28 ELR 10577 | Environmental Law Reporter | copyright © 1998 | All rights reserved

The U.S. Supreme Court's 1997-1998 Term

Marc A. Yaggi

Editors' Summary: Every year since the advent of modern environmental law, the U.S. Supreme Court has been called on to resolve controversies surrounding a variety of subjects, such as hazardous waste cleanup, water pollution, air pollution, water rights, mining claims, and land use. And every year, the Court seems to decide one or more environmental or environmentally related cases that significantly affect the field of environmental law. The Court's 1997-1998 Term was no different. This Term, the Court issued opinions in seven environmental or environmentally related cases, and denied review in over 50 such cases. The opinions issued covered a variety of important issues ranging from citizen suit standing to parent corporation liablity under CERCLA. This Comment surveys the environmental and environmentally related cases the Court reviewed or chose not to review during its 1997-1998 Term. The Comment also discusses certain implications of the cases for environmental law and the environment generally.

This Comment is dedicated in memory of Steven P. Zinno, whose law school career, full of interest in constitutional law and the Supreme Court, was cut short in April 1998. Steve's great spirit and zest for life thrives in his friends' and family's hearts and minds. Mr. Yaggi is the Litigation Coordinator for ELR-The Environmental Law Reporter. The views expressed herein are those of the author.

[28 ELR 10578]

The 1997-1998 U.S. Supreme Court Term began with the loss of the great Justice William J. Brennan.1 Mid-Term, the Court weathered the publication of a former law clerk's controversial book about the Court's inner workings.2 And the Term winded down with the Justices facing the possibility of losing their customary interment at Arlington National Cemetery.3

Inside the courtroom, petitioners, respondents, and attorneys endured their own struggles. Environmental groups suffered a loss in the doctrine of standing.4 Toxic tort lawyers weathered a refinement in appellate courts' standard of review for district court expert testimony rulings.5 And the federal government seemed to win a battle over parent corporation liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but faces the possibility of losing the war.6

This Comment surveys the environmental and environmentally related cases the Court reviewed or chose not to review during its 1997-1998 Term. The Comment also discusses certain implications of the cases on environmental law and the environment generally.

Decisions

During the 1997-1998 Term, the Court denied review in over 50 cases involving environmental law and related fields, and issued opinions in seven such cases.7 In addition, at the time this Comment went to press, the court summarily dismissed an environmental justice case that was expected to be heard in the 1998-1999 Term.8 The seven environmental and environmentally related cases decided represent a variety of environmental issues. Three opinions deal directly with environmental statutes — the Emergency Planning Community Right-To-Know Act (EPCRA),9 CERCLA,10 and the National Forest Management Act (NFMA)11 with one of the opinions decided on grounds of the oft-debated doctrine of standing.12 Another opinion addresses the appropriate standard of review for expert testimony rulings.13 Title to public lands is the subject of one of the Court's opinions.14 And two of the opinions involve Native American issues — one concerning mineral rights and the other concerning whether an 1894 Act ceded lands from a tribe.15 The following sections detail the Court's opinions in the seven cases decided, with greater attention given to the more significant environmental cases.

EPCRA — Standing

[] Steel Co. v. Citizens for a Better Environment.16 In Steel Co., the Court faced an EPCRA issue that already had been hotly debated under other environmental statutes — whether past violations are actionable.17 However, the Court never decided that issue because the case did not make it past another hotly debated issue — the parameters of the doctrine of standing.

Justice Scalia penned the majority opinion,18 with Justices [28 ELR 10579] Breyer, Stevens,19 O'Connor, and Ginsburg supplying concurring opinions. In Steel Co., the Court vacated the Seventh Circuit's decision20 and remanded the case, holding that respondent environmental group lacked standing to maintain a suit for purely past EPCRA violations.21

EPCRA requires users of specified toxic and hazardous chemicals to file annual emergency and hazardous chemical inventory forms and toxic chemical release forms.22 After receiving notice from Citizens for a Better Environment (CBE) of its failure to report EPCRA information in a timely fashion, Steel Co. filed all of the overdue forms with the relevant agencies before the 60-day notice period expired.23 Nevertheless, CBE filed suit at the end of that period.24 Steel Co. filed a motion to dismiss, arguing that EPCRA does not allow suits for purely historical violations.25 The district court agreed with Steel Co., but the Seventh Circuit held that citizens may seek penalties against EPCRA violators who file after the statutory deadline.26

On appeal to the Supreme Court, Steel Co. raised the issue of CBE's standing to maintain the suit.27 Justice Scalia began the opinion noting that the standing issue is a threshold question that must be resolved in CBE's favor before proceeding to the merits issue of whether the scope of EPCRA's right-of-action includes past violations.28 Contrary to Justice Stevens' concurrence, Justice Scalia noted that there is not a single case in which the Court has called "the existence of a cause-of-action 'jurisdictional,' and decided that question before resolving a dispute concerning the existence of an Article III case or controversy."29

The Court next rejected the "hypothetical jurisdiction" approach embraced by Justice Stevens and several circuit courts. The doctrine of hypothetical jurisdiction allows a court to decide a case on the merits, even though the court may not have jurisdiction in the case. Justice Scalia noted that the doctrine imposes on the fundamental principles of separation of powers. "Hypothetical jurisdiction produces nothing more than a hypothetical judgment — which comes to the same thing as an advisory opinion, disapproved by this Court from the beginning."30

After an extensive discussion of jurisdiction and hypothetical jurisdiction, the Court addressed the issue of whether CBE had standing to maintain a cause-of-action. The Court ultimately held that CBE lacked standing because its complaint failed the redressability requirement of standing. The Court firstassessed CBE's allegation to determine whether the constitutional requirements of standing — injury-in-fact, causation, and redressability — had been met. The Court neglected to determine whether CBE's alleged injury, the effect of Steel Co.'s failure to provide EPCRA information in a timely manner, was a concrete injury that satisfies Article III because CBE's complaint failed the redressability requirement.31 None of the specific items of relief sought by CBE, and none that the Court could envision as appropriate under CBE's general request for relief, would reimburse the organization for losses caused by Steel Co.'s reporting or eliminate any effects of that late reporting on CBE.32 The request for declaratory judgment was worthless because there was no controversy over whether the company had failed to file reports, or whether such a failure constituted a violation. Civil penalties might have been viewed as a form of redress to CBE if the penalties were payable to CBE, but civil penalties are only payable to the U.S. Treasury.33 Further, a plaintiff cannot achieve standing by bringing the suit for the cost of bringing the suit, even though the requested investigation and prosecution costs would benefit CBE. If the group had alleged a continuing violation or the imminence of a future violation, the injunctive relief requested — authorizing CBE to inspect Steel Co.'s facility and records and compelling the company to provide the group with copies of U.S. Environmental Protection Agency (EPA) compliance reports — would have remedied that alleged harm. But there was no such allegation. Therefore, the Court held that CBE lacked standing to maintain the suit and that "EPCRA will have to await another day."34

[28 ELR 10580]

In a concurring opinion, Justice Stevens argued that the statutory and standing questions are both jurisdictional issues, and the Court should have addressed the statutory question first to avoid unnecessarily passing on an undecided constitutional question.35 Justice Stevens noted that the Court has routinely held that when presented with two jurisdiction questions, a court may choose which issue to determine first.36

According to Justice Stevens, the Court had never before held that a plaintiff who is directly injured by a defendant lacks standing to sue because of a lack of redressabiity.37 However, Justice Stevens would hold that EPCRA does not confer jurisdiction over citizen suits for wholly past violations.38 Although the language of the citizen suit provision is ambiguous, other sections of EPCRA indicate that Congress did not intend to confer jurisdiction over citizen suits for wholly past violations.39

This decision has significant potential impacts on EPCRA citizen suits and other citizen suits.40 Most environmental statute's citizen suit provisions provide for civil penalties that are payable to the U.S. Treasury. In Steel Co., the Court held that penalties paid to the U.S. Treasury were not sufficient redress to establish standing for an environmental group. However, civil penalties act as a deterrent to future violations. A civil penalty imposed on Steel Co. surely would affect the company's future compliance with EPCRA, thereby redressing CBE's injuries. "If citizens could not seek civil penalties for past violations, the deterrent effect of EPCRA citizen suits and penalties would be eviscerated. As a result, citizens would be exposed to the risk of increased pollution."41 Furthermore, the decision leaves open the question of whether payment of penalties through environmental projects would satisfy the redressability prong of standing.

The decision also hints that EPCRA does not allow suits for past violations. As with other environmental statutes, environmental groups may be faced with the prospect of companies consistently violating the law, only to escape enforcement by achieving compliance after the damage has been done. This is particularly true under EPCRA, where delinquent forms can be filled out in a matter of weeks, before the notice period expires.

Another implication of Steel Co. is that "even seven years of past noncompliance will not demonstrate the likelihood of a future violation."42 Because establishing a likelihood of future violations is often integral to citizens suits, Steel Co. provides another obstacle to citizen enforcement of federal environmental laws.

