Sackett Oral Argument, Apple Supply Chain, EPA GHG Data, Rio+20 Draft (by Bob Percival)

On Monday January 9 the U.S. Supreme Court heard oral argument in Sackett v. EPA, a case raising the question whether recipients of an EPA administrative compliance order to stop filling wetlands can get pre-enforcement judicial review. Only a few months ago the Court had denied review of a similar issue involving the General Electric Company and a Superfund unilateral administrative order to clean up PCBs in the Hudson River. I attended the oral argument and it definitely did not go well for EPA. The government made little effort to rebut the Pacific Legal Foundation’s portrayal of EPA as an agency that seeks to dictate what people can do in their own backyards. The Natural Resources Defense Council had filed an amicus brief noting that no individual permit is needed to fill wetlands on properties that are less than half an acre (the Sackett’s property is .6 acres). But at the oral argument EPA was portrayed by the petitioners as an out of control agency trying to dictate what homeowners can do in their own backyards, leading Justice Alito to express anger that such an outrage could occur in the U.S.

While nearly everyone expects the Sacketts to win the case with the Court ruling that they can obtain pre-enforcement review of an EPA administrative compliance order, environmental pundits are split over how serious a blow this will be to enforcement of the Clean Water Act (CWA). Some believe that EPA will simply substitute informal warnings for compliance orders with little impact on enforcement because they will not trigger pre-enforcement review. Others contend that it will neuter an important tool for EPA to achieve compliance with the CWA. There was no real discussion at the argument of the importance of protecting wetlands or the consequences for enforcement if pre-enforcement review of compliance orders is mandated.

On January 13 Apple Inc. released its Apple Supplier Responsibility 2012 Progress Report. A copy of the report is available online at: http://images.apple.com/supplierresponsibility/pdf/Apple_SR_2012_Progress_Report.pdf. It reveals that Apple conducted 229 audits of its suppliers in 2011, up from 127 in 2010. Apple found that 62 percent of its suppliers had violated a 60-hour per week limit on working hours, 32 percent had failed to comply with hazardous substance management regulations, and more than 35 percent had worker safety violations. For the first time Apple published a list of its 156 leading suppliers, accounting for more than 97 percent of the company’s supply chain. The company also announced that it would join the Fair Labor Association which could conduct outside monitoring of its suppliers. Jessica E. Vascellaro & Owen Fletcher, Apple Navigates China Maze, Wall St. J., Jan. 14-15, 2012, at B1.

Now that an intermediate appellate court in Ecuador has affirmed the Lago Agrio judgment against Chevron, the oil company fears efforts to collect the $18 billion judgment. It has filed an emergency motion asking the U.S. Court of Appeals for the Second Circuit to reinstate an injunction barring enforcement anywhere in the world, it has renewed its motion with the Eastern District of New York’s federal court to grant pre-judgment attachment of any proceeds the plaintiffs receive, and it has asked the Permanent Court of Arbitration in the Hague to require Ecuador to document how it will comply with a ruling issued last February that the judgment could violate a bilateral investment treaty. Stay tuned.

Last week EPA released an interactive map of the nation’s largest emitters of greenhouse gases (GHGs) in 2010. The map, which can be accessed online at: http://ghgdata.epa.gov/ghgp/main.do, allows you to view the largest emitters in your state and to do custom searches for data on particular facilities. Three coal-fired power plants owned by the Southern Company are the top emitters of GHGs in the U.S. with each releasing more than 20 million tons of carbon dioxide. The EPA data include 6,700 facilities, including refineries and chemical plants, that emit more than 25,000 tonsof GHGs annually. Tennile Tracy, Three Southern Co. Plants Are Top Emitters, Wall St. J., Jan. 12, 2012, at B3.

Last week a federal district judge granted preliminary approval to a settlement of litigation against manufacturers of defective Chinese drywall. Knauf Plasterboard Tianjin Co., a Chinese manufacturer, agreed last month to establish a fund to repair 4,500 properties in Alabama, Florida, Louisiana, and Mississippi. The company also has established a $30 million fund to compensate for harm, such as health problems, caused by the defective drywall.

Last week the United Nations Rio+20 Conference Bureau released its “Zero Draft” of the document that will serve as the basis for negotiations at the Rio+20 conference in June 2012. The document, entitled “The Future We Want,” includes the suggestion that Sustainable Development Goals, similar to the Millenium Development Goals, be adopted by 2015 and it largely defers to the Durban Platform on climate issues. A copy of the draft is available online at: http://www.stakeholderforum.org/fileadmin/files/zerodraft110112.pdf