Michael B. Gillett, Seattle Attorney at Law

Case Notes from the U.S. Supreme Court

Most land use and real property cases are decided under state law. Click here for recent and pending decisions of the Washington Supreme Court.

The U.S. Supreme Court is the highest court in the land. It reviews the constitutionality of government actions that affect property rights and interprets the meaning of federal environmental laws. The Court is composed of nine members appointed for life by the President and confirmed by the Senate.

Recent Decisions

Mine slurry discharged to an isolated lake is fill material under the Clean Water Act, not a pollutant. Coeur Alaska plans to reopen a gold mine north of Juneau, Alaska, and use a mining technique known as "froth flotation" in which the mine's crushed rock is churned in tanks of frothing water. Chemicals in the water cuase the gold-bearing minerals to float to the surface where they are skimmed off. Coeur Alaska proposes to dispose of the mixture of crushed rock and water left behind, known as slurry, by pumping it into a nearby lake, eventually raising the lakebed by 50 feet. The lake will be isolated from other surface water. Before the lakewater flows into outside water sources, it will be purified according to EPA's new source performance standard for discharges from froth-flotation gold mines. Under section 404 of the Clean Water Act, the Corps of Engineers issued a fill permit for the placement of the slurry in the lake. Under section 402, the EPA issued a discharge permit for the discharge of purified lake water into a downstream creek. Petitioners, three environmental groups, sued the Corps in the District of Alaska. On cross motions for summary judgment, the district court ruled in favor of the Corps. The United States Court of Appeals for the Ninth Circuit reversed and ordered the district court to vacate the Corps' permit. The Supreme Court reversed. The first question was whether the mine required a Corps fill permit under section 404, or, as the Ninth Circuit held, an EPA discharge permit under section 402. The Court read section 402 as authorizing the EPA to issue a discharge permit only if section 404 did not authorize the Corps to issue a fill permit. It was undisputed that the placement of the material in the lake meets the joint EPA-Corps definition of fill, but the petitioners argued that the Act does not authorize the Corps to permit a discharge of fill material if that material is subject to a new source performance standard. The Court disagreed, finding no such limitation in the statute, and concluding that the petitioners' interpretation would be confusing. The second question was, regardless of who had permitting authority, whether the EPA's new source performance standard applied to discharges of fill material? The Court held that neither Congress nor regulations issued by the agencies provided an unambiguous answer to the question. Therefore, it deferred to a memorandum issued by the director of the EPA's Office of Wetlands, Oceans and Watersheds which concluded that the new source performance standards do not apply under the circumstances of this case. The Court was influenced by five factors: (1) the conclusion was limited to closed bodies of water; (2) the memorandum guards against attempts to evade the EPA requirements; (3) it preserves the Corps' authority to determine whether a discharge is in the public interest; (4) it does not apply to toxic pollutants; and (5) it is a sensible and rational construction that reconciles different statutory provisions and their implementing regulations. Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 129 S.Ct. 2458 (2009).

Arranger liability under CERCLA requires proof of intentional steps to dispose of a hazardous substance. Shell Oil Company sold chemicals to Brown & Bryant, an agricultural chemical distribution business in California, which leased some of its property from Burlington Northern and Union Pacific. Upon delivery to the facility, the chemicals were transferred from delivery trucks to bulk containers, during the course of which spills would commonly occur. Shell was aware of such spills, and took steps to encourage its customers, including Brown & Bryant, to take steps to reduce such spills. Nevertheless, some spillage continued to occur, and the contamination eventually reached groundwater. Brown & Bryan became insolvent. The EPA and the State of California conducted a cleanup which cost more than $8 million. Pursuant to an EPA order, the railroad companies, as owners of part of the property, conducted additional cleanup actions at a cost of more than $3 million. The Governments brought a cost recovery action against Shell and the railroad companies in the Eastern District of California, which was consolidated with an action by the railroad companies against Brown & Bryant. The district court held that Shell was liable to the Governments as an arranger. (The railroad companies' liabiity as owners was not disputed.) The district court also held that the harm was capable of apportionment. Although the defendants presented no evidence on which to base an allocation of costs, the district court concluded that the record supported allocating six percent of the costs to Shell and nine percent to the railroad companies. The Court of Appeals for the Ninth Circuit affirmed the district court's holding that Shell was liable as an arranger. With respect to allocation, the Ninth Circuit agreed that the harm was capable of apportionment, but held that the record was insufficient to provide a reasonable basis for apportionment. The Supreme Court reversed. First, the Court held that whether an entity is liable under CERCLA as an arranger is a fact-intensive inquiry, and requires a showing that the entity took intentional steps to dispose of a hazardous substance. Knowledge that a useful product sold to a customer will be leaked, spilled, dumped or otherwise discarded may be evidence of the seller's intent to dispose of the hazardous substance, such knowledge alone is insufficient to show that the entity planned for such disposal, especially where the disposal occurs as a peripheral result of a legitimate sale of an unused, useful product. With respect to allocation, the Court held that the scope of liability is to be determined from traditional and evolving principles of common law. Where multiple entities contribute to a single harm for which there is a reasonable basis for allocating the contribution of each to that harm, the liability of each is only for that portion of the total harm allocated to that entity.The Court held that the district court's allocation of liabiity was supported by the evidence. Burlington Northern & Santa Fe Railway Co. v. United States, 129 S.Ct. 1870 (2009).