CERCLA — Parent Corporation Liability

[] United States v. Bestfoods.43 Parent corporation liability in CERCLA cases, another hotly debated environmental issue,44 was decided in the Bestfoods case. Justice Souter delivered the opinion for a unanimous Court, which held that a parent corporation not actively engaged in operating its subsidiary's polluting facility may not be held liable under CERCLA as an operator of the facility unless the corporate veil can be pierced.45

In Bestfoods, the United States brought a CERCLA § 107(a)(2) action against CPC International, the parent corporation of a defunct chemical company, for cleanup costs resulting from the intentional and unintentional dumping of hazardous substances at the subsidiary's plant.46 When the parent corporation purchased the chemical company, the parent kept the company's managers as officers.47

The district court found the parent corporation liable, holding that operator liability may attach to a parent corporation both indirectly, when the corporate veil can be pierced, and directly, when the parent corporation has actively participated in and exercised control over the subsidiary during the time of hazardous substance disposal.48 Applying that test, the district court noted that the parent corporation selected the subsidiary's board of directors and populated its executive ranks, and that a parent corporation official played a significant role in shaping the subsidiary's environmental compliance policy.49

The Sixth Circuit reversed the district court in part.50 Then, it granted rehearing en banc, vacated the prior decision and, again, reversed the district court in part.51 It rejected the district court's analysis regarding owner liability attaching to a parent corporation for independently operating the subsidiary's facility.52

The Supreme Court vacated and remanded the Sixth Circuit's decision. The Court first noted that it is a general principle that a parent corporation is not liable for the acts of its subsidiaries, and nothing in CERCLA purports to reject this principle.53 However, an equally fundamental principle of corporate law is that the corporate veil may be pierced and [28 ELR 10581] the shareholder held liable when the corporate form is used for wrongful purposes.54 Thus, the Sixth Circuit was "correct in holding that when (but only when) the corporate veil may be pierced, may a parent corporation be charged with derivative CERCLA liability for its subsidiary's actions."55

However, nothing in CERCLA bars a parent corporation from direct liability for its own actions in operating its subsidiary's facility:

The fact that a subsidiary happens to own a polluting facility operated by its parent does nothing, then, to displace the rule that the parent "corporation is [itself] responsible for the wrongs committed by its agents in the course of its business," and whereas the rules of veilpiercing limit derivative liability for the actions of another corporation, CERCLA's "operator" provision is concerned primarily with direct liability for one's own actions.56

The Court noted that any person who operates a polluting facility is directly liable, regardless of whether the person is the facility's owner.57 Thus, the Sixth Circuit was correct in rejecting the district court's analysis of direct liability.58 However, the Sixth Circuit erred in limiting direct liability under the statute to a parent corporation's sole or joint venture operation.59

The Court held that the parent corporation can be liable even if the corporate veil cannot be pierced.60 The district court's analysis rested on the relationship between the parent and the subsidiary. But the analysis should have been based on the relationship between the parent and the facility. Under this analysis, it is not enough to establish liability by showing that dual officers and directors made policy decisions and supervised facility activities.61 Rather, the federal government would have to show that officers were acting in their capacities as parent corporation officers and directors when they made policy decisions and supervised facility activities.62 Thus, the participation-and-control test cannot be used to find direct parent corporation liability. The critical question is whether actions directed to the facility by an agent of the parent alone are "eccentric" under accepted norms of parental oversight of a subsidiary's facility.63 The Court found some evidence of "eccentric" actions, and remanded the case for reevaluation of the actions of the parent corporation's agents who may have had a role in operating the subsidiary's facility.

The Bestfoods case has significant ramifications for parent corporation liability. Although the Court hinted that there was enough evidence to support the parent corporation's liability in this case, it will be more difficult for the government to establish parent liability in the future. Rather than simply demonstrating that the parent corporation exercised control over the subsidiary, the government must show "eccentric" actions of the parent in its control of the facility. This will require greater evidence than a showing of board of directors control and policy decisionmaking by the parent corporation. Although this case hints that the corporation will be found liable, the case appears to be a victory for industry.64 "The case will ensure that in the future courts will look at what a parent corporation actually does, rather that "run it through special lenses' simply because it is a parent corporation…."65

NFMA — Ripeness

[] Ohio Forestry Ass'n v. Sierra Club.66 In addition to Steel Co., the Court issued another decision based on case or controversy grounds. However, unlike Steel Co., Ohio Forestry was decided under the doctrine of ripeness, rather than the doctrine of standing.

Justice Breyer authored the unanimous opinion in Ohio Forestry, holding that the Sierra Club's challenge to a U.S. Forest Service land and resource management plan (LRMP) for Wayne National Forest in Ohio was not yet ripe for review. The NFMA requires the Forest Service to develop LRMPs that take into account environmental and commercial goals. In an LRMP, the Forest Service sets logging goals, but it does not and cannot authorize the cutting of any trees. After the Forest Service proposed its LRMP for Wayne National Forest, the Sierra Club brought suit challenging the LRMP's lawfulness, claiming Forest Service violations of the NFMA, the National Environmental Policy Act (NEPA),67 and the Administrative Procedure Act (APA),68 and violations of the Forest Service's role as a public trustee.69 The district court determined that the Forest Service acted lawfully.70 However, the Sixth Circuit held that the Forest Service violated the NFMA because the LRMP improperly favored clearcutting, and that there was no need to wait for a site-specific action to occur because the suit was ripe for review.

After discussing the history of the case, Justice Breyer [28 ELR 10582] noted that it does not satisfy any of the requirements for a case to be ripe for review.71 First, withholding court consideration would not cause the parties significant hardship. The LRMP "does not give anyone a legal right to cut trees, nor does it abolish anyone's legal authority to object to trees being cut."72 In addition, the Forest Service cannot authorize logging without an extensive site-specific review process; thus, the Sierra Club would have an opportunity to bring its legal challenge at a time when harm is more imminent and more certain. The Sierra Club did note that it would be easier and cheaper to challenge the LRMP once, rather than pursuing each site-specific logging decision. However, Justice Breyer rejected that argument by noting that one initial site-specific victory could extend to other sites via preclusion principles, and that cost-saving by itself has never been sufficient to justify review in a case.73 Second, "immediate judicial review directed at the lawfulness of logging and clearcutting could hinder agency efforts to refine its policies."74 Furthermore, judicial review would require time-consuming review of a plan that may affect different parcels of land in a variety of ways, and the effects may change over time.75 And last, Congress did not provide for judicial review of forest plans.76

At the end of Justice Breyer's opinion, he noted that the Sierra Club's claim that the forest plan will permit many other intrusive activities to occur without any additional consideration of their impact is ripe for review.77 However, the issue was raised for the first time in the briefs to the Court on the merits, and the Sierra Club's complaint does not include such claims.

As for practical implications of Ohio Forestry, the Court itself noted that the case-by-case approach is frustrating to an environmental organization whose objective is across-the-board protection of our nation's forests.78

Toxic Torts — Expert Testimony

[] General Electric Co. v. Joiner.79 In Joiner, the Court had an opportunity to fine tune the seminal Supreme Court decision of Daubert v. Merrell Dow Pharmaceuticals, Inc.80 More specifically, the Court addressed the question of the appropriate standard for appellate review of a district court's decision to admit or exclude scientific evidence. The Court answered the question by holding that abuse of discretion is the proper standard.

The case evolved from the development of small cell lung cancer in Robert Joiner, an electrician. Joiner's work allegedly exposed him often to polychlorinated biphenyls (PCBs). After developing cancer, he sued various PCB manufacturers, alleging that exposure to PCBs and their derivatives (furans and dioxins) had promoted his cancer. Although the district court ruled that there was a genuine issue of material fact as to whether Joiner had been exposed to PCBs, the court granted summary judgment to the PCB manufacturers on the grounds that there was no genuine issue as to whether Joiner had been exposed to furans and dioxins, and that Joiner's experts had failed to establish a link between PCB exposure and small cell lung cancer.81 The Eleventh Circuit reversed the district court, applying a stringent standard of review to the trial judge's exclusion of testimony.82 Thereafter, the Court granted certiorari and reversed the Eleventh Circuit.

Chief Justice Rehnquist authored the Joiner opinion, with Justice Breyer concurring and Justice Stevens concurring in part and dissenting in part. The opinion began by discussing the parties' basic arguments. The PCB manufacturers argued that the Eleventh Circuit should have applied the abuse of discretion standard to the district court's evidentiary rulings.83 Joiner argued that abuse of discretion is the correct standard, but it is reasonable for appellate courts to devote more resources to analyzing decisions that are outcome-determinative, such as the summary judgment ruling in this case.84

The Court noted that the general rule is that abuse of discretion is the proper standard of review, and that Daubert did not alter this standard of review in the context of a district court's decision to exclude scientific evidence.85 The Court also rejected the argument that outcome-determinative rulings should be subject to a more searching standard of review.86 Thus, the Court held that the Eleventh Circuit erred in applying an overly stringent review of the district court's ruling.87

Next, the Court held that the district court did not abuse its discretion. The animal studies on which Joiner's experts relied did not support the argument that PCB exposure led to Joiner's cancer.88 And Joiner never explained "how and why the experts could have extrapolated their opinions from these seemingly far-removed animal studies."89 Instead, Joiner focused on arguing the issue of whether animal studies can ever be a proper foundation for expert testimony. In addition, the four epidemiological studies used by Joiner's [28 ELR 10583] experts failed to establish a sufficient basis for the expert opinions.90 The Court also held that the district court did not abuse its discretion by concluding that the analytical gap between the data and the opinion proffered was too great.91 The Court then remanded the case for consideration of whether Joiner had been exposed to furans and dioxins.

