MTBE Cleanup Costs

The Association for Environmental Health and Sciences (AEHS) issued a press release yesterday about a soon-to-be published ENSR study on the cost to cleanup all MTBE sites nationwide. "By trending the EPA confirmed release data for the past 20 years, evaluating the history of nationwide cleanup costs, and then incorporating forecasts for streamlined technologies and cleanup methods, a national total cost of MTBE remediation over the coming 30 years is predicted to be in the range of $1 to $3 billion," according to AEHS.

The Next Big Thing

One of the enduring features of the environmental law field is that there is always a “next big thing” on the horizon. When our firm’s lawyers first started in the environmental law business over twenty-five years ago, the new thing was CERCLA, which occupied a generation of environmental professionals, and as discussed in my May 12 entry, still occupies environmental lawyers today. But there is much less new about CERCLA today than there was in the 1980’s, when it took armies of lawyers to handle what we would think of today as a very small environmental problem. Once daunting problems, solved in prior cases, do not need to be solved again; the solutions are on the shelf.

Of course, there have been other new things over the years, each of which has become the work of a new class of environmental lawyers. I started in the 1980’s with toxic tort cases, in which we spent thousands of hours defending cases based on doubtful or non-existent causation claims – cases no rational plaintiffs’ lawyer would file today. And along the way there were electromagnetic field claims, which never sparked to life; asbestos, the litigation tsunami that is not considered an “environmental” issue because it is grounded in state tort law, but which has employed vast numbers of environmental lawyers over the years; MTBE cases, which changed ordinary gas tank leaks into multi-million dollar litigation; and in California, Proposition 65 cases, which are a special California blend of environmentalism and economic waste.

But what is the next big thing now? There is no obvious candidate for a transformative event that will occupy the legal profession in the years to come. Asbestos litigation will either terminate soon or gradually diminish over time, and while Aviall will occupy CERCLA lawyers for a while, it is unlikely that there will be any push towards CERCLA enforcement from the Bush administration. In California, there will be CERCLA issues associated with base closings, and plaintiffs will continually add new flavors to the menu of groundwater contamination litigation, but none of these events is substantial enough to occupy a generation of new lawyers. Will they all become intellectual property lawyers instead?

There is one event that while slow to develop will eventually dwarf all other environmental issues, if we live to see it, and that is global warming. Elizabeth Kolbert’s recent three-part piece in the New Yorker discusses among other things the markets that are even now developing for global warming products and services – for example, floatable houses in the Netherlands. While the effect on lawyers is arguably one of the most trivial effects of global warming, it will be a profound effect nonetheless. Imagine California with an 80 to 100 percent chance of drought each year, as one of the experts that Kolbert cites predicts. Kolbert’s article implies that the world will be lucky not to descend into anarchy as a result of global warming. If that dire result is to be avoided, environmental lawyers will be very busy.

Aviall Fallout

Ever since the Supreme Court's decision in Cooper Industries v. Aviall, district courts around the country have been wrestling with how to apply it. Aviall knocks out one of the pillars of CERCLA jurisprudence -- that any PRP can bring a contribution claim against any other PRP even when there has been no government action or claim under CERCLA Section 107.

It's interesting to see how the district court's are dealing with this problem. In Metropolitan Water Dist. v. Lake River Corp., 2005 WL 925680 (N.D. Ill. April 12, 2005) and Vine Street LLC v. Keeling, 2005 WL 675786 (E.D. Tex. March 24, 2005), the courts decided that CERCLA Section 107 provides authority for a PRP to sue. CERCLA Section 107 allows the government or "any other person" to recover response costs. In the Metropolitan Water District case, the court's decision adopted a broad reading of the statute, but also seemed to hinge on the fact that there was no circuit authority directly prohibiting a PRP from bringing a Section 107 claim.

In other recent decisions, however, the courts have held that Section 107 does not provide authority for a PRP to sue another PRP. See City of Waukesha v. Viacom Int’l, Inc., 2005 WL 712423 (E.D. Wisc. March 23, 2005); Elementis Chemicals Inc. v. TH Agriculture & Nutrition, LLC, 2005 WL 236488 (S.D.N.Y. Jan. 31, 2005). These decisions are based on pre-Aviall circuit precedent prohibiting PRPs from bringing Section 107 actions. That precedent may be revisited in light of Aviall, but any change will likely have to take place at the circuit court level, not in the district courts.

Beginnings

This blog will contain news on environmental law topics for lawyers and environmental law professionals.