EPA's use of cost-benefit analysis to set standards for cooling water intake structures at existing power plants was reasonable interpretation of the Clean Water Act. Many powerplants require cooling water to be extracted from nearby water sources. The cooling water intake structures cause mortality to many aquatic organisms. Section 316(b) of the Clean Water Act requires the EPA to issue standards for these cooling water intake structures that reflect the "best technology available for minimizing adverse environmental impact." In 2004, the EPA issued a standard for existing facilties. Unlike standards that had previously been issued for new facilities, the EPA conducted a cost-benefit analysis in setting a standard for existing facilities standards. In addition, it provided for the possibility of a site-specific variance from the standard if a facility can demonstrate either that its costs of compliance are significantly greater than those considered by the EPA in setting the standard or that its costs of compliance would be significantly greater than the benefits of complying with the EPA standard. The Court of Appeals for the Second Circuit held that in setting standards under section 316(b), the EPA could properly consider costs in two ways: (1) whether the costs can reasonably be borne by the industry; and (2) in determining which technologies are the most cost-effective; however, the court of appeals held that the EPA was not permitted to conduct a cost-benefit analysis and choose a standard based on the best net benefits. The Supreme Court reversed and remanded. First, the Court construed the statutory language, "best technology available for minimizing adverse environmental impact". The Court said that the court of appeals reading, that the language means the technology that achieves the greatest reduction in adverse environmental impacts at a cost that can reasonably be borne by the industry, is a plausible interpretation, but that the EPA's interpretaion was reasonable. Specifically, the Court held that the term "best technology" may describe the technology that most efficiently produces some good, and that the term "minimize" admits of degree and does not necessarily refer exclusively to the greatest possible. Second, the Court compared section 316(b), which does not expressly address the way in which cost may be considered, to other standards required under the Clean Water Act, where Congress had expressly addressed cost. The Court rejected the argument that Congress' silence on cost in section 316(b) shows Congress' intent to forbid the use of cost-benefit analysis. Instead, the Court concluded that it is reasonable to conclude that Congress meant to leave to the EPA whether to use cost-benefit analysis, and if so to what degree. Entergy Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498 (2009).