In an opinion concurring in part and dissenting in part, Justice Stevens stated that he would remand the case for application of the proper standard of review. According to Justice Stevens, the question of whether the district court properly excluded the testimony was not briefed adequately, and the record was incomplete on the issue.

Certain implications of this case result from the greater likelihood that district court evidentiary rulings will be up-held. This will create greater burdens on expert witnesses to provide a highly detailed step-by-step map of their reasoning in order to give the appellate court a proper basis on which to overturn a district court's exclusion.

Public Lands — Quiet Title Act

[] United States v. Beggerly.92 The Beggerly case brought to the Supreme Court a jurisdictional issue over quieting title to lands on Horn Island, Mississippi. The case began in 1979 when the United States sued a group of citizens to quiet title in lands in order to establish a federal park. The government claimed that it had never patented the land after acquiring it during the Louisiana Purchase.93 After searching public land records, the government failed to find any grant to a private landowner.94 As a result, a settlement agreement quieted title in the government's favor in return for payment to the citizens.95 Then, in 1994, the citizens brought suit to set aside the settlement agreement on grounds that the land had been granted to a private owner before the Louisiana Purchase.96

The district court held that it had no jurisdiction to hear the case.97 However, the Fifth Circuit reversed the district court, holding that it had jurisdiction based on the Quiet Title Act (QTA) and the fact that the suit was an "independent action" under Fed. R. Civ. P. 60(b).98 The court also found that even though the citizens knew of the government's claim for more than 12 years, the suit was not barred because the 12-year statute of limitations under the QTA was equitably tolled.99 The Fifth Circuit then held that the government had no legitimate claim to the land and set aside the settlement agreement.100

At the Supreme Court level, Chief Justice Rehnquist's unanimous opinion101 held that the Fifth Circuit had no jurisdiction over the citizens suit.102 The Court first held that the Fifth Circuit erred in concluding that jurisdiction was available under Fed. R. Civ. P. 60(b), because the citizens suit was not an independent action.103 An independent action is only available to prevent a grave miscarriage of justice, and the citizens' allegations that the government failed to search its public land records thoroughly did not meet this demanding standard.104

The Court also held that the QTA did not confer jurisdiction to quiet title in the citizens' favor.105 The citizens knew of the government's claim more than 12 years before filing suit, and equitable tolling is not permissible where it is inconsistent with the relevant statute.106 The fact that the QTA had already effectively allowed for equitable tolling, and the generous statute of limitations under the QTA, made additional equitable tolling unwarranted.107 Therefore, the Court reversed the Fifth Circuit's decision.

Tribal Lands

[] South Dakota v. Yankton Sioux Tribe.108 In Yankton Sioux, another less traditional "environmental" decision, the Court construed an 1894 Act to determine whether the state of South Dakota has primary jurisdiction over a landfill on lands allegedly ceded by the Yankton Sioux Tribe. In reversing and remanding the Eighth Circuit's decision,109 the Court held that the 1894 Act diminished the boundaries of the Yankton Sioux Reservation, and that as a result, South Dakota has primary jurisdiction over the landfill.110 After discussing the history of relations between the United States and the Yankton Sioux as they related to the land at issue, Justice O'Connor reviewed the procedural history of the case.

When the Southern Missouri Recycling and Waste Management District was granted a permit for a landfill on lands within the 1858 boundaries of the Yankton Sioux Reservation, the Yankton Sioux Tribe objected and sought a declaratory judgment that the permit did not comport with EPA regulations mandating a composite liner in the landfill. The district court held that the tribe itself could not assen regulatory jurisdiction over the non-Native American activity.111 Furthermore, the tribe could not assert its inherent sovereignty, because it did not establish that the landfill would compromise the political integrity, the economic security, or the health or welfare of the tribe.112 The district court also held that because the 1894 Act did not diminish the boundaries of the reservation, the landfill is within the [28 ELR 10584] reservation, where federal environmental regulations apply.113 Then, the Eighth Circuit held that the savings clause in the 1894 Act required the tribe to sell its lands, but not its governmental authority over them.

The Supreme Court's analysis of the case came down to construing the 1894 Act. "Our touchstone to determine whether a given statute diminished or retained reservation boundaries is congressional purpose," because Congress has plenary power over Native American affairs.114 However, Congress often was not meticulous in distinguishing between acquiring Native American property and assuming jurisdiction over it because, at that time, Congress assumed that the reservation system would fade over time.115 Therefore, the Court also availed itself of the historical context surrounding the 1894 Act and the subsequent treatment of the surrounding area.

The Court noted that the 1894 Act includes language, such as "cession" and "sum certain," that is "precisely suited" to terminating reservation status.116 In fact, the 1894 Act's language parallels the language that terminated a reservation in a prior case.117

The Court then rejected the argument that the 1894 Act's savings clause, which states that nothing in the 1894 Act's terms shall be construed to abrogate the treaty of 1858, points against diminishment. A construction as literal as that would "impugn the entire sale."118 Rather, the Court gave a "sensible construction" to the savings clause, holding that it pertains to the continuance of annuities, not the 1858 borders.119 The Court also held that from the inclusion of a provision prohibiting liquor on ceded lands it can be reasonably inferred that Congress was aware that the opened and unallotted land areas would not be Native American land because Congress already had enacted laws prohibiting alcohol on Native American reservations.120

The Court also considered the contemporary historical context of the 1894 Act, subsequent congressional and administrative references to the reservation, and demographic trends. "[A]lthough the context of the Act is not so compelling that, standing alone, it would indicate diminishment, neither does it rebut the 'almost insurmountable presumption' that arises from the statute's plain terms."121 And although in the years since the Act was passed both Congress and the Executive Branch have described the reservation in contradictory terms and treated the region in an inconsistent manner, the Court held that the mixed record carries little force in light of the strong textual and contemporaneous evidence of diminishment.122 Furthermore, the fact that the Yankton population in the region promptly and drastically declined after the 1894 Act does provide an additional clue as to what Congress intended.123 And the state's assumption of jurisdiction over the territory almost immediately after the 1894 Act and continuing to the present day further reinforces the Court's holding.124 Therefore, the Court held that the 1894 Act diminished the reservation, and that the state has primary jurisdiction over the landfill and other lands ceded under the Act.

Native Americans — Coal Extraction Taxes

[] Montana v. Crow Tribe of Indians.125 This case confronted the Court with the issue of whether a Native American tribe and the United States could recover state and county coal extraction taxes paid by one of the tribe's mineral lessees. In an opinion by Justice Ginsburg, the Court held that the Crow Tribe and the United States, as the tribe's trustee, could not recover the taxes.126

Justice Ginsburg began the opinion with a lengthy summary of the protracted litigation between the Crow Tribe and Montana. The conflict between the two parties dated back to 1975, when the state initially imposed a severance tax and a gross proceeds tax on all coal produced in Montana.127

Next, the Court addressed the tribe's arguments. In rejecting the tribe's argument that it should recover the taxes collected from its lessee, the Court noted that neither the state nor the tribe was authorized to tax the lessee to the exclusion of the other.128 In addition, the tribe could not have taxed the lessee during the period in question because the U.S. Department of the Interior (DOI) disapproved of the tribe's imposition of a coal tax, and the tribe did not seek judicial review of the DOI's decision.129

The Court also determined that the tribe is not entitled to disgorgement based on the fact that the state tax deprived the tribe of its fair share of economic rent. The tribe could not have taxed the lessee without the DOI's approval, and no evidence suggests that the lessee would have paid higher royalties but for the state's tax.130 The Court further noted that the tribe and the United States argued for total disgorgement of the taxes collected.131 The complaint did not seek compensatory damages, and they did not establish entitlement to such relief.

Justice Souter and Justice O'Connor, who joined Justice Souter's opinion concurring in part and dissenting in part, opined that they would hold that the tribe is entitled to seek disgorgement for the excess state taxes collected from the lessee.132

[28 ELR 10585]

Summary Rulings

Civil Rights — Private Right-of-Action

[] Seif v. Chester Residents Concerned for Quality Living.133 At the time this Comment went to press, the Court dismissed as moot a challenge to the issuance of a permit for a contaminated soil treatment facility to be located in a residential area heavily populated by minorities. The Seif case raised the issue of whether a private right-of-action exists under discriminatory effect regulations promulgated by EPA pursuant to § 602 of the Civil Rights Act.134 The Third Circuit held that a private right-of-action does exist under § 602 and its implementing regulations.135 However, after the underlying permit was revoked, the Court vacated the Third Circuit's judgment and remanded the case with instructions for dismissal.

Cases for Which the Court Denied Petitions for Certiorari

Although cases decided by the Supreme Court tend to generate more media and scholarly attention, the cases for which the Court denies review also have a great impact on the law. Cases denied review remain as circuit precedent and persuasive authority. In its 1997-1998 Term, the Supreme Court denied review in over 50 environmental and environmentally related cases. The following section of this Comment reviews a selected number of the more important cases that were denied review.

