Section of Environment, Energy, and Resources

Environmental Litigation and Toxic Torts Committee

2009-2010 Committee Chair:

Michael David Freeman, Balch & Bingham LLP, Birmingham, AL

Message from the Chair

Welcome to the Environmental Litigation and Toxic Torts Committee homepage. My name is Mike Freeman and I'm the current Chair of the Committee. Our Committee offers you unparalleled opportunities to learn and teach about emerging issues and cases in the environmental and toxic tort area. As a member, you have the opportunity to author articles for the Committee newsletters, propose a QuickTeleconference on a hot topic or make a proposal for a CLE program at one the Section’s annual meetings. All you need to do is let us know of your interest. Below are the Committee Vice Chairs to contact to get involved.

Newsletter – The Committee plans to publish three newsletters during the coming year. One is scheduled to be published in 2008 and two will be published in 2009. The spring 2009 newsletter will be jointly published with the Agricultural Management Committee and will focus on recent litigation confronting the agricultural industry. Committee newsletters provide an excellent opportunity to get involved. If you are interested in submitting an article or have an idea you would like to discuss, please contact our Newsletter Vice Chair, Geraldine E. Edens.

Membership – The Committee is always looking for ways to serve its existing members, create opportunities for new and long-term members to become involved, and attract new members. We are focused this year on attracting young lawyers and law students and will continue our efforts to also recruit policy-makers and consultants. If you have ideas about how we can better serve our members or recruit new ones, contact our Membership Vice Chair, Julia A. Bailey Dulan.

Programs – The Committee would like to host and sponsor several Quick Teleconferences and CLE Seminars this upcoming year. To do so, we need your help and ideas. Topics for programs sponsored in the past include Global Warming Litigation, Natural Resource Damage Litigation and a mini-trial of a petroleum contamination case. If you have ideas or suggestions for future topics or would like to volunteer to host a QuickTeleconference or CLE, contact our Vice Chair for Programs, Jennifer Simon.

Public Service – An important part of what we do needs to public service related. The Vice Chair of Public Service is Gilbert Rogers.

Technology – Otis McGee, Jr. is the Committee’s Vice Chair of Technology. Please take a moment to explore the links listed on this webpage, which will take you to our latest newsletters, hot cases and Committee leaders. We would like to enhance our webpage to give members access to the most current and emerging issues, to communicate about Committee activities, and to sponsor dialogue and discussion. If you have ideas for how we could do this, please contact Otis McGee, Jr.

The Year In Review – Each year, the Committee contributes a chapter on litigation for the “The Year in Review.” This ABA publication provides an excellent summary of the most significant events in the field. If you are interested in working on The Year in Review for our Committee, please contact our The Year in Review Vice Chair, Daniel M. Krainin.

E-mail Case Updates – The Committee will begin sending “Hot Off the Presses” updates to our members via our list-serve. By doing so, we hope to keep you abreast of interesting developments in environmental and toxic torts litigation. If you know of a case meriting such attention, please let us know. We are looking for recently filed cases; jury verdicts, trial court decisions and appellate court opinions. We will need a copy of the complaint or decision and a very short summary of its importance. Please send your suggestions to me (Mike Freeman).

I encourage you to become actively involved in our Committee. If you have any questions, please feel free to contact me or any of the Committee Vice Chairs.

Mike Freeman

Hot Off the Presses

Georgia Appeals Court Rules CO2 Not a Regulated Pollutant Under the Clean Air Act

On July 7, 2009, a Georgia appellate court vacated a lower court decision invalidating a permit issued to Longleaf Energy for construction of a coal fired power plant in Early County, Georgia. The appellate court ruled that CO2 is not a regulated pollutant under the Clean Air Act and, therefore, the permit in question need not include controls for CO2. In 2004, Longleaf applied for a preconstruction air quality permit for a proposed power plant. In 2007, the Georgia Environmental Protection Division issued a permit to Longleaf authorizing construction of the plant. The permit did consider or contain emission limitations or controls for CO2. Friends of the Chattahoochee and the Sierra Club challenged the permit. Following an unsuccessful hearing before an administrative law judge, the challengers appealed to the Fulton County Superior Court. The Superior Court agreed with the challengers and ruled that the ALJ erred in affirming the permit. The Superior Court held the permit invalid because it failed to consider, limit or control for CO2. The Georgia Court of Appeals reversed this part of the decision and remanded. The Court of Appeals concluded that no Clean Air Act provision or Georgia statute or regulation controls, limits or regulates CO2 emissions. Accordingly, CO2 is not a regulated pollutant under the Clean Air Act and the permit was not required to contain any CO2 emissions limitations or controls.

