacific Railroad Company (“UP”)  to preclude ASARCO's claim against UP to recover cleanup costs for the Coeur d’Alene superfund site (the "CDA Site"). ASARCO LLC v. Union Pac. R.R. Co., 2019 WL 3216615 (9th Cir. July 17, 2019).  This was the second time that the Ninth Circuit had the matter before it, and dispatched it with few words -- but with enough to remind practitioners of the importance of careful wording of settlement and release agreements.  Read More »

Share | Email| Comments|  Topics: Bankruptcy, CERCLA, Contribution, Cost Recovery, Mining, Ninth Circuit, Superfund

In a back and forth battle with the United States District Court for the Northern District of Arizona regarding the scope of judicial power under RCRA, the Ninth Circuit last week reopened three interest groups’ citizen suit claims against the U.S. Forest Service. In Ctr. for Biological Diversity v. U.S. Forest Serv., No. 17-15790, 2019 WL 2293425 (9^th Cir. May 30, 2019), the plaintiffs allege that the use of lead ammunition creates an imminent and substantial endangerment to human health and the environment in the Kaibab National Forest, which borders Grand Canyon National Park in northern Arizona. Reversing the district court, the Ninth Circuit held that the controversy is justiciable because it would allow the district court to issue meaningful injunctive relief and not merely an advisory opinion. Read More »

Share | Email| Comments|  Topics: Arizona, Citizen Suit, Endangered Species Act, Forest Service, Injunction, Ninth Circuit, Public Lands, RCRA