Organizational plaintiffs lack standing to challenge Forest Service regulation exempting timber salvage sales from notice, comment and appeal process. Under the Forest Service Decisionmaking and Appeals Reform Act, the Forest Service established a notice, comment and appeal process for various projects and actions, but exempted those projects that are categorically excluded from the requirements to file an environmental impact statement or environmental assessment. Later the Forest Service provided that certain fire-rehabilitation activities and salvage timber sales fell into this category of exempted projects. In 2003, the Forest Service approved the Burnt Ridge Project, a salvage sale resulting from a 2002 fire in the Sequoia National Forest. The organizational plaintiffs brought suit in the Eastern District of California. Affidavits submitted to the court showed that one member repeatedly visited the Burnt Ridge site, had imminent plans to do so again, and that his interests would be harmed if the project went forward without incorporation of the ideas he would have included in comments on the project. Before trial, the parties settled their dispute over the Burnt Ridge Project. With that dispute settled, and with no other project before the court, the Forest Service challenged the plaintiffs' standing. The district court nevertheless adjudicated the case on the merits, invalidating the Forest Service regulations and entering a nationwide injunction. The Court of Appeals for the Ninth Circuit held that only the regulations affecting the Burnt Ridge Project were ripe for adjudication, and affirmed the district court as to those regulations. The Supreme Court reversed. The Court held that once the Burnt Ridge Project was settled, the organizational plaintiffs lacked constitutional standing to challenge the basis for that project "apart from any concrete application that threatens imminent harm to his interests." The Court held that another affidavit expressing a member's intention to visit the National Forests was inadequate to challenge a Government action affecting any portion of those forests, stating that "would be tantamount to eliminating the requirement of concrete, particularized injury in fact." Summers v. Earth Island Institute, 129 S.Ct. 1142 (2009).

The Navy's interest in conducting realistic training exercises, including sonar use, outweighs potential harm to marine mammals. For 40 years, the Navy has conducted strike force training exercises off the southern California coast, including the use of mid-frequency active (MFA) sonar to detect enemy submarines. In preparation for training exercises scheduled through January 2009, the Navy issued an environmental assessment concluding that the exercises, for which certain mitigation measures were adopted to protect marine mammals, would not have a significant impact on the environment, and therefore an environmental impact statement was not required. The plaintiffs sued in Central District of California, which issued a preliminary injunction prohibiting the Navy from using MFA sonar during the remaining training exercises. A complex procedural history ultimately ended up with the Court of Appeals for the Ninth Circuit affirming a preliminary injunction allowing the Navy to use MFA sonar in connection with six mitigation measures, all but two of which the Navy accepted. By the time the case reached the Supreme Court, the Navy had agreed to prepare an environmental impact statement. The Supreme Court held that a preliminary injunction was not proper, and that even if the plaintiffs prevail on the merits, a permanent injunction would not be proper, because in balancing the interests, an injunction should not issue. Deferring to the professional judgment of naval authorities that use of MFA sonar under realistic training conditions is of utmost importance to the Navy and the Nation, the Court held that these interests strongly outweigh the possible injuries to an unknown number of marine mammals. In dicta, albeit unequivocal dicta, the Court also stated that the Ninth Circuit's standard allowing preliminary injunctive relief for the mere possibility of irreparable harm where the plaintiff shows a strong likelihood of success on the merits was too lenient; the plaintiff must show that irreparable harm is likely. Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365 (2008).

A federal agency is not required to considered endangered species when taking a non-discretionary action. The state of Arizona applied to the EPA for authorization to administer the state's national pollutant discharge elimination system permit program under section 402(b) the Clean Water Act. Section 402(b) requires the EPA to approve a state application if the EPA finds that it meets nine criteria that focus on whether the state has certain legal authorities. The EPA consulted with the U.S. Fish & Wildlife Service (USFWS) under section 7(a)(2) of the Endangered Species Act to determine whether transfer of permitting authority would adversely affect any listed species. The USFWS regional office concluded that there would be no direct adverse effect, but that there could be indirect adverse effects resulting from the lack of any requirement that a State consult with USFWS before issuing a permit; however, the USFWS national office concluded that the transfer would not cause jeopardy to listed species because loss of any conservation benefit is not caused by the EPA's decision to transfer permit authority to Arizona, but reflects Congress' decision to allow states to administer the program if they meet the nine criteria. On direct review, the Court of Appeals for the Ninth Circuit held, in part, that the Endangered Species Act gave the EPA both the power and the duty to determine whether its transfer decision would jeopardize listed species. In a 5-4 decision, the Supreme Court reversed. The Court concluded that the EPA could not simultaneously obey the differing mandates of the Clean Water Act and the Endangered Species Act. In order to avoid an implied repeal of the earlier-enacted Clean Water Act requirement, the Court turned to a USFWS regulation that states "Section 7 and teh requirements of this part apply to all actions in which there is discretionary Federal involvement or control." The Court read this regulation to harmonize the statutes "by applying § 7(a)(2) to guide agencies' existing discretionary authority, but not reading it to override express statutory mandates." The Court held that this regulation is reasonable, and is therefore entitled to deference by the Court. National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007).

