Justia U.S. 6th Circuit Court of Appeals Opinion SummariesArticles Posted in Environmental Law
PolyOne Corp. v. Westlake Vinyls, Inc.
Goodrich operated chemical-manufacturing plants at a Calvert City, Kentucky industrial site. In 1988, the Environmental Protection Agency designated the site a “Superfund Site” subject to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601. PolyOne and Westlake disputed their share of the cleanup costs. The parties entered a settlement agreement in 2007: PolyOne must reimburse Westlake for 100% of “allocable costs,” and every five years, either party may demand arbitration to modify the amount or allocation of costs. Either party may file a complaint in federal court for a “de novo judicial determination” of which costs are allocable after the arbitration panel has issued an award. The arbitration award becomes null-and-void upon the filing of a complaint; the Agreement prohibits either party from even admitting the arbitration award into evidence. PolyOne requested a declaration that the judicial-relief provision is invalid under the Federal Arbitration Act (FAA), 9 U.S.C. 9 and that the Agreement’s other arbitration provisions are unenforceable. The Sixth Circuit affirmed the denial of injunctive and declaratory relief. PolyOne has a strong case but its prior conduct does not align with its present position. Twice, PolyOne demanded arbitration. PolyOne seeks to enjoin the very arbitration it demanded in 2017. The court withheld judgment on whether PolyOne has waived its ability to challenge the arbitration provisions in the future. View "PolyOne Corp. v. Westlake Vinyls, Inc." on Justia Law
Ammex, Inc. v. Wenk
The Clean Air Act directs the Environmental Protection Agency (EPA) to establish National Ambient Air Quality Standards (NAAQS) for certain air pollutants, 42 U.S.C. 7409. Each state must propose a state implementation plan (SIP) that “specif[ies] the manner in which national . . . ambient air quality standards will be achieved and maintained” for approval by the EPA. A 1990 CAA amendment set a national Reid Vapor Pressure (RVP) standard for gasoline. In 2004, the EPA informed Michigan that eight counties in southeast Michigan were “nonattainment” areas for the ozone NAAQS. In response, Michigan enacted the “Summer Fuel Law” to limit the RVP for gasoline sold during the summer months within those eight counties. After concluding that the revised RVP standards were “necessary” for the attainment of the ozone NAAQS, the EPA approved the incorporation of the Summer Fuel Law into Michigan’s SIP. Ammex unsuccessfully sought a preliminary injunction to prevent the Michigan Department of Agriculture and Rural Development from enforcing the Summer Fuel Law, arguing that the standard violates the Supremacy Clause and dormant Foreign Commerce Clause of the United States Constitution. The Sixth Circuit affirmed the denial of the motion. MDARD’s enforcement of the standard is the enforcement of federal law. View "Ammex, Inc. v. Wenk" on Justia Law
Guertin v. Michigan
As a cost-saving measure, Flint's municipal water supply was switched from the Detroit Water and Sewerage Department (DWSD) to the Flint River and was processed by an outdated and previously mothballed water treatment plant, with the approval of Michigan regulators and an engineering firm, and distributed without adding chemicals to counter the river water’s known corrosivity. Within days, residents complained of foul smelling and tasting water. Within weeks, some residents’ hair began to fall out and their skin developed rashes. Within a year, there were positive tests for E. coli, a spike in deaths from Legionnaires’ disease, and reports of dangerously high blood-lead levels in Flint children. The river water was 19 times more corrosive than the Lake Huron water pumped supplied by DWSD; without corrosion-control treatment, lead leached out of the lead-based service lines. The district court dismissed many claims and defendants in a suit by residents. The remaining defendants appealed with respect to the remaining 42 U.S.C. 1983 claim--that defendants violated their right to bodily integrity as guaranteed by the Substantive Due Process Clause. The Sixth Circuit concluded that plaintiffs pled a plausible Due Process violation regarding some defendants, rejecting their qualified immunity claims. The court reversed as to other defendants; plaintiffs alleged mere negligence, not a constitutional violation, against them. The court rejected a claim that the city was entitled to Eleventh Amendment immunity based on Michigan's takeover of the city under the “Emergency Manager” law. View "Guertin v. Michigan" on Justia Law
Tennessee Clean Water Network v. Tennessee Valley Authority
Tennessee Valley Authority (TVA) operates the coal-fired electricity-generating Gallatin Fossil Plant on a part of the Cumberland River called Old Hickory Lake, a popular recreation spot. The plant supplies electricity to approximately 565,000 households in the Nashville area but generates waste byproducts, including coal combustion residuals or coal ash. The plant disposes of the coal ash by “sluicing” (mixing with lots of water) and allowing the coal ash solids to settle unlined man-made coal ash ponds adjacent to the river. The plant has a permit to discharge some coal combustion wastewater, which contains heavy metals and other pollutants, into the river through a pipe. Other wastewater is allegedly discharged through leaks from the ponds through the groundwater into the Cumberland River, a waterway protected by the Clean Water Act (CWA), 33 U.S.C. 1251. The district court found that TVA violated the CWA because its coal ash ponds leak pollutants through groundwater that is “hydrologically connected” to the Cumberland River without a permit. The theory is called the “hydrological connection theory” by the federal Environmental Protection Agency (EPA). The Sixth Circuit reversed, finding no support for the hydrological connection theory in either the text or the history of the CWA and related environmental laws. View "Tennessee Clean Water Network v. Tennessee Valley Authority" on Justia Law
Kentucky Waterways Alliance v. Kentucky Utilities Co.
