The (Somewhat Puzzling) Trajectory of CERCLA Litigation

by Daniel Farber | December 15, 2010

Cross-posted from Legal Planet.

I thought it might be interesting to see the general trajectory of CERCLA litigation over the years.  The figures for reported court decisions are readily available on Westlaw. (I searched for CERCLA or Superfund by year.) Part of the trajectory makes sense, but part is puzzling.

There’s a clear pattern up through 2002 that’s fairly easy to understand.  CERCLA cases began slowly, with one in 1981 and 11 in 1982.  The number of cases per year then builds steadily until at peak of 356 cases in 1993.  After the peak, the number slowly subsides to 155 in 2002.  That pattern seems to make sense for a new law that is mostly designed to fix a finite set of existing sites.

You would expect the number of cases to continue declining or maybe to stabilize at around 150 for a while.  But that’s not what happened. In 2003 the number of cases began to rise again, and by 2006 the number was back up to 267. For comparison purposes, that’s higher than any year before 1991 or any prior year after 1996 or any year before 1991.  The rate has remained around that level ever since, with a slight dip in 2008 but returning to 269 in 2009.

Note that the turnaround occurred during the Bush Administration after a steady decline during the second Clinton Administration, so presumably this isn’t due to a ...

False Choices: Senator Warner's Plan to Adopt a Regulation, Drop a Regulation

by Sidney Shapiro | December 14, 2010
A particularly revealing story in The Washington Post this weekend reported on a sordid tale of regulatory failure that may have helped contribute to this spring and summer’s outbreak of outbreak of egg-borne salmonella that sickened more than 1,900 people and led to the largest recall of eggs in U.S. history. In an agonizing case of closing the chicken coop door after the tainted eggs had escaped, FDA finally adopted a long-delayed regulation in July – two months after the outbreak ...

EPA Carbon Regulations Clear First Hoop in D.C. Circuit

by Amy Sinden | December 14, 2010
A federal appeals court's decision on Friday refusing to block implementation of EPA’s first limits on carbon pollution from cars, power plants, and factories is good news for inhabitants of planet Earth. A coalition of industry groups, right wing think tanks, and the state of Texas had asked the court to grant a stay blocking EPA’s rules from going into effect while their litigation challenging those rules goes forward.  But a three-judge panel of the D.C. Circuit Court of Appeals (including ...

Full Speed Ahead!

by Daniel Farber | December 13, 2010
Cross-posted from Legal Planet. On Friday the D.C. Circuit rejected efforts to stay EPA’s pending greenhouse gas regulations until the court decides the merits of the appeals.  It could well take a year or more for the merits to be decided, so in the meantime EPA can move forward. The court order does not indicate any view on the merits of the cases, but the court clearly rejected the doomsday scenario painted by industry and the state of Texas: Petitioners ...

The "State Sovereignty Wildlife Management Act" is as Ridiculous as it Sounds

by Dan Rohlf | December 07, 2010
Apparently feeling their oats after the Republicans captured control of the U.S. House in November’s elections, several GOP representatives from western states are already galloping out of the gates to attempt to roll back species protections in the West. They’ve initially set their sights on gray wolves in the Northern Rocky Mountains, which were returned to the Endangered Species Act’s protected list by a court decision in August. A leader of the anti-wolf posse is Rep. Rob Bishop of Utah, ...

AEP v. Connecticut: Will the Supreme Court Shut the Door Again?

by Alice Kaswan | December 06, 2010
The environmental blogosphere is already abuzz over the Supreme Court’s grant of certiorari in AEP v. Connecticut. The case is of critical importance in determining whether the courts have a role to play in adjudicating climate change. Few believe that the courts are a good venue for developing climate policy. But for the foreseeable future, the question is whether the traditional common law can fill in for Congress’ failure to take more comprehensive action. In AEP, Connecticut, along with several other states and ...

SCOTUS Grants Cert in AEP v. Connecticut; Why the Threat of Tort Liability Should Remain as Part of the Balance of Powers

by Douglas Kysar | December 06, 2010
The Supreme Court this morning granted certiorari in the case of American Electric Power Co. v. Connecticut, a common law nuisance suit seeking an order compelling large electric utility companies to reduce their contributions to global climate change. At issue will be a variety of doctrines – such as standing and political question – that nominally originate from constitutional limitations on the role of the judicial branch, but that judges have, over the years, expanded well beyond the text and structure ...

Links: The EPA at 40

by Ben Somberg | December 06, 2010
With the 40th anniversary of EPA last week, there's been some useful writing on the big picture of the history. I wanted to highlight: Steve Cochran at EDF has the first in a series on the Clean Air Act and its record of protecting us from pollutants. Post one: the acid rain program. Ruth Greenspan Bell at World Resources Institute takes us through some of the history to show that for EPA regulations, cost predictions are overstated. Lisa Jackson outlined her ...

Maryland Submits Chesapeake Bay Cleanup Plan; Here's A First Look

by Yee Huang | December 03, 2010
Maryland submitted its final Phase I Watershed Implementation Plan for Chesapeake Bay restoration this afternoon. It's the strongest blueprint of any of the states, and if implemented and funded sufficiently would allow Maryland to achieve its needed share of pollutant reductions. Maryland has pledged to implement, by 2017, the pollutant controls necessary to achieve 70% of its needed reductions, and to an accelerated timeline by implementing all necessary pollutant controls by 2020. The plan has the most promise of any ...

