In 2009, the Supreme Court gave its horrendous decision in Burlington Northern & Santa Fe Railway Co. v. U.S. EPA lost in District Court, won at the Court Of Appeals, but lost when companies appealed to the Supreme Court.
A competent court decision required that all companies are 100% liable or that EPA and companies must determine cleanup percentages, as with most, if not all, other Superfund sites.
No one argued EPA had any liability, EPA had zero liability, which all rested with the polluting companies. The four viable companies each argued they had no liability—scorched earth approach.
The court instead applied a flawed liability formula of its own making and simply added the fractions that don’t = 100%. The court’s math = 87%, which is impossible since cleanup costs must be 100%.
The court made a fundamental math error when it multiplied and added fractions.
The process invariably leads to smaller and smaller fractions, the added result is less than 100%. Justices’ flawed formula resulted in EPA (we) paying 13% of the costs to cover the court’s gap, for viable major companies. Worse, the court let Shell Oil off the hook.
The case, which originated in 1992 when Shell Oil sued the State of California, was finally decided by the Supreme Court in 2009! That’s what well-heeled companies do. Think about it.
The West Virginia Et Al. V. Environmental Protection Agency et al., EPA, October Term, 2021, Supreme Court decision greatly impedes EPA’s ability per the Clean Air Act.
EPA sought tighter emissions from coal plants to limit pollution impacting downwind states and reduce numerous pollutants and CO2. The Court ruled that Congress had not given EPA the sweeping authority to regulate the energy industry and that CO2 could not be regulated under the CAA nor was it relevant.
The CAA requires EPA to establish national air quality standards based on the latest science. States must adopt plans to achieve the standards within three years.
Plans must control emissions that cross state lines and impact air quality in downwind states. Congress designed the law to minimize pollution increases from growing numbers of motor vehicles, and from stationary sources (power plants, industrial plants, etc).
The law requires new stationary sources to be built with the best technology and allows less stringent standards for existing sources. It also includes a “good neighbor” provision to limit interstate air pollution and prohibit significant emissions that contribute to nonattainment or interfere with air quality standards in other states.
The CAA states that the EPA can regulate metals and other chemicals and toxins emitted by coal power plants (SO2 (acid rain), NOx (ozone), etc.). Congress rewrote provisions in 1990 because the EPA had only regulated some sources of seven pollutants.
The court ruled Congress did not intend to regulate CO2 or address climate change, regardless of whether other CAA pollutants are involved.
Moreover, one justice laughed at the “good neighbor” part of the law, saying wind is multidirectional; you can’t address or determine downwind impacts.
This ludicrous “finding” flies in the face of Law and science. Northeast states are downwind of major coal plants in Ohio, W.VA… Our weather trends west to east, westerly, it’s how we get acid rain in the northeastern states including NYC area.
Several related Supreme Court CAA cases have been going this way since 2016 (10/2023, 6/2024). The court’s 6/2024 decision kicks remaining aspects back to lower Courts for burial with disparaging comments against EPA.
In Sackett Et Ux. V. Environmental Protection Agency Et Al., 2022, the Supreme Court limited EPA’s ability under the Clean Water Act to address water pollution through regulating discharges to wetlands.
The court ruled CWA does not allow EPA to regulate discharges into wetlands “near” bodies of water unless there is “a continuous surface connection” to those waters.
Ruling “CWA’s use of “waters” in §1362(7) refers only to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ ” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection.”
This is contrary to science and how wetlands and groundwater function. It’s now up to (back to) states to regulate (or not) “non-continuous” wetlands.
Consider how we arrived at the major destruction and pollution of wetlands. Consider LA and TX’s wanton destruction of wetlands for oil and gas exploration, drilling, and pipeline channels or Florida’s destruction of the Everglades.
Another case involved a company I once worked for, Kerr McGee, and a who’s who of US companies. A 160-acre drum dump in Hardage Criner, Oklahoma, industrial chemicals and carcinogens.
Companies had 100+ well-paid attorneys focusing on the minutia of CERCLA cleanups. EPAs’ Remedy required the cleanup of worst hot spots coupled with monitoring.
That’s how the EPA handles such cases nationally. Companies shredded the EPA/DOJ’s defense. Moreover, Oklahoma’s DOH reversed its “findings” and supported the companies in court.
The court ruled that the EPA was arbitrary and imposed a remedy of “No Action with Monitoring,” basically capping, passive monitoring, passive vapor collection, and passive surface runoff collection forever.
Since the late 1980s, the site has remained under the jurisdiction of the U.S. District Court for Western Oklahoma. This is a court-overseen remedy, not an EPA or CERCLA remedy.
In another case involving my former company, EPA/DOJ sued in N.Y. District Court, alleging fraudulent conveyance.
The company allegedly stripped off all its environmental problems into a holding company. (This also tripled KM’s stock value). The holding company went bankrupt just before the statute of limitations expired.
In 2015, EPA won a fraudulent conveyance decision and a $5 billion penalty.
Unfortunately, EPA/DOJ sued civilly not criminally. No one went to jail. Just money, white-collar shenanigans. The IRS never got involved. DOJ claimed it didn’t have the resources or time to sue criminally.
EPA detailed 15$ billion for 2,700 sites in 47 states, including a horrendous uranium mining and milling legacy (recall Karen Silkwood). The Court disregarded EPA’s estimates based on work to date and reduced the total. Now we are responsible for all those former KM Sites.
The company threatened to appeal. A person I once worked with said the successor company was legally tapped out fighting its 15% stake in the Deep Water Horizon fiasco. Money talks.
Oil, gas, uranium mining, and coal companies are among the top tier for poor environmental practices.
How courts interpret environmental matters is problematic. Specious arguments of original textualism are a joke that ignores law and STEM—rulings may be based on a poor understanding of science and natural complexity and ignore environmental Law.
Environmental rulings can be moderately competent, barely competent, or incompetent. Supreme Court is a misnomer not applicable for an advanced country based on STEM that’s changed and evolved beyond so-called originalism—another misnomer. Justices with little STEM education make decisive rulings in highly scientific spheres and greatly impact society.
STEM education is failing in this country, and the ramifications are far-reaching beyond what many suspect. Justices are not current.
How about judges have term limits? Welcome to the modern world. More than 17,000 EPA Court cases are potentially impacted by the new Chevron ruling.
Maybe worse, President Nixon created EPA through executive order to improve his flagging ratings because he couldn’t get his EPA Bill through Congress. EPA exists today by that executive order. To say I am troubled is understatement.
Stephen Cipot
Garden City Park