CERCLA — Statute of Limitations

[] Sun Co. v. Browning-Ferris, Inc.136 The Tenth Circuit held that the six-year statute-of-limitations period in CERCLA § 113(g)(2) governs the contribution claims of potentially responsible parties (PRPs) who incur cleanup costs pursuant to a CERCLA § 106 unilateral administrative order.137 First, the court held that PRPs' claims against other PRPs are for contribution, not cost recovery, because they are by and between jointly and severally liable parties seeking equitable apportionment of costs that plaintiff PRPs were compelled to incur.138 The fact that the plaintiff PRPs incurred cleanup costs pursuant to a unilateral administrative order does not change their status as jointly and severally liable parties.139

The court then held that the plaintiff PRPs' claims against other PRPs are subject to a six-year statute of limitations. While CERCLA § 113(g)(2) provides a three-year statute of limitations for contribution, none of the triggering events in § 113(g)(2) will occur in this situation, thereby giving the plaintiff PRPs unlimited time to bring their claims.140 However, a close reading of § 113(g) reflects that not all contribution actions are subject to the same limitations period.141 CERCLA § 113(g)(2) provides that an initial action for recovery of costs referred to in § 107 must be commenced within six years of initiation of physical on-site construction of the remedial action.142 And a § 113(f) action for contribution, as in this case, is an action for recovery of the costs referred to in § 107.

CERCLA — Liability

[] Pinal Creek Group v. Newmont Mining Corp.143 This case required the Ninth Circuit to address the issue of whether CERCLA provides a PRP who is partly liable for the cleanup of a hazardous waste site with a claim against other PRPs for the joint and several recovery of its cleanup costs. The court answered that it does not.144 The case involved a group of mining companies that voluntarily cleaned up a hazardous waste site at which they were partly responsible for the cleanup. The group sought full recovery from other PRPs under CERCLA § 107, and claimed that the defendant PRPs could then bring contribution actions against the group.145

The Ninth Circuit held that a claim by one PRP against another PRP necessarily is for contribution.146 The text and history of CERCLA show that §§ 107 and 113 work together, with § 107 creating the claim for contribution, and § 113 qualifying the nature of the claim.147 A PRP's liability to another PRP is not joint and several; instead, the liability corresponds to the PRP's equitable share of the total liability. A joint and several approach to liability in suits among PRPs would cause the defendant PRPs to pay for all the costs attributable to orphan shares.148 This would under-mine the courts' ability to allocate costs between all PRPs.149 And even reducing the portion of the orphan shares that the plaintiff PRP should bear could cause multiple, unnecessary lawsuits.150

Resource Conservation and Recovery Act151 — Preemption

[] Cavallo v. Star Enterprise.152 The Fourth Circuit held that EPA remedial orders under the Resource Conservation and [28 ELR 10586] Recovery Act (RCRA) may not preempt claims that individuals who reside near a petroleum tank farm brought against its owner for damages resulting from the release of petroleum and petroleum vapors.153 EPA investigated the farm and negotiated an administrative consent order, which was superseded by an administrative order requiring the farm to implement corrective measures under EPA supervision.154 Thereafter, another significant petroleum spill occurred, and the individuals brought various claims for negligence, trespass, and a violation of the state water control law. The district court held that most of the individuals' claims were preempted by EPA's remedial orders.155

The Fourth Circuit held that "incidents of improper operation, supervision, management, design, installation, repair, and updating of the Tank Farm or its equipment may be actionable if not compelled by the EPA Orders."156 In addition, the farm's failure to notify the individuals of the releases may support the individuals' claims if the releases or failures to notify were not authorized or approved by EPA.157 However, the complaint and EPA orders were insufficient for the court to determine the preemption issue.

Federal Water Pollution Control Act — State Certification

[] North Carolina v. Federal Energy Regulatory Commission.158 The D.C. Circuit held that a power company is not required to obtain Federal Water Pollution Control Act (FWPCA)159 § 401(a)(1) certification from North Carolina before obtaining a Federal Energy Regulatory Commission license amendment that allows the company to add an intake pipeline structure to a power project in a lake that is partly within the state's borders.160 In effect, the D.C. Circuit, using an overly narrow construction of § 401's definition of discharge, held that the requested license amendment would not result in any discharge, which is a condition required under § 401 for the state certification provision to apply. The North Carolina case has the potential to lead to various water quality problems. In this case, for example, the withdrawal of water at 60 million gallons per day could increase water temperatures, decrease dissolved oxygen levels, concentrate contaminants, and increase saltwater intrusion at the lake.161 If license amendments do not require state certification in these situations, the water quality degradation that may occur in this case is likely to occur at other sites. Such a result is surely inapposite to Congress' intent in the FWPCA.

FWPCA — Environmental Crimes

[] United States v. West Indies Transport, Inc.162 The Third Circuit upheld the convictions and sentences of two transporting companies and their chief operating officer for visa fraud, environmental crimes, conspiracy, and racketeering.

The defendants were charged with and convicted of violating the FWPCA for severing rebar and concrete from a barge and dumping them into a bay and lagoon, and projecting sand and paintchip residue into the bay. The court noted that barges are "floating craft" falling under the definition of point source.163 The bay and lagoon are navigable waters of the United States.164 And rebar, concrete, sand, and paintchips are pollutants.165 Therefore, the defendants' actions constituted the addition of a pollutant to navigable waters from a point source.166 The court also upheld defendants' convictions for discharging untreated sewage into the bay from their barge, and for violating the Rivers and Harbors Act167 by intentionally building an unauthorized large dock to conduct business activities.168

FWPCA — Wetlands

[] United States v. Banks.169 In a case involving a property owner's alleged discharges to wetlands, the Eleventh Circuit upheld the district court's determination that the property owner's lands were wetlands adjacent to navigable waters by virtue of groundwater hydrological connection.170 Experts testified that a hydrological connection exists between the property owner's lands and two waterway channels.171 The court also held that the property owner failed to show that his discharge activities were permissible under nationwide permit 26.172 The U.S. Army Corps of Engineers' interpretation of its own regulations is entitled to deference, and the property owner failed to carry his burden of persuasion on the issue.173 In addition, the five-year statute of limitations in 28 U.S.C. § 2462 does not apply when the government is seeking equitable relief in its official enforcement capacity.174

[28 ELR 10587]

Wetlands — Swampbuster Program

[] Gunn v. U.S. Department of Agriculture.175 A farmer brought this action to challenge a determination that parts of his farmland are converted wetlands that could not be farmed without losing eligibility for certain farm benefits under the Food Security Act Swampbuster Program.176 The Eighth Circuit upheld the U.S. Department of Agriculture's (USDA's) determination that 28.2 acres of the farmer's land are converted wetlands and, therefore, cannot be farmed without the farmer losing eligibility for the benefits.177 The USDA's Swampbuster regulations are reasonable interpretations of any statutory ambiguities with respect to converted wetlands.178 The court also held that the farmer's land did not become converted until 1992. Therefore, the farmer did not quality for the exemption for wetlands converted before 1985.179 The court further held that the conversion did not qualify for the "outside agent" exemption, because the farmer was responsible for the conversion.180

Endangered Species Act — Commerce Clause

[] National Ass'n of Home Builders v. Babbitt.181 In this case, a county and an association of homebuilders brought suit claiming that Endangered Species Act (ESA)182 § 9(a)(1)'s application to the Delhi Sands Flower-Loving Fly, which exists only in an eight-mile radius in California, exceeds Congress' Commerce Clause powers.183 The U.S. Fish and Wildlife Service (FWS) placed the fly on the endangered species list.184 This action caused the county to modify the construction of a hospital. Then, the FWS determined that an intersection expansion proposed after the modification was approved would likely cause a taking of the fly.185 At that point, the county and association filed suit.

The district court held that the application of ESA § 9(a)(1) to the fly is a valid exercise of Congress' Commerce Clause power.186 The D.C. Circuit affirmed.187 The court first held that § 9(a)(1) is clearly not a regulation of the instrumentalities of interstate commerce or of persons or things in interstate commerce.188 However, application of § 9(a)(1) to the fly is a proper exercise of Congress' power over channels of interstate commerce for two reasons.189 First, ESA § 9(a)(1) is necessary to control the transport of endangered species in interstate commerce.190 The court compared the prohibition against taking endangered species to the prohibition against the transfer and possession of machine guns.191

Second, the prohibition against taking endangered species is permitted to keep the channels of interstate commerce free from immoral and injurious uses.192 Congress is using this authority

to prevent the eradication of an endangered species by a hospital that is presumably being constructed using materials and people from outside the state and which will attract employees, patients, and students from both inside and outside the state. Thus, like regulations preventing racial discrimination or labor exploitation, regulations preventing the taking of endangered species prohibit interstate actors from using the channels of interstate commerce to "promot[e] or spread[] evil, whether of a physical, moral or economic nature."193

The court then held that ESA § 9(a)(1)'s application to the fly also falls under the category of an activity that substantially affects commerce. The court referred to the ESA's legislative history, which reflects the value of preserving genetic diversity and the potential for future commerce related to or derived from that diversity.194 The court then noted that Congress could rationally conclude that ESA § 9 substantially affects interstate commerce by preventing the destruction of biodiversity.195 Almost one-half of all threatened and endangered species are found only in one state, and each time an extinction occurs, the pool of wild species diminishes.196 This has a substantial effect on interstate commerce because natural resources that could otherwise be used for commercial resources are diminished.197 ESA § 9 also controls the adverse effects of interstate competition that would result from states' lowering endangered species protection standards in order to attract development.198

This case is a significant victory for species protection in the United States. It affirms the government's power to provide protection for threatened and endangered species that might not be protected by another authority. Without Congress' ability to regulate the taking of endangered species, there would likely be a "race to the bottom" among many [28 ELR 10588] states that would lead to a much greater loss of biodiversity in the United States.