Double Duty: Will the Montreal Protocol Some Day be Used to Combat Climate Change?

by Yee Huang | December 02, 2010
a(broad) perspective In 1974, atmospheric scientists discovered that chlorofluorocarbons (CFCs) were causing the alarming depletion of the protective ozone layer that shields all life on Earth from the harmful ultra-violet radiation from the sun. These CFCs were present as propellants in aerosol cans and also used as refrigerants. The global scientific consensus and the severity of ozone depletion motivated the international community to establish the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), one of the most successful international ...

Procedural Maze Continues for Vehicle Efficiency Regulation

by Lena Pons | December 01, 2010
Update: EPA and NHTSA have issued the Supplemental Notice of Intent. The regulatory process is often complex: agencies must balance opportunities for public comment, complex scientific information, and economic analysis, all while trying to craft a program that fulfills a legal mandate. But when it comes to crafting proposals for vehicle fuel economy and greenhouse gas standards, the process has become an administrative nightmare. In May, President Obama announced plans for the EPA and National Highway Traffic Safety Administration (NHTSA) to ...

Most Chesapeake Bay Watershed States Submit Cleanup Plans; A First Look at Virginia's

by Yee Huang | November 30, 2010
Yesterday was the deadline for Bay states and the District of Columbia to submit their final Phase I Watershed Implementation Plans (WIP). These WIPs are roadmaps that describe how Bay jurisdictions will meet their pollutant reduction obligations under the Bay TMDL. Delaware, the District of Columbia, Pennsylvania, Virginia, and West Virginia submitted their plans by the deadline, while Maryland expects to submit in the coming days. New York, which has taken a position essentially in opposition to the Bay TMDL, has not said ...

FWS' Critical Habitat Area Designation for Polar Bears is Good News, but How Much Difference Will it Make?

by Dan Rohlf | November 30, 2010
First the good news: the U.S. Fish and Wildlife Service (FWS) last week designated a huge expanse of barrier islands, denning areas, and sea ice in the Arctic as “critical habitat” for polar bears under the federal Endangered Species Act. The largest such protected area in the ESA’s history, the new critical habitat covers an area larger than the states of Oregon and Washington combined. FWS listed polar bears as “threatened” in 2008, after a petition from environmental organizations and ...

CEQ Finalizes Guidance for Categorical Exclusions

by Holly Doremus | November 24, 2010
Cross-posted from Legal Planet. The White House Council on Environmental Quality has issued the first of three expected final guidance documents for federal agencies implementing the National Environmental Policy Act. This one, which covers the use of categorical exclusions, is an excellent start. NEPA is the “look before you leap” environmental law. It requires that federal agencies publicly evaluate environmental impacts before taking action. That means preparing an Environmental Impact Statement before taking actions that significantly affect the quality of ...

Coal Ash Comments Submitted: Get Serious, Please

by Ben Somberg | November 19, 2010
"In order for CBA [cost benefit analysis] to be workable, regulators need to have a relatively restricted range of possibilities." That's what OIRA Administrator Cass Sunstein wrote in a 2007 book. So how about from $82 billion to negative $251 billion, a third of a trillion dollars – is that a relatively restricted range? Those are the estimated net benefit figures, over 50 years, in the Regulatory Impact Analysis (RIA) for EPA's "strong" coal ash regulation proposal. Do those numbers ...

Jacob Lew Confirmed as Director of OMB

by Ben Somberg | November 19, 2010
Senator Mary Landrieu released her hold on the nomination of Jacob Lew for Director of the Office of Management and Budget, and the Senate confirmed Lew by voice vote Thursday evening. Back when Lew had his confirmation hearings, CPR President Rena Steinzor wrote here about the challenges Lew will face on the regulatory front ("OMB Nominee Jacob Lew, Meet Broken Regulatory State"). ...

War on Regulation Coming to the States? Why IPI's Plan For Centralized Regulatory Review Isn't What We Need

by Rena Steinzor | November 17, 2010
One of the most powerful sleights of hand achieved by Republicans during the last election cycle was their renewed declaration of war on regulation. It’s no secret which of their interest groups are most passionate about this aspect of their agenda. Tuesday's LATimes previewed a plan by the Chamber of Commerce, to be announced today, to further unleash its lobbying legions against regulations as soon as the new congress is anointed. But it's unlikely the Chamber will get too specific on which popular ...

Welcome Clarity and Few Surprises in EPA's Guidance on Greenhouse Gas Permitting

by Victor Flatt | November 17, 2010
Last week the EPA released its “PSD and Title V Permitting Guidance For Greenhouse Gases.” This Guidance was designed to give the states direction in how to implement permitting requirements for new sources for other criteria pollutants that also produce greenhouse gases on January 2, 2011, and new sources of greenhouse gases following in May, 2011, under the Clean Air Act’s Prevention of Significant Deterioration Program. The Guidance does an excellent job of summarizing and explaining how the EPA’s current PSD ...

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