Jarkesy’s Potential Implications for EPA Administrative Proceedings
On June 27, 2024, the U.S. Supreme Court decided SEC v. Jarkesy,[1] holding that when the Securities and Exchange Commission (SEC) alleges a defendant has violated securities antifraud provisions and seeks civil penalties, the defendant is entitled to a jury trial in federal court under the Seventh Amendment. The ruling restricts the SEC’s use of its own in-house administrative tribunal with its own administrative law judges (ALJs), which the SEC has historically used to pursue antifraud claims. While the Court’s ruling focuses on the SEC, the principles underlying the decision may be applied more broadly to restrict the ability of other federal agencies, including the Environmental Protection Agency (EPA), to pursue civil penalties via their own administrative proceedings.
Fifth Circuit Limits EPA’s Attempts to Regulate PFAS Under Toxic Substances Control Act in Inhance Technologies v. EPA
On March 21, 2024, the U.S. Court of Appeals for the Fifth Circuit vacated two U.S. Environmental Protection Agency (EPA) orders under Section 5 of the Toxic Substances Control Act (TSCA), holding that EPA had exceeded its statutory authority when it issued the orders in an attempt to regulate the manufacture of per- and polyfluorinated substances (PFAS) by petitioner Inhance Technologies, LLC (Inhance). The Fifth Circuit’s decision comes after EPA’s Office of Enforcement and Compliance Assurance announced its National Enforcement and Compliance Initiatives for Fiscal Years 2024 – 2027, which involve increased emphasis on addressing PFAS exposure and contamination through enforcement actions and potential additional regulations.
FERC v. Powhatan Energy Fund, LLC Saga Ends With Default Judgment Against Powhatan Energy Fund
On March 22, 2023, the U.S. District Court for the Eastern District of Virginia (Court) granted the Federal Energy Regulatory Commission’s (FERC) Motion for Default Judgment and entered a default judgment against Powhatan Energy Fund, LLC (Powhatan Energy Fund). The Court awarded FERC $3,465,108 in disgorgement and $16,800,000 in civil penalties.
Third Circuit Rejects Challenges to Decades-Old Consent Decree
On January 6, 2023, the U.S. Court of Appeals for the Third Circuit rejected several challenges to a consent decree (CD) originally entered in 1996. United States v. Brace et al. involved conduct on defendant’s farm that allegedly violated the 1996 consent decree. Defendant argued that the CD was unenforceable because it was ambiguous and that a government official had approved of the allegedly violative actions. The Third Circuit rejected these arguments and upheld the district court’s ruling that defendant had violated the CD.
D.C. Circuit Rejects Challenge to CERCLA Site Listing
On July 8, 2022, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) rejected a challenge to the listing of a groundwater contamination plume on the National Priorities List (NPL). The decision in Daikin Applied Americas, Inc. v. EPA reaffirms the difficulty that attends challenging NPL listings as well as the wide latitude Congress granted the Environmental Protection Agency (EPA) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to define the scope of Superfund sites during the listing process. (more…)
Supreme Court Upends EPA’s Broad Claims of Climate Regulatory Authority
On Thursday, June 30, the U.S. Supreme Court released its decision in West Virginia v. EPA, holding that the Environmental Protection Agency (EPA) exceeded its statutory authority in adopting the Obama-era Clean Power Plan (CPP). The 6–3 decision may limit EPA’s ability to address greenhouse gas (GHG) emissions comprehensively. A summary of the Court’s reasoning is set out below, followed by four “key takeaways.” (more…)
First Circuit Holds State Administrative Enforcement Does Not Bar a Subsequent Clean Water Act Citizen Suit for Injunctive Relief
On April 28, 2022, the U.S. Court of Appeals for the First Circuit, sitting en banc, considered in Blackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc. et al. whether a state consent order settling claims under a state analogue to the federal Clean Water Act (CWA) barred a subsequent citizen suit brought under the CWA seeking injunctive and declaratory relief arising out of the same alleged discharges. Over 30 years before, in North and South Rivers Watershed Ass’n v. Town of Scituate, the First Circuit held that CWA enforcement barred subsequent citizen suits arising out of the same alleged violations, regardless of the type of relief sought. In Blackstone, the en banc First Circuit overruled Scituate and held that the prior state consent order bars only citizen suits seeking civil penalties. (more…)
Sixth Circuit: Long-Litigated Superfund Claims Barred by Statute of Limitations
On April 25, 2022, the U.S. Court of Appeals for the Sixth Circuit addressed the application of the statute of limitations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) in Georgia-Pacific Consumer Products LP et al. v. NCR Corp. NCR is the latest in a long line of cases stemming from PCB contamination related to carbonless copy paper manufacturing and recycling. In NCR, the court concluded that the claims of Georgia Pacific (GP) against NCR, International Paper, and Weyerhaeuser for costs stemming from a series of administrative settlements and court judgments were barred by CERCLA’s statute of limitations. (more…)
Texas Supreme Court Holds Texas Commission on Environmental Quality Definition of “Operator” Controls Over Judicial Interpretation
On February 11, 2022, the Supreme Court of Texas issued its opinion in Texas Environmental Quality et al. v. Maverick County, et al., a case that addressed the meaning of the term “operator” in the context of the application for an issuance of Texas Pollution Discharge Elimination System (TPDES) permits. Maverick County provides clarity about who must apply for a TPDES permit, particularly in the context of facilities owned by one entity but operated day-to-day by another. The decision also provides a helpful analysis of what definitions govern when a judicial interpretation differs from the language provided by an agency pursuant to its statutory authority. (more…)