Case: PDF File
Posted: September 4, 2009

Supreme Court Rules Shell Oil Company Not Liable under CERCLA

The United States Supreme Court has ruled that Shell Oil Company is not liable under CERCLA as an "arranger" for the delivery of hazardous substances to a contaminated site. Reversing the Ninth Circuit a Court of Appeals, the Supreme Court ruled that Shell did not qualify as an arranger under 42 U. S. C. §9607(a). Beginning in 1960, Brown & Bryant, Inc. (B&B), operated an agricultural chemical distributorship on a parcel of land located in Arvin, California. B&B later expanded onto an adjacent parcel owned by Burlington Northern and Santa Fe Railway Company and Union Pacific Railroad Company ("the Railroads"). As part of its business, B&B purchased D-D, a pesticide, from Shell. The site became contaminated due to spills of various chemicals, including D-D, during transfers and deliveries, and as a result of equipment failures. In 1989, the California Department of Toxic Substances Control and the EPA (collectively, "the Government") cleaned up the site pursuant to the authority granted them by CERCLA, spending over $8 million. The Government sued Shell and the Railroads to recover the cleanup costs. The district court found the Railroads liable because they were owners of a portion of the site, and found Shell liable because it had "arranged for" the disposal of hazardous substances through its sale and delivery of D-D to B&B. Based on numerous factors, the court apportioned the Railroads' liability as 9% of the Governments' total response cost and apportioned Shell's liability as 6% of the total site response cost. On appeal, the Court of Appeals affirmed the district court's finding that Shell could be viewed as an "arranger" under the Act, but reversed the district court's apportionment of the costs, thus, holding the Railroads and Shell jointly liable for all the damages. The Supreme Court reversed the Ninth Circuit. In so doing, the Court held that Shell could not be held liable as an "arranger" under the Act because Shell's mere knowledge of spills and leaks of D-D at the site provided insufficient evidence to conclude that it "arranged for" disposal of hazardous substances in light of the fact that it took numerous steps to encourage distributors of its product to reduce the likelihood of spills. Moreover, the Supreme Court reversed the Court of Appeals rejection of the district court's cost apportionment, holding that relying on the percentage of the total area of the facility that was owned by the Railroads, the duration of B&B's business divided by the term of the Railroads' lease, and the court's determination that only two polluting chemicals (not D-D) spilled on the leased parcel required remediation and that those chemicals were responsible for roughly two-thirds of the remediable site contamination, provided a reasonable basis for the 9% apportionment of the clean up cost to the Railroads.

Case: PDF File
Posted: May 12, 2009

North Carolina Judge Orders TVA to Install Pollution Controls on Coal-Fired Plants in Tennessee and Alabama

On January 13, 2009, Judge Lacy Thornburg of the United States District Court for the Western District of North Carolina, issued a decision, ordering the Tennessee Valley Authority ("TVA") to install additional pollution controls on four of its coal fired power plants located in Tennessee and Alabama. The case was brought by North Carolina's Attorney General and accused TVA of creating a public nuisance through its emissions in Tennessee, Alabama and Kentucky that drifted into North Carolina. According to North Carolina, these emissions caused and aggravated health problems and adversely impacted North Carolina's environment. Judge Thornburg agreed, in part, finding that four the TVA facilities within 100 miles of the North Carolina border -- Bull Run, Kingston, John Sevier (all of which are located in Eastern Tennessee) and Widows Creek (located in Alabama) -- emitted levels of pollutants which constituted a public nuisance. Judge Thornburg granted North Carolina request for an injunction and ordered TVA to install and operate pollution control measures -- namely, scrubbers and selective catalytic reduction -- to control air emissions from these plants. Judge Thornburg found for TVA with respect to all TVA plants located more than 100 miles from North Carolina.

Case: PDF File
Posted: January 23, 2009

About the Committee

The Environmental Litigation and Toxic Torts Committee is one of the largest and most diverse committee in the Section. We are over 900 lawyers strong with members from most every State and several countries. In addition to our geographical diversity, our members represent all sides of the environmental equation. While some committee members regularly represent environmental groups and injured plaintiffs others routinely defend such cases. We also benefit from the participation of several lawyers in academia and others that work for state and federal agencies and law enforcement.

But regardless of what we do and who we represent, we all share a common interest in the subject of environmental and toxic tort litigation. And this committee provides us a wonderful platform to share information and ideas.

The goal of the committee is straightforward. Provide a forum and resources for lawyers interested in environmental and toxic tort litigation. We strive to keep abreast of emerging trends in both substantive and procedural areas and to share those with you. We do this through our webpage, Newsletter, programs we sponsor and our ListServe. While most of the work is done by the committee’s vice chairs, we welcome help and hope you will consider taking a more active role in our committee.