The recent decision in Global Companies, LLC v New York State Department of Environmental Conservation, 2017 WL 4817272 (3d Dep’t 2017) illustrates how difficult it can be for an applicant to force an end to the SEQRA process and require a decision on an application.   In April 2013, Global applied for a modification to its clean air act permit, seeking to expand the storage capacity at its petroleum storage and transfer facility in Albany.   In November 2013, DEC declared itself lead agency for SEQRA and issued a negative declaration and a Notice of Complete Application.  In June 2014, an Article 78 action was commenced challenging the negative declaration and in May 2015 DEC notified Global that it was rescinding the Notice of Complete Application.

Global then brought an Article 78 and declaratory judgment action seeking to compel DEC to make a final decision on the application.   The trial court granted the mandamus, based largely on the provision of the Environmental Conservation Law that requires DEC to render a decision within 18 months after receipt of a complete application.  The Appellate Division reversed.

Global argued that if DEC could revoke a notice of complete application, the 18 month period in the statute would be rendered meaningless and their application would be in limbo.  One of my partners refers to the situation as a “SEQRA perpetual motion machine.”  Global also noted that it was not asking the court to order DEC to grant its application; it was merely asking the court to require DEC to make a decision.

The Appellate Division reasoned that whenever there are changes to the project, DEC can restart the 18 month clock.  Every project changes during the review process and it cannot be that every change restarts the clock.  The court noted, however, that in challenging the agency’s decision to view a change as significant enough to restart the clock, the “arbitrary and capricious” standard applies.  That is a very difficult standard and means that, to a large extrent, a lead agency can put off deciding on an application for as long as it wants.


In ASARCO, LLC v Atlantic Richfield Co., 2017 WL 3427708 (9th Cir. August 10, 2017) the court addressed whether a settlement under the Resource Conservation and Recovery Act (RCRA) could give rise to a contribution action under the Comprehensive Environmental Responsce Compensation and Liability Act (CERCLA).   The court noted a split in the federal circuits on the issue and sided with the Third Circuit in concluding that a RCRA settlement can trigger a CERCLA contribution action.  The court’s reasoning was based largely on the wording of the CERCLA contribution provision.  CERCLA contains two distinct contribution provisions.  Section 113(f)(3)(B) provides a contribution action only during or after an action under CERCLA.  Section 113(f)(1), in contrast, provides a contribution claim to persons who have settled a “response” action.  The court explained that by including the requirement that the triggering action be a CERCLA action in one provision and not the other, Congress must have intended that limitation to apply only where specified.

The primary difference between RCRA and CERCLA is that RCRA regulates the use, handling and disposal of hazardous wastes at active industrial sites and CERCLA provides a liability scheme for the remediation of inactive hazardous waste disposal sites.  Some sites are subject to both programs.  At these sites, whether a response action is called a RCRA corrective action or a CERCLA response largely makes no difference.   A response action that satisfies one program should satisfy the other.   This decision is consistent with that principal, so that, as a practical matter, which program the remediation satisfies should not make a difference.

Despite this decision, a responsible party, performing RCRA corrective action pursuant to a settlement agreement should seek to include a provision that the settlement is resolving CERCLA liabiliity as well.  This makes the right to contribution stronger, but more importantly, one wants the broadest resolution possible to limit future claims.

The Supreme Court issued an important regulatory taking decision on the last day of the term. Murr v Wisconsin (June 23, 2017). The Fifth Amendment of the Constitution prohibits the government from taking property without compensating the owner. Regulations often reduce the value of a property and such regulations do not result in a claim for compensation. Regulatory taking is the phrase used for situations in which regulation has taken enough of the value from the owner so that compensation should be provided. The basic standard for a regulatory taking is that compensation will be required when a regulation “denies all economically beneficial or productive use of land.” Lucas v South Carolina Coastal Council, 505 US 1003, 1015.

The Murr case arose out of a local law in Troy, Wisconsin, that barred separate sale or development of adjacent lots that are under common ownership, unless each has more than an acre suitable for development. Petitioners acquired adjacent parcels separately and intended to transfer one parcel to fund an improvement on the other parcel. However, because neither parcel had more than an acre suitable for development, local law prohibited transfer of either parcel separately.

The owners claimed that this regulation deprived them all beneficial use of the second of the two parcels. The Supreme Court disagreed, reasoning that the parcels should be viewed as one and the regulation reduces the value, but does not reduce the value sufficiently to amount to a taking.

The issue before the Court was really, what property do we look at when asking whether a regulation has taken all economic benefit from a property? To reach that conclusion the Court examined a number of factors including: (1) how does local law view the property, (2) do physical characteristics suggest one property or two, and (3) does one property enhance the value of the other. Here, local law viewed the parcels as one, physical characteristics suggested that they were one and the second enhanced the value of the first. Thus, the Court concluded that the Petitioners had one large parcel at issue (not two) and that regulation had not taken all the value of it.

The lesson for property owners when taking title to contiguous properties is the consider the possible impact of regulation and think about whether regulation suggest holding title to contiguous properties in different entities to avoid the problem faced by the Murr family.

A recent decision by the Sixth Circuit Court of Appeals, applying New York contract law, illustrates the impacts a tenant’s environmental activities can have on a landlord and the importance of addressing environmental compliance issues in a lease. Wilmington Trust Co. v ARP Generating Co., (June 8, 2017)was a breach of contract case brought by the owner of a facility, alleging that a consent order between the tenant and EPA was a breach of several lease provisions.