Potentially responsible parties (PRPs) who voluntarily clean up contaminated property may recover costs from other liable parties. Atlantic Research leased property from the United States on which it retrofitted rocket motors for the United States. The operations resulted in contamination of soil and groundwater at the property, which Atlantic Research cleaned up at its own expense. It then filed an action against the United States in the Western District of Arkansas, seeking to recover some of its costs under sections 107(a) and 113(f) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Thereafter the Supreme Court held, in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), that a private paarty could seek contribution under section 113(f) only after having been sued under section 106 or section 107(a), thereby foreclosing Atlantic Research's section 113(f) claim. The United States moved to dismiss, arguing that section 107(a) does not allow PRPs to recover costs. The district court granted the Government's motion. The Court of Appeals for the Eighth Circuit reversed. The Supreme Court unanimously affirmed the Eighth Circuit. The Court primarily relied upon a structural comparison of section 107(a)(4)(A) (holding PRPs liable for "all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan") to the adjacent section 107(a)(4)(B) (holding PRPs liable for "any other necessary costs of response incurred by any other person consistent with the national contingency plan"). The Court rejected the Government's argument that the term "any other person" in the latter provision referred only to persons other than PRPs. Instead, the Court held that the term refers to any person not allowed to sue under section 107(a)(4)(A). United States v. Atlantic Research Corp, 551 U.S. 128 (2007).

Local government may require trash haulers to deliver solid waste to a particular public facility. The State of New York created the Oneida-Herkimer Solid Waste Management Authority (Authority) as a public benefit corporation. Oneida and Herkimer Counties contracted with the Authority to manage solid waste in the counties. The Authority would obtain its revenues through tipping fees that were higher than market rates (in order to finance additional services, such as recycling). The counties passed flow control ordinances that required all solid waste to go to the Authority. Local haulers and their trade association sued in the Northern District of New York. Relying on the Supreme Court's decision in C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994), the district court held that the ordiances violated the "dormant" Commerce Clause (the doctrine that state and local governments may not discriminate against interstate commerce). The Court of Appeals for the Second Circuit reversed, reasoning that the Carbone decision applied the dormant Commerce Clause to flow control ordinances requiring that solid waste be hauled to a designated private facility, but was inapplicable here because the facility was publicly-owned. The Supreme Court affirmed. The Court distinguished the Carbone decision, stating that it did not decide whether flow-control ordinances benefiting public entities should be treated the same as ordinances benefiting private entities. Here, the Court found that the flow-control ordinance benefited a clearly public facility, while treating all private companies exactly the same, holding that such flow-control ordinances do not violate the dormant Commerce Clause. The Court was particularly hesitant to interfere with the Counties' efforts because waste control is typically and traditionally a local government function. United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330 (2007).

EPA has authority under Clean Air Act to regulate greenhouse gas emissions from new motor vehicles. An ever-growing scientific consensus links air emissions of greenhouse gases, such as carbon dioxide, to worldwide increases in atmospheric temperatures. This global warming effect, it is feared, will have adverse - perhaps catastrophic - environmental and economic effects. In 1999, a group of private organizations petitioned the EPA to use its authority under the Clean Air Act to regulate tailpipe emissions of greenhouse cases from new motor vehicles. Specifically, the Act requires the EPA to prescribe "standards applicable to the emissions of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare ...." In 2003, the EPA denied the petition for two reasons. First, it concluded that the Clean Air Act does not authorize it to issue mandatory regulations to address global climate change. It cited the fact that in the last comprehensive amendments to the Act, Congress had declined to adopt a proposed amendment establishing binding emissions limitations for greenhouse gases, and that Congress had adopted a specifically-tailored solution to the issue by regulating ozone-depleting pollutants. Therefore, the EPA believed that greenhouse gasses are not "air pollutants" within the meaning of the Clean Air Act. The EPA's second reason for denying the petition was that, even if the Act gave , the EPA believed that, for a variety of policy reasons, it would be unwise to exercise the authority at this time. Joined by intervenor States and local governments, the petitioners sought review of the EPA's order denying the petition in the Court of Appeals for the District of Columbia. The court of appeals agreed that the EPA had properly exercised discretion in denying the petition; therefore, the court denied the petition for review. The Supreme Court, in a 5-4 decision, reversed. After first concluding that at least one petitioner - Massachusetts - met the criteria for standing (a conclusion with which the four dissenters strongly disagreed), the majority held that the Act's definition of "air pollutant" ("any air pollution agent or combination of such agents, including any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air") unambiguously includes greenhouse gases. Therefore, EPA has the authority to adopt tailpipe emissions standards for greenhouse gases. Turning to the EPA's position that a variety of policy considerations would make it unwise to adopt such standards at this time, the Court held that the statute does not give the EPA that discretion. If the EPA determines that an air pollutant causes or contributes to air pollution which may reasonably be anticipated to endanger public health or welfare, the Act requires it to regulate tailpipe emissions. Therefore, the Court sent the matter back to the EPA to determine whether to make an endangerment finding, instructing it to "ground its reasons for action or inaction in the statute." Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).

