Pre-Enforcement Review in Environmental Law: When Companies Can (and Should) Challenge EPA Interpretations
Fri Oct 17th, On Environmental Law, by Bick Law LLP
Last month, we published an article on the U.S. Supreme Court’s recent decision in the case of McLaughlin Chiropractic v. McKesson. While this wasn’t an environmental case, as we discussed in the article, it nonetheless has the potential to significantly impact environmental enforcement in some cases. This is because of its implications for pre-enforcement review of the U.S. Environmental Protection Agency’s (EPA) interpretation of certain federal environmental laws. This month, we thought we’d take a closer look at some of these laws. Here are some key insights from an experienced California environmental litigation attorney at Bick Law LLP:
Recap: Supreme Court Reinforces Litigants’ Right to Pre-Enforcement Review
To recap, in McLaughlin Chiropractic v. McKesson, the Supreme Court held that federal law “does not bind district courts in civil enforcement proceedings to an agency’s interpretation of a statute” during pre-enforcement review. Instead, when litigants challenge an agency’s interpretation of a statute prior to enforcement, district courts can (and must) apply “ordinary principles of statutory interpretation” while affording “appropriate respect to the agency’s interpretation.”
However, this only applies when a statute is subject to pre-enforcement review. Certain statutes expressly prohibit pre-enforcement judicial review—as the Supreme Court acknowledged in McLaughlin Chiropractic v. McKesson—and, in enforcement litigation involving these statutes, such prohibitions continue to govern.
Other statutes expressly authorize pre-enforcement judicial review, while others are silent on the issue. As a result of the Supreme Court’s decision in McLaughlin Chiropractic v. McKesson, EPA’s interpretation of all of these statutes is now clearly subject to pre-enforcement review going forward.
Pre-Enforcement Review of Environmental Laws After McLaughlin Chiropractic v. McKesson
With this in mind, here is a look at some key federal environmental laws and what they say (or don’t say) about pre-enforcement review:
Clean Air Act (CAA): Precludes Pre-Enforcement Review
The Clean Air Act (CAA) is an example of a federal environmental law that expressly precludes pre-enforcement review. The CAA and EPA’s regulations promulgated under the statute establish national air quality standards and govern the release of air pollutants, including carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. Alleged violations of the CAA’s air quality standards are common triggers for EPA enforcement litigation.
Clean Water Act (CWA): Precludes Pre-Enforcement Review
The Clean Water Act (CWA) also expressly precludes pre-enforcement review. Along with establishing water quality standards and regulating water contaminants, the CWA also provides the statutory authority for EPA’s National Pollutant Discharge Elimination System (NPDES) permit program. Alleged water quality violations and unlawful pollutant discharges are also common triggers for EPA enforcement litigation.
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA): Precludes Pre-Enforcement Review
The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) governs liability for environmental contamination and associated remediation costs, among other things. Similar to the CAA and CWA, CERCLA expressly precludes pre-enforcement review. Also similar to the CAA and CWA, CERCLA is a common source of EPA enforcement litigation, and current property owners, former property owners, and other parties can all face substantial liability in enforcement litigation involving environmental contamination events, alleged reporting violations, and other matters.
Endangered Species Act (ESA): Authorizes Pre-Enforcement Review
The Endangered Species Act (ESA) authorizes pre-enforcement review, although enforcement in these cases involves the US Fish and Wildlife Service. In addition, Biological Opinions (BiOps) or Biological Assessments (BAs) required under Section 7 of the ESA may be challenged and reviewed through citizen suits, with the court’s review guided by the “arbitrary and capricious” standard found in the APA, 5 U.S.C. § 706(2). The ESA protects species classified as both threatened and endangered, and companies that violate Section 9 of the ESA can face substantial liability in federal court, including civil and criminal liability as authorized by Section 11. This includes, but is not limited to, violations of the Endangered Species Protection Program (ESPP). Since the Fish and Wildlife Service’s interpretations of the Endangered Species Act are subject to pre-enforcement review, companies facing citizen suits under the ESA can leverage the pre-enforcement review process to challenge the grounds for these suits when warranted.
Toxic Substances Control Act (TSCA): Authorizes Pre-Enforcement Review
Like the Endangered Species Act, the Toxic Substances Control Act (TSCA) authorizes pre-enforcement review. The TSCA regulates hazardous substances, including (but not limited to) asbestos and lead-based paint, and it gives EPA broad authority to impose notification, reporting, recordkeeping, and other requirements. Here, too, since pre-enforcement review is available, companies facing litigation under the TSCA should work with their counsel to determine whether a challenge to EPA’s interpretation of the statute is warranted.
Leveraging Pre-Enforcement Review in Environmental Litigation
For companies that are facing EPA enforcement actions and citizen suits under these (and other) environmental laws, determining the viability of a petition for pre-enforcement review is a key first step toward building a targeted defense strategy. If a petition for pre-enforcement review is warranted, challenging EPA’s interpretation of the relevant statute can provide an opportunity to avoid liability while also mitigating the litigation costs involved.
Challenging EPA’s interpretation of federal environmental laws can also help protect companies’ interests going forward. If an EPA interpretation not only triggers enforcement action but also threatens to disrupt the company’s operations or initiatives in the future, proactively challenging the interpretation could yield long-term financial benefits.
Speak with a California Environmental Litigation Attorney at Bick Law LLP
Our firm represents companies in a broad range of industries in all types of environmental enforcement litigation. If you need more information about the pre-enforcement review process for challenging EPA’s statutory interpretations, we invite you to get in touch. Call 949-432-3500 to speak with a California environmental litigation attorney at Bick Law LLP today.