ESA — Takings

[] Sierra Club v. City of San Antonio.199 In this case, the Sierra Club sued the city of San Antonio for violating the ESA through its withdrawals of water from the Edwards Aquifer in Texas. The Sierra Club claimed that the city's withdrawals were taking endangered species.200 The district court granted the Sierra Club a preliminary injunction, ordering limitations on pumping based on spring flows.201 On appeal, the Fifth Circuit vacated the preliminary injunction on the grounds that the Sierra Club did not establish a like lihood of success on the merits because abstention based on the Edwards Aquifer Act appeared so manifestly warranted.202

The Edwards Aquifer Act can be characterized as a comprehensive state regulatory scheme. It gives the Edwards Aquifer Authority the power to manage, conserve, preserve, and protect the aquifer.203 The aquifer authority is also required to develop comprehensive management plans and to protect endangered species.204 Moreover, management of the aquifer is vitally important to the state. And the ESA does not suggest that abstention is to be avoided in cases brought under it.205

This case creates a problematic situation of federal environmental law violations going unpunished. State environmental regulations, with straw comprehensive management plans in place, should not have the ability to stymie valid federal environmental law enforcement. The court held that a state's management program does not have to be fully in place for abstention to be appropriate. However, in this case, the aquifer authority did not even have measures in place to deal with the emergency situation.

Surface Mining Control and Reclamation Act

[] Molinary v. Powell Mountain Coal Co.206 The Fourth Circuit held that the Surface Mining Control and Reclamation Act (SMCRA)207 § 520(f) citizen suit provision creates a federal cause-of-action for the recovery of damages resulting from violations of state regulations that are part of the state's DOI-approved surface coal mining and reclamation regulatory program.208

Constitutional Law — Fourth Amendment

[] United States v. Rapanos.209 In deciding this environmental search and seizure case, the Sixth Circuit held that, under the open fields doctrine,210 state environmental agency officers may enter a landowner's property to conduct a warrantless inspection of wetlands without violating the landowner's Fourth Amendment rights.211 The issue arose after the district court granted a new trial on the grounds that it was plain error to allow the prosecution to ask the landowner if he was practicing concealment by not letting state environmental agency officers onto his property. The district court found that the questioning impermissibly infringed on the landowner's Fourth Amendment rights.212

The Sixth Circuit noted that unless the landowner had a Fourth Amendment right to prevent the agency officers from coming onto the property, it was not plain error to allow the questioning.213 The court then analyzed the open fields doctrine and concluded that the property fell under the doctrine, and that the landowner did not have a Fourth Amendment right to prevent the agency officers' entry. The property includes 175 acres, with no buildings, and is bordered by highways.214 Additionally, the land is almost entirely denuded of trees and other vegetation.215 Moreover, the Supreme Court has defined open fields so broadly that even property that is neither open nor a field can be treated as an open field.216 The court also held that the landowner failed to present evidence that the agency officers were attempting a "full scale seizure activity."217

[] State v. Electronic Plating Co.218 In this Fourth Amendment search and seizure case, an Illinois appellate court held that a state agency did not violate the Fourth Amendment by taking wastewater samples, without a warrant, from a sewer connection beneath the defendant-appellee's building.219

Constitutional Law — Commerce Clause

[] Eastern Kentucky Resources v. Magoffin County Fiscal Court.220 During the 1997-1998 Term, the Court denied review in a few Commerce Clause cases concerning solid waste disposal regulation. In Eastern Kentucky Resources, the Sixth Circuit held that Kentucky's solid waste disposal program, which requires the identification of additional capacity for out-of-area waste before a plan is approved, does not violate the Commerce Clause.221 The program did not discriminate facially222 or purposefully223 against out-of-state [28 ELR 10589] commerce, nor did the program have a discriminatory effect on interstate commerce.224 Furthermore, Kentucky's interests in the health and welfare of its residents were clearly legitimate and outweighed any burdens on interstate commerce.225

[] Waste Management, Inc. v. Nashville.226 In this case, the Sixth Circuit held that county regulations governing the disposal of solid waste generated within a county's boundaries discriminate against interstate commerce.227 The case was brought by a licensed waste collector to challenge three provisions of the county regulations: the flow control provision, the disposal fee provision, and the passenger vehicle and pickup truck ordinance.228 The flow control provision required all residential waste to be disposed of at a county waste-to-energy facility. The Sixth Circuit held that the flow control provision was facially discriminatory because it prevents the waste collector from disposing of residential waste at a cheaper facility and threatens the waste collector's own dump site.229 In addition, the court found that there were other means for the county to advance its local interests.230

The court also found the disposal fee provision, which imposed a fee on waste collectors who dispose of waste at a facility outside of the county's boundaries, to be facially discriminatory because it treats county and noncounty interests differently.231 Last, the court remanded the waste collector's claim that the passenger vehicle and pickup truck ordinance, which required disposal facilities to accept waste from passenger vehicles and pickup trucks either free of charge or for five dollars, was a taking.232

Oil Pollution Act233

[] National Shipping Co. of Saudi Arabia v. Moran Trade Corp. of Delaware.234 In this case, the Fourth Circuit affirmed a district court decision holding a tugboat owner negligent and, therefore, liable under the Oil Pollution Act (OPA) for $ 500,000 in costs incurred cleaning up an oil spill.235 The $ 500,000 amounted to approximately one-half of the total cleanup cost.236 The court also held that the plaintiff cargo vessel cannot recover the excess costs through exceptions to the OPA's liability cap because the tugboat was not found to be grossly negligent or willful in its misconduct.237 In addition, the cargo vessel cannot recoup excess costs through state-law claims because the OPA does not provide for such recovery, and allowing such recovery would render the OPA's liability cap meaningless.238

Toxic Torts — Expert Testimony

[] Schudel v. General Electric Co.239 This case was brought by workers involved in a project to clean up PCBs. The workers alleged that they developed various neurological and respiratory problems from exposure to trichloroethane (TCA) and perchloroethylene (perc). The Ninth Circuit held that the neurological causation testimony of three expert witnesses in a toxic tort case is inadmissible under Daubert v. Merrell Dow Pharmaceuticals.240 Two experts met Daubert's relevance requirement, but did not meet Daubert's reliability requirement.241 The first expert did not show that it was scientifically acceptable to draw general conclusions about the neurotoxicity of TCA and perc from studies of other chemicals.242 Testimony as to the differences in length and intensity of exposure required extrapolation to make the studies relied on relevant, and there was no showing that the necessary extrapolation was scientifically acceptable.243 The second expert's testimony suffered similar deficiencies. The third expert failed to meet Daubert's relevance requirement.244 She testified that it was only a possibility, not a probability, that the employees suffered brain damage from exposure to solvents at the facility.245 She also could not establish a specific cause and effect relationship between the exposure and the health problems, and instead relied on the whole person aggravation theory of causation without establishing that the theory had a scientific basis.246

NEPA — Department of Transportation Act

[] Alaska Center for the Environment v. Armbrister.247 The Ninth Circuit held that the Federal Highway Administration (FHwA) complied with Department of Transportation Act248 § 4 and NEPA when it approved the construction of an access road from Portage to Whittier, Alaska.249 It was not arbitrary and capricious for the FHwA to reject an alternative that would not satisfy the purpose of the access road project.250 And the final environmental impact statement thoroughly examined the relative safety risks associated with the road and rail system alternatives, and specified measures to lessen the safety risks.251

[28 ELR 10590]

Federal Insecticide, Fungicide, and Rodenticide Act — Preemption

[] Kuiper v. American Cyanamid Co.252 In Kuiper, a farming family sued a pesticide manufacturer over crop damage after on-label and alleged off-label statements were made that the pesticide would not harm follow corn crops.253 The Seventh Circuit held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)254 preempted a family's negligence claims against the pesticide manufacturer.255 In addition, the statute of limitations barred family's fraudulent misrepresentation claims against the manufacturer, because the family had enough information to bring the suit within the limitations period.256

The court first noted that it was not bound by a Wisconsin Supreme Court holding that FIFRA did not preempt a negligent misrepresentation claim. The Wisconsin court's holding did not have issue preclusive effect.257 The Seventh Circuit then noted that it had previously held that FIFRA preempts state-law claims for labeling and packaging defects.258 However, the family claimed their case was different because it involved reliance on off-label representations by the manufacturer's representative.259 The court rejected this argument because the alleged misrepresentations that the family relied on essentially repeated the rotational crop restrictions on the pesticide's label.260 Thus, the challenge to the alleged misrepresentations was a challenge to the label itself. The family also argued that the off-label representations were substantially different than the label's representations because the label's rotational crop restriction referred only to adverse effects on the environment and not to corn.261 The court rejected this argument because FIFRA's definition of environment includes all plants.262 The court also held that even if EPA exceeded its authority in approving the pesticide's label, FIFRA would still preempt the claim.263