EPA may define modifications of major stationary sources differently under its PSD regulations than under the NSPS program, even thought the term "modification" has the same statutory definition. The Clean Air Act includes programs to combat air pollution from major stationary sources of pollutants, such as large factories, refineries and power plants. Among these programs are two that cover the construction of new stationary sources, or the modification of existing sources. One of the programs, known as the New Source Performance Standard (NSPS) program, addresses sources that are located in regions that do not meet the EPA's ambient air quality standards. The NSPS provisions in the Act define the term "modification" as "any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted." The EPA's NSPS implementing regulations, adopted in 1975, provide that a modification is "any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies ...." Under the NSPS program, the rate of emissions is measured in kilograms per hour. The second program, known as the Prevention of Significant Deterioration (PSD) program, applies in regions not covered by the NSPS program (that is, it applies in areas that do meet the EPA's amibient air quality standards). In the Act, Congress provided that for purposes of the PSD program the term "modification" is used "as defined in" the NSPS provisions. Nevertheless, the EPA's PSD implementing regulations take a different approach to modifications than taken in its NSPS regulations. The PSD regulations, adopted in 1980, provide that PSD review is limited to major modifications, defined as "any physical change in or change in the method of operation of a major stationary source", excluding a mere increase in the hours of operation, "that would result in a significant net emissions increase of any pollutant subject to regulation under the Act." The regulations further provide that there is a "net emissions increase" where there is any increase in "actual emissions," defined as the average annual rate (measured in tons per year) of emissions during the preceding two-year period. Duke Energy modified eight coal-fired power plants located in an area that meets the EPA's ambient air quality standards. The modifications increased the plants' daily operating hours and extended their projected useful lives, increasing the actual emissions on an annual basis, but not the hourly rate of emissions. The EPA brought an action, claiming that Duke Energy violated the PSD provisions because it failed to obtain permits. Duke Energy moved for summary judgment, arguing that by excluding mere increases in the hours of operation from the definition of major modification, the regulations require a permit only when there is an increase in the hourly rate of emissions. The district court agreed, and granted summary judgment. The Fourth Circuit Court of Appeals affirmed on different grounds. It concluded that Congress, by incorporating the NSPS definition of modification into the PSD provisions, "affirmatively mandated that this term be interpreted identically" in the EPA's implmenting regulations; therefore, it construed the PSD regulations consistently with the NSPS regulations. The Supreme Court reversed. It viewed the Fourth Circuit's effort to construe the term as used in the PSD regulations so as to track the NSPS regulations as stretching the regulations too far. According to the Court, the 1980 regulations "clearly do not define a 'major modification' in terms of an increase in the 'hourly emissions rate.'" Rather than providing a permissible construction of the 1980 regulations, the Fourth Circuit's efforts constituted "an implicit declaration that the PSD regulations were invalid as written." But the Supreme Court disagreed. It held that although there is a presumption that a term used in different parts of the same statute carries the same meaning throughout, the presumption is rebuttable, even when the term shares a common statutory definition. "A given term in the same statute may take on distinct characters from association with distinct statutory objects calling for different implementation strategies." In this case, the Court found nothing in the text of the Act or its legislative history to suggest that Congress intended to eliminate the EPA's discretion in implementing the definition in its different contexts. Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007).