Kentucky Utilities (KU) burns coal to produce energy, then stores the leftover coal ash in two man-made ponds. Environmental groups contend that the chemicals in the coal ash are contaminating the surrounding groundwater, which in turn contaminates a nearby lake, in violation of the Clean Water Act (CWA), 33 U.S.C. 1251(a), and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6902(a). The Sixth Circuit affirmed, in part, the dismissal of their suit. The CWA does not extend liability to pollution that reaches surface waters via groundwater. A “point source,” of pollution under the CWA is a “discernible, confined and discrete conveyance.” Groundwater is not a point source. RCRA does, however govern this conduct, and the plaintiffs have met the statutory rigors needed to bring such a claim. They have alleged (and supported) an imminent and substantial threat to the environment; they have provided the EPA and Kentucky ninety days to respond to those allegations, and neither the EPA nor Kentucky has filed one of the three types of actions that would preclude the citizen groups from proceeding with their federal lawsuit, so the district court had jurisdiction. View "Kentucky Waterways Alliance v. Kentucky Utilities Co." on Justia Law
Martin v. Behr Dayton Thermal Products, LLC
In 2008, plaintiffs filed a class action concerning 540 properties in Dayton’s McCook Field neighborhood, alleging that the groundwater is contaminated with carcinogenic volatile organic compounds, released by defendants’ automotive and dry cleaning facilities. The EPA designated the area as a Superfund site. Plaintiffs have access to municipal drinking water but the contaminated groundwater creates the risk of VOC vapor intrusion into buildings so that Plaintiffs may inhale carcinogenic and hazardous substances. A school was closed and demolished when vapor mitigation systems were unable to adequately contain the levels of harmful substances. After the suit was removed to federal court under the Class Action Fairness Act, 28 U.S.C. 1332(d)(2) and consolidated with related actions, Plaintiffs sought Rule 23(b)(3) liability-only class certification for five of their 11 causes of action—private nuisance, negligence, negligence per se, strict liability, and unjust enrichment. Alternatively, they requested Rule 23(c)(4) certification of seven common issues. The court determined that although the proposed classes satisfied Rule 23(a)’s prerequisites, Ohio law regarding injury-in-fact and causation meant that plaintiffs could not meet Rule 23(b)(3)’s predominance requirement and denied certification of the proposed liability-only classes. The court then employed the “broad view” and certified seven issues for class treatment. The Sixth Circuit affirmed. The certified classes satisfy requirements of predominance and superiority. Each issue may be resolved with common proof and individualized inquiries do not outweigh common questions. Class treatment of the certified issues will not resolve liability entirely, but will materially advance the litigation. View "Martin v. Behr Dayton Thermal Products, LLC" on Justia Law
Little Traverse Lake Property Owners Association v. National Park Service
In 2008, the National Park Service proposed a trailway through the Sleeping Bear Dunes National Lakeshore in Leelanau County, Michigan. One alternative route ran along Traverse Lake Road. Residents opposed sending visitors down their residential street and submitted objections during the public comment period. In 2009, the Park Service issued a revised proposal, with significant changes to the Traverse Lake Road portion of the trail. No one submitted objections. The Park Service approved the Traverse Lake Road route, making a finding of no significant impact. Six years later, the residents sued, citing the National Environmental Policy Act, 42 U.S.C. 4321. Plaintiffs sought to supplement the administrative record with pictures, maps, and other documents. The court dismissed most of their claims as forfeited because Plaintiffs failed to participate in the planning process in a manner that would alert the Park Service to their objections to the 2009 plan and held that Plaintiffs failed to show exceptional circumstances requiring supplementation of the record. The Sixth Circuit affirmed. Many of Plaintiffs’ objections during the 2008 comment period were sufficient to alert the Park Service to deficiencies in the 2008 Plan, but those comments did not preserve any challenge to the 2009 Plan. The record contains evidence addressing the issues Plaintiffs sought to prove with their supplemental material; the Park Service was not negligent in compiling the 3,005-page administrative record. View "Little Traverse Lake Property Owners Association v. National Park Service" on Justia Law
Eagle Supply & Manufacturing L.P. v. Bechtel Jacobs Co.