This case seems to follow the congressional mandate in FIFRA that state-law claims be preempted. The pesticide manufacturer's attorney noted that the case is a victory for the congressional intent that pesticide labels be uniform.264 The plaintiffs' attorney expressed disappointment that the case was denied review, noting that conflicts over FIFRA preemption exist between state and federal courts.265

The 1998-1999 Term

At this time, the extent to which the Supreme Court will be active in the environmental realm during its 1998-1999 Term is uncertain. The Court has granted review in Del Monte Dunes at Monterey, Ltd. v. City of Monterey, which involves an inverse condemnation claim over the denial of a permit to develop oceanfront property.266 The Court also granted review in Mille Lacs Band of Chippewa Indians v. Minnesota, in which the Eighth Circuit held that various Native American bands retain their right to hunt, fish, and gather in the Minnesota portion of territory they ceded in an 1837 treaty.267 A number of other environmental cases have been docketed, and more cases undoubtedly will be docketed. It remains to be seen whether the Court will agree to hear those cases. However, based on the 1997-1998 Term, one can only assume that the Court will remain active in the environmental area in the coming year.

1. See Kim I. Eisler, In Life and Law, Brennan Had the Common Touch, LEGAL TIMES, July 28, 1997, at 12; Harvey Berkman, A Legacy Beyond the Penning of 1,300 Opinions, NAT'L L.J., Aug. 4, 1997, at A12.

2. EDWARD LAZARUS, CLOSED CHAMBERS; THE FIRST EYEWITNESS ACCOUNT OF THE EPIC STRUGGLES INSIDE THE SUPREME COURT (1998); see also Former Clerk's Book Looks Inside the Court, NAT'L L.J., May 18, 1998, at A28.

3. See H.R. 3211, 105th Cong. § 2 (1998); see also Tony Mauro, Arlington Burial May Elude Justices, LEGAL TIMES, May 11, 1998, at 7.

4. See Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003, 28 ELR 20434 (1998). For an analysis of the Steel Co. decision, see Jim Hecker, EPCRA Citizen Suits After Steel Co. v. Citizens for a Better Environment, 28 ELR 10306, 10307 (June 1998).

5. See General Elec. Co. v. Joiner, 118 S. Ct. 512, 28 ELR 20227 (1997). For a comprehensive discussion of expert testimony in toxic tort litigation, see Christopher H. Buckley Jr. & Charles H. Haake, Separating the Scientist's Wheat From the Charlatan's Chaff: Daubert's Role in Toxic Tort Litigation, 28 ELR 10293 (June 1998).

6. See United States v. Bestfoods, 118 S. Ct. 1876, 28 ELR 21225 (1998). Although the Court remanded the case for a liability determination, it hinted that there was sufficient evidence to hold the parent corporation liable. "The adopted standard is a middle-of-the-road approach that creates a difficult burden of proof for government lawyers but does not automatically shield a parent company from financial responsibility in disputes over clean-up liability." Parent Companies Aren't Completely Shielded, NAT'L L.J., June 22, 1998, at B17.

7. For summaries of all the Court's actions during the 1997-1998 Term, see "In the Supreme Court" at 27 ELR 10541 (Oct. 1997); 27 ELR 10595 (Nov. 1997); 27 ELR 10648 (Dec. 1997); 28 ELR 10049 (Jan. 1998); 28 ELR 10102 (Feb. 1998); 28 ELR 10136 (Mar. 1998); 28 ELR 10222 (Apr. 1998); 28 ELR 10271 (May 1998); 28 ELR 10338 (June 1998); 28 ELR 10385 (July 1998); 28 ELR 10456 (Aug. 1998). This Comment does not discuss Phillips v. Washington Legal Found., 118 S. Ct. 1925 (1998), or Eastern Enterprises v. Apfel, 118 S. Ct. 2131 (1998). These takings cases, however, may have significant impacts on environmental law.

8. See Seif v. Chester Residents Concerned for Quality Living, 67 U.S.L.W. 3129 (U.S. Aug. 17, 1998) (No. 97-1620). This case is briefly discussed in the "Summary Rulings" section infra.

9. 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

10. Id. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

11. 16 U.S.C. §§ 1600-1687, ELR STAT. NFMA §§ 2-8.

12. See Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003, 28 ELR 20434 (1998); United States v. Bestfoods, 118 S. Ct. 1876, 28 ELR 21225 (1998); Ohio Forestry Ass'n v. Sierra Club, 118 S. Ct. 1665, 28 ELR 21119 (1998).

13. See General Elec. Co. v. Joiner, 118 S. Ct. 512, 28 ELR 20227 (1997).

14. United States v. Beggerly, 118 S. Ct. 1862, 28 ELR 21290 (1998).

15. See Montana v. Crow Tribe of Indians, 118 S. Ct. 1650, 28 ELR 21159 (1998); South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789, 28 ELR 20293 (1998).

16. 118 S. Ct. 1003, 28 ELR 20434 (1998).

17. See, e.g., Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 18 ELR 20142 (1987).

18. Just about six years ago, Justice Scalia penned a seminal standing opinion in Lujan v. Defenders of Wildlife. 504 U.S. 555, 22 ELR 20913 (1992). In Lujan, Justice Scalia set forth the three constitutional requirements for standing: (1) an injury-in-fact that is (2) fairly traceable to the plaintiff's injury, and (3) a likelihood that the relief requested will redress the alleged injury. See id. at 560, 22 ELR at 20915.

19. Justice Stevens' concurrence is discussed after the majority opinion.

20. Citizens for a Better Env't v. Steel Co., 90 F.3d 1237, 26 ELR 21408 (7th Cir. 1996).

21. Steel Co., 118 S. Ct. at 1020, 28 ELR at 20439.

22. See id. at 1003, 28 ELR at 20434, citing 42 U.S.C. §§ 11022, 11023, ELR STAT. EPCRA §§ 312, 313.

23. See Steel Co., 118 S. Ct. at 1009, 28 ELR at 20434. The 60-day notice period refers to a requirement in most citizen suit provisions that the citizen plaintiff provide the alleged violator, the state environmental agency, and EPA with notice of the alleged violation. The plaintiff must then wait 60 days before filing a complaint. The 60-day notice period gives the alleged violator an opportunity to achieve compliance. The notice period also gives the state environmental agency and EPA the opportunity to bring an enforcement action against the alleged violator. For an example of a 60-day notice period provision, see 42 U.S.C. § 11046(d), ELR STAT. EPCRA § 326(d).

24. See Steel Co., 118 S. Ct. at 1009, 28 ELR at 20434.

25. See id.

26. See id.

27. See id. at 1009, 28 ELR at 20435.

28. See id.

29. Id. "If Justice Stevens is correct that all cause-of-action questions may be regarded as jurisdictional questions, and thus capable of being decided where there is no genuine case or controversy, it is hard to see what is left of that limitation in Article III." Id. at 1012, 28 ELR at 20435-36.

30. Id. at 1016, 28 ELR at 20437.

31. See id. at 1018, 28 ELR at 20438.

The complaint asks for (1) a declaratory judgment that petitioner violated EPCRA; (2) authorization to inspect periodically petitioner's facility and records (with costs borne by petitioner); (3) an order requiring petitioner to provide respondent copies of all compliance reports submitted to the EPA; (4) an order requiring petitioner to pay civil penalties of $ 25,000 per day for each violation of §§ 11022 and 11023; (5) an award of all respondent's "costs, in connection with the investigation and prosecution of this matter, including reasonable attorney and expert witness fees, as authorized by Section 326(f) of [EPCRA]"; and (6) any such further relief as the court deems appropriate.

Id.

32. See id.

33. [A]lthough a suitor may derive great comfort and joy from the fact that the United States Treasury is not cheated, that a wrongdoer gets his just deserts [sic], or that the nation's laws are faithfully enforced, that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.

Id. at 1019, 28 ELR at 20438.

34. Id. at 1020, 28 ELR at 20439.

35. Justices Breyer, O'Connor, and Ginsburg also penned concurrences in the case. Justice Breyer noted that federal courts "often" and "typically" should decide standing questions at the outset of a case. However, Justice Breyer opined that "the Constitution does not impose a rigid judicial 'order of operations,' when doing so would cause serious practical problems." Id. at 1021, 28 ELR at 20439.

36. See id. at 1022, 28 ELR at 20440.

37. See id. at 1028, 28 ELR at 20442.

38. See id. at 1032, 28 ELR at 20444.

39. See id.

40. The effects of this decision already can be seen in Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., in which the Fourth Circuit vacated on mootness grounds a district court award of civil penalties to environmental groups in a citizen suit against a company for FWPCA violations. The court held that, pursuant to Steel Co., the "action is moot because the only remedy currently available to [the environmental groups] — civil penalties payable to the government — would not redress any injury [the environmental groups] have suffered." Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., No. 97-1246, 1998 WL 394993, at *2 (4th Cir. July 16, 1998).