Scope of federal jurisdiction over wetlands remains muddied. Under the Clean Water Act, a permit must be btained from the Army Corps of Engineers for the discharge of dredged or fill material into the navigable waters, defined as "the waters of the United States, including the territorial seas." Under the Act, the Corps broadly asserts jurisdiction over, among other things, wetlands that are not themselves navigable but that are adjacent to navigable water or non-navigable "tributaries" of navigable waters, no matter how remote. Earlier Supreme Court cases approved the Corps' assertion of jurisdiction over wetlands that actually abut a body of navigable water because there is no clear point of demarcation between water and land, but struck down the Corps' assertion of jurisdiction over isolated ponds that are not adjacent to open water. In the latter case, the Court said that the Corps' jurisdiction over wetlands adjacent to navigable waters was informed by a significant nexus between the wetlands and navigable waters. In Rapanos v. United States, a divided Court once again addresses the scope of the Corps' jurisdiction over wetlands. Justice Scalia (writing for the four-justice plurality), states that the Corps' jurisdiction extends no further than to those wetlands that are physically connected to waters of the United States that are permanent, standing or continuously flowing waters (e.g., streams, oceans, rivers and lakes), such that the wetlands are as a practical matter indistinguishable from the waters. Concurring in the judgment to remand the case, Justice Kennedy rejects both the plurality's narrow definition of waters and its limitation of the Corps' jurisdiction to those wetlands physically connected to navigable waters. Instead, Justice Kennedy falls back on a significant nexus standard, which he says is definitely established where a wetland is adjacent to navigable-in-fact waters, but must otherwise be evaluated by the Corps and the courts on a case-by-case basis. The four dissenting justices would uphold the Corps' jurisdiction over all wetlands that are adjacent to navigable water or tributaries of navigable waters. Unfortunately, the Court's divided opinion provides little guidance to lower courts, regulators or developers. Rapanos v. United States, 547 U.S. 715 (2006).

Water over a dam is a discharge into the river. Section 401 of the Clean Water Act requires that persons applying for a federal license to conduct any activity that may result in any discharge into navigable waters shall obtain a state certification. The state certification sets forth effluent limitations and other requirements necessary to comply with the Clean Water Act and with any other appropriate requirement of State law. S. D. Warren Company operates several hydroelectric dams on the Presumpscot River in Maine. When it applied to renew its licenses for these facilities, the Maine Department of Environmental Protection issued certifications requiring minimum stream flows to allow passage for various migratory fish and eels, and the Federal Energy Regulatory Commission licensed the dams subject to these certifications. Warren brought suit alleging that the state agency exceeded its authority under section 401 because the licensed activity merely returned river water to the river, and there was no discharge of a pollutant. Justice Souter, writing for a unanimous Court, rejected Warren's fundamental argument that the term "discharge," as used in section 401, necessarily requires the addition of something to the water, namely a pollutant. The Court noted that the term "discharge," is not defined under the Clean Water Act, although the Act does expressly state that, when the term is used without qualification, it "includes a discharge of a pollutant, and a discharge of pollutants." "But," the Court said, "'discharge' presumably is broader, else superfluous, and since it is neither defined in the statute nor a term of art, we are left to construe it in accordance with its ordinary or natural meaning." The Court held that, when applied to water, "'discharge' commonly means a flowing or issuing out." Furthermore, the Court observed that this sense of the word has consistently been the meaning used by the Court in other water cases, including the only other case in which the Court focused on section 401 (PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994)). S. D. Warren Co. v. Maine Dept. of Environmental Protection, 547 U.S. 368 (2006).

U.S. Constitution allows local governments to exercise the power of eminent domain to foster economic development. As part of an effort to revitalize its local economy, the City of New London, Connecticut planned a 90-acre project involving a hotel, restaurants, retail stores, marinas, a park, office space and residential units. It successfully negotiated for the purchase of most of the real estate it needed, and brought condemnation proceedings against landowners who were not willing to sell. The landowners claimed that the condemnation violated the Fifth Amendment to the U.S. Constitution, which requires that private lands be taken only for a public use. The U.S. Supreme Court upheld the city’s exercise of its power of eminent domain, holding that the public use requirement is satisfied if the condemnation serves a public purpose – which the Court held is the same as the condemning authority’s police powers, and includes promoting economic development. The Court further held that a legislative determination that a particular taking is for a public use is entitled to deference from the courts. Kelo v. City of New London, 545 U.S. 469 (2005).