The Defendants financed the construction of a power plant, sold the power plant to a group of investor-financed trusts and then leased the facility back from the trusts. Plaintiff was acting as trustee for several of the owner trusts. Essentially, EPA commenced litigation against a number of power plant owners and operators to require additional pollution control equipment. The Defendants entered into a Consent Decree resolving the litigation and subsequently amended the Consent Decree to delay significant requirements until after its lease expired. Plaintiffs then challenged that action as a breach of the lease.

The court provided a lengthy analysis of the lease provisions that is beyond the scope of this post. For our purposes, it is sufficient to know that a tenant’s activities can impose environmental liabilities on the landlord and it is best to try to address these issues during lease negotiations. The typical office lease will not be allocating the same potential liabilities as a power plant (the scrubber initially agreed to by the defendants had an estimated cost of $1.4 billion). Nevertheless, the parties to a lease ought to address responsibility for a host of environmental issues that could occur.

In Town of Islip v Datre, 2017 WL 1157188 (EDNY, March 28, 2017), the court misread CERCLA and added a requirement that a defendant know that it is disposing of hazardous waste. This post will examine the causes of this error.

The first cause of the error is trying to interpret language in a Supreme Court decision without any attempt to examine the underlying reasoning. The Supreme Court in Burlington Northern noted that “arranger liability,” unlike other Superfund liability such as owner/operator liability, is not strict liability. The basis for that conclusion was the meaning of the word “arrange.” Arrange means to make a plan and one cannot make a plan accidentally. Based on that, all one needs to know is that they are disposing of something – then they have arranged for disposal. The precise issue before the court was whether accidental spills could be the source of arranger liability and the court examined the extent to which knew about these spills and never addressed the issue of whether they knew that what they were disposing of was hazardous.

The second cause of the error is a failure to examine the history of the development of CERCLA liability. Early cases had waste generators arguing that they should not be liable because they did not know that they were handling hazardous waste. Numerous courts made clear that they did not have to know they were handling a hazardous waste. There is nothing in Burlington Northern to indicate that they intended to overturn that line of cases.

As someone who has a history of representing responsible parties at Superfund sites, I tend root for the defendant because there are areas of unfairness in Superfund. However, as someone who has published numerous law review articles on Superfund issues, I would be very surprised if this is not overturned on appeal. My analysis of the arranger issue in Burlington Northern can be found in the University of Baltimore Law Review, volume 40, pages 383-418.

Release reporting requirements are not often litigated, but a recent decision from the Eastern District of California provides explains how the release reporting requirements under CERCLA relate to the release reporting requirements under EPCRA. In United States v Gibson Wine Co., 2017 WL 1064658 (E.D Cal. 2017), EPA alleged that failure to provide notice of a release of anhydrous ammonia was a violation of both CERCLA and EPCRA (among others). Defendant moved to strike the CERCLA claim on the ground that it was redundant in light of the EPCRA claim. The district court denied the motion.

The court explained that the two notices are not redundant because they serve different purposes. CERCLA (the Comprehensive Environmental Response, Compensation and Liability Act) requires a notice to the National Response Center because of concern about the risks of industrial pollution. The goal of CERCLA is cleanup. EPCRA (the Emergency Planning and Community Right to Know Act) requires notice to local government agencies to assure that the information is publicly available so that agencies can respond appropriately. Because the goals of the two notice are different, the court concluded that the claims were supplementary and not redundant.

A recent decision of the United States Court of Appeals for the District of Columbia addresses important issues regarding challenges to regulatory action.  The case, Center for Regulatory Reasonableness v EPA, 2017 WL 763916, arose out of certain policy letters issued by EPA in 2011 that explained and arguably changed two EPA policies regarding publicly owned water treatment facilities.  The policy letters were challenged and the challengers prevailed in the Eighth Circuit Court of Appeals.  See, Iowa League of Cities v EPA, 711 F3d 844 (2013).   EPA then stated that it would not acquiesce to the Eighth Circuit’s decision outside of the Eighth Circuit and the Center for Regulatory Action challenged EPA’s non-acquiescence statements.

The court held that it did not have jurisdiction to hear the case because the Clean Water Act only gives courts of appeals jurisdiction to hear challenges to EPA-promulgated effluent or discharge standards and the non-acquiescence statements were not a “promulgation” because they did not announce a new standard.  Interestingly, the 2011 policy letters were a “promulgation.”  The Eighth Circuit’s decision had explained that whether an act is a “promulgation” depends on whether it has a binding effect on regulated parties.  Apparently, the court concluded that the 2011 letters had a binding effect, while the acquiescence letters merely explained the effect of the 2011 letters.

Next the court explained that to the extent that the Center for Regulatory Reasonableness was really challenging the 2011 letters, its challenge was untimely.  Challenge had to be within 120 days, as it was in the Eighth Circuit.

The result is that (1) the Eighth Circuit vacated the 2011 letters because they were the promulgation of effluent standards without notice and comment as required by the Administrative Procedure Act; (2) EPA accepts that decision as binding only in Eighth Circuit and treats the 2011 letters as binding in the rest of the country; and (3) the time to challenge the letters for violating the Administrative Procedure Act outside the Eighth Circuit has passed.

The Center for Regulatory Reasonableness may still find a way out of this unreasonable result, but the lesson learned is that when challenging regulatory action, you need to move quickly and you may not be able to rely on challenges in other jurisdictions.