The Oak Ridge, Tennessee uranium-enrichment facilities for the Manhattan Project, the World War II effort to build the first atomic bomb, have been inactive since the mid-1980s. The Department of Energy has worked to clean up the hazardous waste and hired Bechtel, a global engineering and construction firm. Bechtel hired Eagle to help decontaminate the complex, which required the demolition of buildings and equipment across the 2,200-acre complex and removal of radioactive nuclear waste, followed by decontamination of the soil and groundwater to make the site safe for redevelopment. Eagle’s work proved significantly more challenging and expensive than either party anticipated. Their contract allowed Bechtel to make changes; if those changes caused Eagle’s costs to increase, Bechtel was to make equitable adjustments in price and time for performance. Eight years after completing its work, Eagle filed suit, seeking compensation for its extra work and for excess waste that Eagle removed. The district court awarded Eagle the full amount of each request, plus interest and attorney’s fees. The Sixth Circuit affirmed the award of damages and attorney’s fees, but remanded so that the court can recalculate the interest to which Eagle is entitled under the Tennessee Prompt Pay Act. View "Eagle Supply & Manufacturing L.P. v. Bechtel Jacobs Co." on Justia Law
Boler v. Earley
Flint, which previously obtained water from DWSD, decided to join the Karegnondi Water Authority (KWA). The DWSD contract terminated in 2014. Because KWA would take years to construct, Flint chose the Flint River as an interim source. A 2011 Report had determined that river water would need to be treated to meet safety regulations; the cost of treatment was less than continuing with DWSD. Genesee County also decided to switch to KWA but continued to purchase DWSD water during construction. Flint did not upgrade its treatment plants or provide additional safety measures before switching. Residents immediately complained that the water “smelled rotten, looked foul, and tasted terrible.” Tests detected coliform and E. coli bacteria; the water was linked to Legionnaire’s disease. General Motors discontinued its water service, which was corroding its parts. Eventually, the city issued a notice that the drinking water violated standards, but was safe to drink. Subsequent testing indicated high levels of lead and trihalomethane that did not exceed the Safe Drinking Water Act (SDWA) Lead and Copper Rule’s “action level.” The tests indicated that corrosion control treatment was needed to counteract lead levels. The City Council voted to reconnect with DWSD; the vote was overruled by the state-appointed Emergency Manager. The EPA warned of high lead levels; officials distributed filters. Genesee County declared a public health emergency in Flint, advising residents not to drink the water. The Emergency Manager ordered reconnection to DWSD but the supply pipes' protective coating had been damaged by River water. Flint remains in a state of emergency but residents have been billed continuously for water. The Michigan Civil Rights Commission determined that the response to the crisis was “the result of systemic racism.” The Sixth Circuit reversed dismissal, as preempted by SDWA, of cases under 42 U.S.C. 1983. SDWA has no textual preemption of section 1983 claims and SDWA’s remedial scheme does not demonstrate such an intention. The rights and protections found in the constitutional claims diverge from those provided by SDWA. The court affirmed dismissal of claims against state defendants as barred by the Eleventh Amendment. View "Boler v. Earley" on Justia Law
Wilmington Trust Co. v. AEP Generating Co.
Nearly 20 years after defendants built, sold, and leased back a Rockport Indiana coal-burning power plant, they committed, in a consent decree resolving lawsuits involving alleged Clean Air Act violations at their other power plants, to either make over a billion dollars of emission control improvements to the plant, or shut it down. The sale and leaseback arrangement was a means of financing construction. Defendants then obtained a modification to the consent decree providing that these improvements need not be made until after their lease expired, pushing their commitments to improve the air quality of the plant’s emissions to the plaintiff, the investors who had financed construction and who would own the plant after the 33-year lease term. The district court held this encumbrance did not violate the parties’ contracts governing the sale and leaseback, and that plaintiff’s breach of contract claims precluded it from maintaining an alternative cause of action for breach of the covenant of good faith and fair dealing. The Sixth Circuit reversed, holding that a Permitted Lien exception in the lease unambiguously supports the plaintiff’s position and that the defendants’ actions “materially adversely affected’ plaintiff’s interests. View "Wilmington Trust Co. v. AEP Generating Co." on Justia Law