41. Jim Hecker, Citizen Standing to Sue for Past EPCRA Violations, 28 ELR 10561 (Nov. 1997).

42. Jim Hecker, EPCRA Citizen Suits After Steel Co. v. Citizens for a Better Environment, 28 ELR 10306, 10307 (June 1998).

43. 118 S. Ct. 1876, 28 ELR 21225 (1998).

44. CERCLA liability is an oft-debated issue for many reasons. One reason the Court notes is that CERCLA "'unfortunately, is not a model of legislative draftsmanship.'" Bestfoods, 118 S. Ct. at 1882, 28 ELR 21226, quoting Exxon Corp. v. Hunt, 475 U.S. 355, 363, 16 ELR 20396, 20397 (1986).

45. See id. at 1881, 28 ELR at 21225.

46. See id. at 1883, 28 ELR at 21226.

47. See id.

48. See id.

49. See id.

50. See id.

51. See id.

52. See id.

53. See id. at 1884-85, 28 ELR at 21227.

54. See id. at 1885, 28 ELR at 21227.

55. Id. at 1885-86, 28 ELR at 21227.

56. Id. at 1886, 28 ELR at 21228 (citing Mine Workers v. Coronado Coal Co., 259 U.S. 344, 395 (1922)).

57. See id. at 1886, 28 ELR at 21228.

58. See id. at 1887, 28 ELR at 21228.

59. See id.

60. See id.

61. See id. at 1888, 28 ELR at 21229.

62. [I]t cannot be enough to establish liability here that dual officers and directors made policy decisions and supervised activities at the facility. The Government would have to show that, despite the general presumption to the contrary, the officers and directors were acting in their capacities as [parent] officers and directors, and not as [subsidiary] officers and directors, when they committed those acts.

Id.

63. See id. at 1889, 28 ELR at 21229. The Court did not give examples of what constitutes "eccentric" actions, except to note the district court's finding that an agent of the parent corporation alone played a conspicuous part in dealing with toxic risks at the plant. This agent worked only for the parent corporation. See id. at 1890, 28 ELR at 21229.

64. "'At the end of the day it's going to be hard for the United States to win these cases because the court has given plaintiffs such a small keyhole for success.'" Limited Liability for Corporations Affirmed As High Court Remands 'Bestfoods' Case, Daily Env't Rep. (BNA), June 9, 1998, at A-5.

65. High Court Narrows Scope of Parent Firms' Operator Liability, INSIDE EPA'S SUPERFUND REP., June 9, 1998, at 3 (quoting unnamed attorney).

66. 118 S. Ct. 1665, 28 ELR 21119 (1998).

67. 42 U.S.C. §§ 4321-4347, ELR STAT. NEPA §§ 2-209.

68. 5 U.S.C. §§ 500-596, available in ELR STAT. ADMIN. PROC.

69. Ohio Forestry, 118 S. Ct. at 1669, 28 ELR at 21120.

70. See Sierra Club v. Robertson, 845 F. Supp. 485, 25 ELR 20052 (S.D. Ohio 1994).

71. Those requirements are: "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented." Ohio Forestry, 118 S. Ct. at 1670, 28 ELR at 21121.

72. Id.

73. See id. at 1671, 28 ELR at 21121.

74. Id.

75. See id. at 1671-72, 28 ELR at 21121.

76. See id. at 1672, 28 ELR at 21121.

77. See id. at 1672, 28 ELR at 21122.

78. Id. at 1671, 28 ELR at 21121.

79. 118 S. Ct. 512, 28 ELR 20227 (1997).

80. 509 U.S. 579, 23 ELR 20979 (1993).

81. See Joiner v. General Electric Co., 864 F. Supp. 1310 (N.D. Ga. 1994).

82. See Joiner v. General Electric Co., 78 F.3d 524, 26 ELR 20939 (1996).

83. See 118 S. Ct. at 517, 28 ELR at 20228.

84. See id.

85. See id.

86. See id.

87. See id.

88. See id. at 518, 28 ELR at 20228. "The studies involved infant mice that had developed cancer after being exposed to PCBs. The infant mice in the studies had had massive doses of PCBs injected" into them. Joiner's alleged exposure to PCBs was in a much smaller concentration. Further, "[n]o study demonstrated that adult mice developed cancer after being exposed to PCBs. One of the experts admitted that no study had demonstrated that PCBs lead to cancer in any other species." Id.

89. Id.

90. See id. at 518-19, 28 ELR at 20228-29. Two of the studies failed to support a causal link between PCBs and cancer. A third study did not mention PCBs. And the fourth study included a group that had been exposed to numerous potential carcinogens. See id.

91. See id. at 519, 28 ELR at 20229. "[N]othing in either Doubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert." Id.

92. 118 S. Ct. 1862, 28 ELR 21290 (1998).

93. See 118 S. Ct. at 1864, 28 ELR at 21291.

94. See id.

95. See id.

96. See id. at 1865, 28 ELR at 21291.

97. See id.

98. See id.

99. See id.

100. See id.

101. Justice Stevens, joined by Justice Souter, also filed a concurring opinion.

102. See 118 S. Ct. at 1865, 28 ELR at 21291.

103. See id. at 1868, 28 ELR at 21292.

104. See id.

105. See id.

106. See id.

107. See id.

108. 118 S. Ct. 789, 28 ELR 20293 (1998).

109. Yankton Sioux Tribe v. Southern Mo. Waste Management Dist., 99 F.3d 1439, 27 ELR 20374 (8th Cir. 1996).

110. See 118 S. Ct. at 805, 28 ELR at 20299.

111. See id. at 797, 28 ELR at 20295.

112. See id.

113. See id.

114. See id. at 798, 28 ELR at 20296 (citing Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977)).

115. See id. at 798, 28 ELR at 20296.

116. See id.

117. See id. (citing DeCouteau v. District County Court for Tenth Judicial District, 420 U.S. 425 (1975)). Furthermore, the 1894 Act is distinguishable from other surplus land Acts that the Court construed as maintaining reservation boundaries. See 118 S. Ct. at 798, 28 ELR at 20296.

118. 118 S. Ct. at 799, 28 ELR at 20296 (quoting State v. Greger, 559 N.W.2d 854 (S.D. 1997)).

119. See id.

120. See id. at 801, 28 ELR at 20297.

121. See id. at 802, 28 ELR at 20298.

122. See id. at 803, 28 ELR at 20298.

123. See id. at 804, 28 ELR at 20299.

124. See id.

125. 118 S. Ct. 1650, 28 ELR 21159 (1998).

126. See id. at 1653, 28 ELR at 21160.

127. See id. at 1654, 28 ELR at 21160.

128. See id. at 1661, 28 ELR at 21163.

129. See id.

130. See id.

131. See id. at 1662, 28 ELR at 21163.

132. See id. at 1665, 28 ELR at 21165.

133. 67 U.S.L.W. 3129 (U.S. Aug. 17, 1998) (No. 97-1620).

134. See Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925, 28 ELR 20487 (3d Cir. 1997), cert. granted sub. nom. Seif v. Chester Residents Concerned for Quality Living, 66 U.S.L.W. 3777 (U.S. June 8, 1998) (No. 97-1620).

135. See id. at 927, 28 ELR at 20487.

136. 124 F.3d 1187, 27 ELR 21465 (10th Cir. 1997), cert. denied sub. nom. Browning-Ferris v. Sun Co., 118 S. Ct. 1045 (1998).

137. See id. at 1194, 27 ELR at 21468. Petitioners Browning-Ferris and other companies argued that the Tenth Circuit's holding "permits private plaintiffs to evade congressional filing restrictions on contribution actions," and that "the ruling resurrects the federal common law right to contribution that existed before the Superfund Amendments and Reauthorization Act of 1986 displaced that aspect of federal common law." U.S. High Court Decides Not to Review Tenth Circuit Decision on Limitations Period, Daily Env't Rep. (BNA), Feb. 24, 1998, at A-1.

138. See 124 F.3d at 1190, 27 ELR at 21466.

139. See id.

140. See id. at 1191, 27 ELR at 21466.

141. See id. at 1191-92, 27 ELR at 21467.

142. See id. at 1192, 27 ELR at 21467.

143. 118 F.3d 1298, 27 ELR 21211 (9th Cir. 1997), cert. denied, 118 S. Ct. 1045 (1998).

144. See id. at 1300, 27 ELR at 21211.

145. See id.

146. See id. at 1301, 27 ELR at 21212.

147. See id. at 1302, 27 ELR at 21212.

148. See id. at 1303, 27 ELR at 21213.

149. See id.

150. See id.

151. 42 U.S.C. §§ 6901-6922k, ELR STAT. RCRA §§ 1001-11012.

152. Cavallo v. Star Enterprise, 100 F.3d 1150, 27 ELR 20428 (4th Cir. 1996), cert. denied, 118 S. Ct. 684 (1998).

153. See id. at 1152, 27 ELR at 20432.

154. See id. at 1152, 27 ELR at 20428.

155. See id. at 1153, 27 ELR at 20429.

156. Id. at 1157, 27 ELR at 20431.

157. See id.

158. 112 F.3d 1175, 27 ELR 20929 (D.C. Cir. 1997), cert. denied, 118 S. Ct. 1036 (1998), cert. denied sub. nom. Roanoake River Basin Ass'n v. Federal Energy Regulatory Comm'n, 118 S. Ct. 1037 (1998).

159. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

160. See 112 F.3d at 1194, 27 ELR at 20937.

161. See U.S. Supreme Court Denies Review on State Water Quality Certification, Daily Env't Rep. (BNA), Feb. 24, 1998, at A-1.

162. 127 F.3d 299, 28 ELR 20202 (3d Cir. 1997), cert. denied sub. nom. West Indies Transport, Inc. v. United States, 118 S. Ct. 700 (1998).

163. See id. at 308, 28 ELR at 20205.

164. See id.

165. See id.

166. See id.

167. 33 U.S.C. §§ 401-467e.

168. See 127 F.3d at 310, 28 ELR at 20206.

169. 115 F.3d 916, 28 ELR 20060 (11th Cir. 1997), cert. denied sub. nom. Banks v. United States, 118 S. Ct. 1341 (1998).

170. See id. at 921, 28 ELR at 20063. Petitioner Banks argued that if the Eleventh Circuit ruling stands "[t]hen every damp spot in the entire Southeastern United States, the Eastern Seaboard, the Great Lakes states, states bordering navigable rivers, and the states bordering the Gulf of Mexico and Pacific Ocean is a wetland 'adjacent to' navigable waters of the United States." Supreme Court Declines to Decide if Discharges to Ground Water Covered, 28 Env't Rep. (BNA) 1802 (Jan. 23, 1998).

171. See 115 F.3d at 921, 28 ELR at 20063.

172. See id. at 922, 28 ELR at 20063.

173. See id. at 921, 28 ELR at 20062.

174. See id. at 919, 28 ELR at 20062.

175. 118 F.3d 1233, 27 ELR 21331 (8th Cir. 1997), cert. denied, 118 S. Ct. 1042 (1998).

176. 16 U.S.C. §§ 3821-3822.

177. See 118 F.3d at 1235, 28 ELR at 21332.

178. See id. at 1236, 28 ELR at 21332.

179. See id. at 1238, 28 ELR at 21333.

180. See id. at 1239, 28 ELR at 21333-34.

181. 130 F.3d 1041, 28 ELR 20403 (D.C. Cir. 1997), cert. denied, 118 S. Ct. 2340 (June 22, 1998).

182. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

183. See 130 F.3d at 1043, 28 ELR at 20403.

184. See id.

185. See id.

186. See National Ass'n of Home Builders v. Babbitt, 949 F. Supp. 1, 27 ELR 20707 (D.D.C. 1996)

187. See 130 F.3d at 1043, 28 ELR at 20403.

188. See id. at 1046, 28 ELR at 20404-05.

189. See id. at 1046, 28 ELR at 20405.

190. See id.

191. [I]t is necessary to regulate possession of machineguns in order to effectively regulate the interstate traffic in machineguns because it is impossible to sell machineguns in interstate commerce without first possessing them. Similarly, the prohibition on "taking" endangered species is properly classified as a first category regulation [the use of interstate channels of commerce] because one of the most effective ways to prevent traffic in endangered species is to secure the habitat of the species from predatory invasion and destruction.

Id. at 1047, 28 ELR at 20405.

192. See id. at 1048, 28 ELR at 20405.

193. See id. at 1048, 28 ELR at 20406 (quoting North American Co. v. S.E.C., 327 U.S. 686, 705 (1946)).

194. See id. at 1052, 28 ELR at 20407.

195. See id.

196. See id. at 1052-53, 28 ELR at 20407-08.

197. See id. at 1053, 28 ELR at 20408.

198. See id. at 1054, 28 ELR at 20408.

199. 112 F.3d 789, 27 ELR 21051 (5th Cir. 1997), cert. denied, 118 S. Ct. 879 (1998).

200. See id. at 792, 27 ELR at 21052.

201. See id.

202. See id. at 793, 27 ELR at 21053.

203. See id. at 794, 27 ELR at 21053.

204. See id.

205. See id. at 798, 27 ELR at 21055.

206. 125 F.3d 231, 28 ELR 20035 (4th Cir. 1997), cert. denied, 118 S. Ct. 1056 (1998).

207. 30 U.S.C. §§ 1201-1328, ELR STAT. SMCRA §§ 101-908.

208. See 125 F.3d at 232, 28 ELR at 20035.

209. 115 F.3d 367, 27 ELR 20961 (6th Cir. 1997), cert. denied sub. nom. Rapanos v. United States, 118 S. Ct. 304 (1997).

210. The open fields doctrine "permits police officers to enter and search a field without a warrant. The term 'open fields' may include any unoccupied or undeveloped area outside of the curtilage." BLACK'S LAW DICTIONARY 1091 (6th ed. 1990).

211. See 115 F.3d at 374, 27 ELR at 20964.

212. See id. at 371, 27 ELR at 20963.

213. See id. at 372, 27 ELR at 20963.

214. See id. at 372, 27 ELR at 20964.

215. See id. at 373, 27 ELR at 20964.

216. See id.

217. See id. at 374, 27 ELR at 20964.

218. 683 N.E.2d 465 (Ill. App. Ct. 1997), cert. denied sub. nom. Electronic Plating Co. v. Illinois, 118 S. Ct. 1365 (1998).

219. See id. at 465.

220. 127 F.3d 532, 28 ELR 20251 (6th Cir. 1997), cert. denied, 118 S. Ct. 1512 (1998).

221. See id. at 545, 28 ELR at 20256.

222. See id. at 541, 28 ELR at 20254.

223. See id. at 543, 28 ELR at 20255.

224. See id. at 543, 28 ELR at 20256.

225. See id. at 545, 28 ELR at 20256.

226. 130 F.3d 731, 28 ELR 20243 (6th Cir. 1997), cert. denied sub. nom. Metropolitan Gov't of Nashville and Davidson County v. Waste Management, Inc. of Tenn., 118 S. Ct. 1560 (1998).

227. See id. at 737-38, 28 ELR at 20245.

228. See id. at 733, 28 ELR at 20243.

229. See id. at 736, 28 ELR at 20244.

230. See id.

231. See id. at 737, 28 ELR at 20245.

232. See id. at 738, 28 ELR at 20245.

233. 33 U.S.C. §§ 2701-2761, ELR STAT. OPA §§ 1001-7001.

234. 122 F.3d 1062, 27 ELR 21504 (4th Cir. 1997), cert. denied, 118 S. Ct. 1301 (1998).

235. See id.

236. See id.

237. See id. at 1062, 27 ELR at 21505.

238. See id. at 1062, 27 ELR at 21506.

239. 120 F.3d 991, 28 ELR 21506 (9th Cir. 1997), cert. denied, 118 S. Ct. 1560 (1998), cert. denied sub. nom. Hopkins v. General Electric Co., 118 S. Ct. 1561 (1998), cert. denied sub. nom. Carlson v. General Electric Co., 118 S. Ct. 1561 (1998).

240. 509 U.S. 579, 23 ELR 20979 (1993).

241. 120 F.3d at 997, 27 ELR at 21508.

242. See id.

243. See id.

244. See id.

245. See id.

246. See id.

247. 131 F.3d 1285, 28 ELR 20038 (9th Cir. 1997), cert. denied, 118 S. Ct. 1802 (1998).

248. 49 U.S.C. § 303(c), 23 U.S.C. § 138.

249. See 131 F.3d at 1287, 28 ELR at 20038.

250. See id. at 1289, 28 ELR at 20039.

251. See id.

252. 131 F.3d 656, 28 ELR 20314 (7th Cir. 1997), cert. denied, 118 S. Ct. 1839 (1998)

253. "A 'follow crop' is the crop that a farmer plants in a field following the previous planting season." Id. at 660 n.3, 28 ELR at 20315 n.3.

254. 7 U.S.C. §§ 136-136y. ELR STAT. FIFRA §§ 2-31.

255. See 131 F.3d at 666, 28 ELR at 20318.

256. See id. at 660, 28 ELR at 20315.

257. See id. at 661, 28 ELR at 20316.

258. See id. at 662, 28 ELR at 20316.

259. See id.

260. See id. at 663, 28 ELR at 20317.

261. See id. at 663-64, 28 ELR at 20317.

262. See id. at 664, 28 ELR at 20317.

263. See id. at 665, 28 ELR at 20318.

264. See Ruling Upholding FIFRA Preemption Denied Review by U.S. Supreme Court, Daily Env't Rep. (BNA), May 27, 1998, at A-8.

265. See id.

266. 95 F.3d 1422 (9th Cir. 1996), cert. granted sub. nom. Monterey v. Del Monte Dunes at Monterey, Ltd., 66 U.S.L.W. 3635 (U.S. Mar. 30, 1998) (No. 97-1235).

267. 124 F.3d 904, 28 ELR 20183 (8th Cir. Aug. 26, 1997), cert. granted sub. nom. Minnesota v. Mille Lacs Band of Chippewa Indians, 66 U.S.L.W. 3777 (June 8, 1998) (No. 97-1337).

28 ELR 10577 | Environmental Law Reporter | copyright © 1998 | All rights reserved