Chapter 2: Environmental Law - A Structural Overview

SEE OUR PHOTO TOUR FOR PICTURES FROM: 

 Madison v. Ducktown Sulphur, Missouri v. Illinois, and Citizens to Preserve Overton Park v. Volpe

Common Law Nuisance Suits: States Sue Over Global Warming (pp. 102-03)

As discussed in Note 6 on pp. 102-103 of the Casebook, a federal district judge dismissed on political question grounds a global warming nuisance suit filed against electric utilities by eight states.  This decision – Connecticut v. American Electric Power – has been appealed to the U.S. Court of Appeals for the Second Circuit.  Oral argument was held in June 2006, but the Second Circuit still has not released its decision as of August 2008.

The conventional explanation for the delay in issuing its decision was that the Second Circuit was waiting for the Supreme Court’s decision in Massachusetts v. EPA.  After that case was decided in April 2007, the Second Circuit asked the litigants in Connecticut v. American Electric Power to brief the impact of that decision.  Each side argued that the decision supported their position.  The argument by the plaintiff states may be viewed HERE.  The argument by the defendant electric utilities may be viewed HERE.  Links to the briefs filed in the Second Circuit are available HERE.

Liability for Oil Spills: Punitive Damages and the Exxon Valdez Spill (pp. 121-24)

On June 25, 2008, the U.S. Supreme Court reduced the punitive damages that had been awarded against Exxon for the Exxon Valdez oil spill from $2.5 billion to $507.5 million.  Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008).  The Court unanimously agreed that the Clean Water Act’s penalty provisions did not preempt a common law award of punitive damages against Exxon, rejecting an argument that had been raised for the first time by Exxon many years after the litigation had commenced.  It split 5-3 in adopting a new judge-made rule that under federal maritime law punitive damages normally should not exceed the amount of compensatory damages.  Justice Souter joined Chief Justice Roberts and Justices Scalia, Kennedy and Thomas in the majority opinion.  Justice Alito did not participate in the case because he reportedly owns stock in Exxon.  Noting that the initial punitive damages award of $5 billion already had been cut in half, Justice Breyer in dissent argued that this was an exceptional case justifying a deviation from the majority’s new rule.  An edited copy of this decision is available in the 2008-2009 edition of our Statutory and Case Supplement on pp. 1115-1123.

Presidential Oversight of Rulemaking (pp. 153-57)

Issues concerning the legality of presidential involvement in EPA decisionmaking have received renewed attention as a result of EPA’s denial in December 2007 of California’s request for a waiver under the Clean Air Act to allow tough new state standards for auto emissions to go into effect to reduce emissions of greenhouse gases. After EPA Administrator Steven Johnson announced his decision to deny California’s waiver request, rumors spread quickly that EPA career staff had unanimously supported granting the California waiver and that staff in the general counsel’s office had warned that a denial would not be legally defensible.  Senator Barbara Boxer and Congressman Henry Waxman, both members of California’ congressional delegation and chairs of the Senate Environment and Public Works Committee and the House Committee on Oversight and Government Reform, respectively, launched investigations.  After several months of investigation, Waxman’s committee staff issued a memorandum, dated May 19, 2008, detailing evidence supporting these contentions.  The staff report provided further evidence suggesting that Administrator Johnson himself initially favored either a full or partial waiver, but changed his mind only after input from the White House.  “The record before the Committee suggests that the White House played a pivotal role in the decision to reject the California petition, but it does not explain the basis for the White House intervention.” Majority Staff Memorandum to the Members of the Committee on Oversight and Government Reform, May 19, 2008, at 2.  Available at http://oversight.house.gov/documents/20080519131253.pdf.  In response to a request for documents reflecting communications between the White House and the EPA on this issue, the White House asserted executive privilege and declined to produce them.  Id. at 6.

Internal EPA staff analysis unearthed through the Waxman investigation had, prior to the final decision, concluded that denying California’s waiver would not be “consistent with past interpretation of statute, EPA practice, case law, and the record,” and “inconsistent with precedent saying we look at vehicle program as a whole, not individual standards.”  Id. at 11.  That internal analysis also concluded that the effects of climate change in California “represent serious conditions on their own and when compared with other states,” apparently indicating that a denial based on a lack of “extraordinary or compelling” local effects was not supportable.  Late in the internal review process, a slide prepared for an October 30, 2007 briefing of the Administrator stated that “California exhibits a number of specific features that are somewhat unique and may be considered compelling and extraordinary with regard to both the need for mitigation actions and its potential vulnerability to climate change.” Id. at 13. 

Presidential interference with EPA decisionmaking also has been alleged to be the cause of the agency’s belated and tepid response to the Supreme Court’s Massachusetts v. EPA decision ordering the agency to reconsider whether to regulate emissions of greenhouse cases from motor vehicles under the Clean Air Act.  On July 11, 2008, when the Administrator responded formally to the Massachusetts v. EPA remand, he did so in an Advance Notice of Proposed Rulemaking (ANPR) that did not draw a conclusion on whether emissions of greenhouse gases should give rise to an “endangerment” finding.  Instead, the Administrator used the ANPR to solicit comments from the public concerning how the EPA ought to proceed, in light of the structure of the Clean Air Act, its specific regulatory authorities for mobile sources, as well as other considerations.  At a hearing before the Senate Committee on Environment and Public Works (EPW) on July 22, 2008, Jason Burnett, the former EPA employee in charge of formulating the agency’s response, testified that EPA conducted a danger assessment and concluded that the public will experience serious health consequences due to climate change.  This conclusion was endorsed by other agencies that agreed that global climate change is an endangerment to the American public.  The finding, if officially made, would require the EPA to regulate greenhouse gas emissions. Burnett testified that when EPA sent a draft endangerment finding to the Office of Management and Budget on December 5, 2007, OMB refused to open the email in order to keep it from becoming public under OMB’s disclosure rules.