Galveston-Houston Association For Smog Prevention v. U.S. EPA

Aug 13: In the U.S. Court of Appeals, Fifth Circuit, Case No. 06-61030. Petitioner Galveston-Houston Association for Smog Prevention (GHASP) sought a review of the U.S. EPA's final rulemaking action approving the Mid-Course Review State Implementation Plan (MCR SIP) submitted by the State of Texas for the Houston-Galveston-Brazoria Severe Ozone Nonattainment Area (HGB area). Texas submitted the MCR SIP to satisfy one of the enforceable commitments contained in a previously approved State Implementation Plan (SIP) for the HGB area. GHASP argues that: (1) EPA acted arbitrarily and capriciously in approving the MCR SIP because it did not demonstrate attainment of specified emissions reductions; (2) EPA acted arbitrarily and capriciously when it relied on "weight of evidence" analysis to excuse modeled nonattainment; and (3) by approving the MCR SIP, the EPA violated the non-interference or anti-backsliding provision of the Clean Air Act.

The Appeals Court denied the petition for review and also denied an award of attorneys’ fees to GHASP. In part, the Appeals Court said, "Because the definition of reasonable further progress is defined within the statute, the question of whether the MCR SIP violates Section 110(l) turns on the meaning of 'would interfere.' The statute itself does not define 'would interfere.' Because Congress has not directly spoken on this issue, under Chevron step two we will defer to the EPA’s interpretation unless it is arbitrary or capricious.

"GHASP contends that the EPA must show that results under the MCR SIP are better than results under the 2001 SIP to comply with Section 110(l). However, nothing in the plain language of Section 110 (l) supports this interpretation. The EPA and BCCA Appeal Group in its amicus brief, urge this court to adopt the interpretation of interference accepted by the Sixth Circuit in Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), in which that court held that the EPA may approve a SIP revision 'unless the agency finds it will make air quality worse.' According to the EPA, under Section 110(l), the EPA’s approval of Texas’s MCR SIP does not constitute interference as long as the revisions to the SIP were properly substituted by new measures that would offset the effect of those measures removed from MCR SIP. Thus, changes to a SIP, either dropping measures or reducing measurement requirements, are not by themselves sufficient to prove interference. Rather, one must show that the substitute measures are not at least equivalent to the previous measures in achieving attainment. We find the EPA’s interpretation of Section 110(l) reasonable and thus refuse to substitute our judgment for that of the Agency’s."

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Village DePue IL v. Exxon Mobil

Aug 11: In the U.S. Court of Appeals, Seventh Circuit, Case No. 07-2311. The Village of DePue brought this action in Illinois state court against Exxon Mobile Corp., Viacom International, Inc. and CBS Broadcasting, Inc. (collectively, Exxon) involving cleanup of a contaminated site in the Village. Exxon removed the case to the district court under 28 U.S.C. § 1441. The district court determined that it had diversity jurisdiction and, upon Exxon’s motion, dismissed the Village’s claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

The Village of DePue filed its complaint against Exxon in Illinois state court. The complaint asserted that Exxon had violated and continued to be in violation of the Village’s nuisance ordinance. It sought three forms of relief: a judgment declaring that Exxon had violated the ordinance, daily fines of up to $750 for that alleged violation and injunctive relief requiring Exxon immediately to clean the site and have it removed from the NPL.

The district court agreed with Exxon and concluded that section 113(h) of CERCLA barred the Village’s legal challenges. Although noting that CERCLA contains “savings” provisions that preserve remedies under state and local law, the court held that, if such a law conflicts with a CERCLA-mandated remedial action, the bar of section 113(h) applied and deprived the court of jurisdiction until the remedial work was completed.

The district court held that the relief sought by the Village conflicted squarely with the detailed process mandated by the Consent Order and concluded that section 113(h) of CERCLA divested it of jurisdiction to hear the claims. The district court also held that the Village’s claims were preempted by Illinois law. It concluded that the claims conflicted with the process required by the Illinois EPA and its implementing regulations because the Village was seeking immediate and undefined completion of the cleanup at the site. Such relief, held the district court, would conflict with the considered and phased process outlined in the Illinois Hazardous Substances Pollution Contingency Plan (ICP) and implemented at the site via the Consent Order. Such interference, reasoned the court, was preempted by Illinois law. It therefore granted Exxon’s motion to dismiss the Village’s claims with prejudice.

The Appeals Court affirmed the judgment of the district court saying, "If the Village were permitted to apply its nuisance ordinance to force Exxon to complete immediately the cleanup of the site, on penalty of $750 per day for noncompliance, then it could prevent compliance with the measured cleanup process adopted by Illinois through the Consent Order under the authority of Illinois law. . . Such a result would frustrate the purpose of the Illinois Act, which permits the Illinois Attorney General to enter consent orders precisely like this one for the purpose of removing and remediating environmental hazards."

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