Wetlands Enforcement Decision, Brazil Prosecutes Chevron, NAELS Conference (by Bob Percival)

On Tuesday March 20, the U.S. Supreme Court decided Sackett v. EPA, a wetlands enforcement case. By a unanimous vote, the Justices held that the U.S. Environmental Protection Agency’s issuance of an administrative compliance order under Section 404 of the Clean Water Act is final agency action that can trigger pre-enforcement judicial review under the Administrative Procedure Act. The decision had been widely anticipated in the wake of the oral argument (see January 16, 2012 blog post). Unlike the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Clean Water Act does not contain clear language precluding pre-enforcement judicial review of compliance orders. Thus, the decision is unlikely to call into question previous lower court decisions rejecting pre-enforcement judicial review of CERCLA compliance orders. Justice Scalia’s majority opinion did not contain any invective about the § 404 program, in sharp contrast to his plurality opinion in the Court’s 2006 Rapanos decision.

In a concurring opinion, Justice Ginsburg emphasized that the Court did not decide whether the plaintiffs could challenge any more than EPA’s authority to regulate their land as wetlands. Justice Alito also filed a concurring opinion harshly attacking the §404 program and blaming Congress for being “notoriously unclear” about the reach of federal wetlands jurisdiction even though the lack of clarity is almost entirely the result of the Court’s 4-1-4 split in its Rapanos decision. The consequences of the Sackett decision may be limited in light of Justice Scalia’s suggestion at oral argument that EPA still may be able to issue non-binding compliance warnings and the fact that plaintiffs challenging an administrative compliance order will have the burden of showing that it is arbitrary and capricious.

On March 21 Brazilian authorities filed criminal charges against Transocean Ltd., Chevron Corp. and 16 of their employees for last year’s oil spill in the Frade oil field off the Brazilian coast. The government confiscated the passports of the executives to ensure that they remain in the country for prosecution. George Buck, president of Chevron’s operations in Brazil, and three of his employees also were charged with obstructions of justice and could face up to 31 years in prison. Chevron denounced the charges as “outrageous,” claiming that there is no evidence of even negligent conduct by its employees. Mathew Cowley & Daniel Gilbert, Brazil Charges Chevron, Wall St. J., March 22, 2012, at B3. The Journal article quotes me as expressing the view that Brazil is trying to send a harsh message that it will not tolerate offshore spills even as it seeks the assistance of foreign companies in developing its offshore oil reserves.

On Thursday March 22 I flew to Michigan to speak at the 25th annual conference of the National Association of Environmental Law Societies (NAELS). I was one of four people at the conference who had attended the first gathering of environmental law societies on the Michigan campus in 1988 when NAELS was founded. I then was in my first year of law teaching after having been hired by Maryland in 1987 to establish Maryland’s Environmental Law Program. At the time the conservative Federalist Society was in ascendance and I suggested that the new organization be named the “Environmentalist Society.” Instead the group chose NAELS, an acronym that has a solid ring to it. I wore the button that I had received at the first official NAELS conference, which was held the following year (1989) at the University of Colorado.

I spoke on the opening plenary panel with Richard Lazarus, Lois Schiffer, and Holly Doremus. We reflected on the changes in environmental law in the last 25 years. In my presentation I emphasized the rise of global environmental law as the most significant development in environmental law during that period. Richard Lazarus gave a great presentation noting that the last time President Obama uttered the words “climate change” in public occurred during a January 2011 White House joint press conference in response to remarks on the issue by Chinese President Hu Jintao. Pace Professor John Nolan gave a wonderful presentation on the importance of land use and energy efficiency initiatives to sustainable development. I also attended a terrific presentation on water law by Professors Reed Benson (New Mexico) and Noah Hall (Wayne St. visiting at Michigan).

On Saturday March 24 Environmental Law Institute President John Cruden gave a wonderful keynote address to the NAELS conference. He argued that environmentalists should stop grading themselves based on federal legislative activity and instead should focus on what people actually are doing. He stressed the need to improve technology for cleaning up oil spills, the importance of promoting judicial independence (he noted that ELI has just trained its 1000th judge), and why aggressive enforcement is needed to level the playing field for corporations who take the environmental laws seriously.

The Exxon Valdez, the oil tanker that leaked 11 million gallons of crude oil in Prince William Sound Alaska in March 1989, is reportedly on its way to be scrapped by ship breakers in India. The ship, which has been renamed several times in an effort to escape the spill’s stigma, is now called the Oriental Nicety. The ship recently was sold to Best Oasis, a company based in Hong Kong that is the wholly-owned subsidiary of an Indian company. Austin Baird, Infamous Exxon Valdez Appears Headed for Scrapping in India, Washington Post, March 24, 2012, at A16.

Last week a group of 35 Nigerian villages sued the Netherlands-based Royal Dutch Petroleum Company (Shell) in a British court. The plaintiffs allege that the company’s failure promptly to clean up two oil spills in the Niger Delta in 2008 destroyed both the environment and their livelihoods. Shell argues that most environmental harm in the area is caused by sabotage of pipelines. Nigeria: Villages Sue Shell Oil, N.Y. Times, March 24, 2012.

On March 23 federal district judge Amy Berman Jackson overturned EPA’s January 2011 decision to rescind a permit for the Spruce No. 1 mountaintop coal mining project by Arch Coal in West Virginia. The permit had been issued by the Bush administration in 2007, but the Obama administration EPA had determined that the project, which would bury several miles of streams, would cause unacceptable environmental damage. EPA’s decision represented only the second time in 40 years that a permit had been rescinded. Judge Jackson ruled that EPA did not have the authority to revoke the permit. John M. Broder, Court Reverses EPA on Big Mining Project, N.Y. Times, March 24, 2012.