Pesticide makers can be sued for crop losses. The crops of Texas peanut farmers were damaged by the application of an herbicide. The farmers sought damages from the manufacturer under various state-law claims. The manufacturer argued that the farmers’ claims were preempted by federal law, which provides that states may not impose requirements for pesticide labels that are in addition to or different than labels required by the EPA. The Supreme Court held that although potential liability for damages may induce a pesticide maker to modify its label, it is not required to do so; therefore, the state-law claim is not preempted. Even if state law imposes a label requirement by creating a private remedy for inadequate labels, the state law is not preempted if the duty imposed by state law is fully consistent with and equivalent to federal law. Bates v. Dow AgroSciences LLC, 544 U.S. 431 (2005).
In 1995, the Washington Supreme Court held that federal law preempted failure-to-warn claims brought by farmers against pesticide makers. The validity of that holding is now in question. If you would like to know more about the Bates decision, and how it might affect failure-to-warn crop damage claims under Washington law, check out our Case Analysis, Are pesticide makers liable for failure to provide warnings adequate to make the product reasonably safe?

Upcoming Decisions

In the October 2009 Term, the Court is considering one environmental case. We will be watching the case and will report on it as is briefed, argued and decided.

Did the Florida Supreme Court effect a judicial taking of private property without just compensation by suddenly and unpredictably redefining the state's common law in a way that deprived private property owners of rights they previously enjoyed? Under Florida common law, owners of littoral property own the land up to the mean high water level (MHWL) and the state owns the foreshore beyond the MHWL. The MHWL is a dynamic line, changing with time as gradual and imperceptible changes in the shoreline, known as accretion or reliction, occur. As the MHWL changes through these gradual and imperceptible processes, the littoral property owner's property line changes. However, where a sudden and perceptible change in the shoreline, known as avulsion, moves the MHWL, the property line does not change, but remains where the former MHWL was located. In 1985, certain beaches along the Gulf of Mexico in Florida were substantially eroded by Hurricane Opal. Under the state's Beach and Shore Protection Act, the Department of Environmental Protection restored these beaches by adding sand. The addition of sand made certain former foreshore areas dry-sand areas - in other words, moving the MHWL seaward. The state designated the former MHWL as an erosion control line (ECL), which the legislation established as the permanent boundary line separating the littoral land from the state's seaward property. The legislation specifically preserved certain of the the littoral landowners' rights, such as the right of access to the water, but provided that the littoral property no longer increased or decreased by accretion or erosion or any other natural or artificial process. An association of six littoral property owners brought suit in the Florida courts, claiming that this constituted an unconstitutional taking of private property without just compensation. The trial court agreed, but the Florida Supreme Court did not and it reversed the trial court. The Florida Supreme Court held: (1) the state's addition of sand to the eroded beaches was merely the exercise of the common law right of a property owner to reclaim land lost as the result of avulsion ("[I]f the shoreline is lost due to an avulsive event [such as a hurricane], the public has the right to restore its shoreline up to that MHWL."); (2) there was no taking of the littoral right of accretion because the right of accretion is a future, contingent right and the interests justifying the right no longer exist; and (3) there is no taking as a result of the loss of the littoral land's contact with the water because the right to contact with the water is merely ancillary to the right of access, the latter of which is preserved under the legislation. The dissent argued that contact with the water is the condition precedent to all other littoral and riparian rights, and is "an indispernsible predicate for the private owners' possession of other associated rights." The property owners petitioned the U.S. Supreme Court for review, arguing that the Florida Supreme Court's interpretation of Florida common law represents a sudden and unpredictable departure from prior law, and, therefore, constitutes a judicial taking of private property without just compensation. On December 2, 2009, the U.S. Supreme Court heard oral argument in Stop the Beach Renourishment, Inc. v. Florida Dep't of Envt'l Protection (No. 08-1151). A decision is pending.