Legal Docket - Garbage juice and small refineries

MYRNA BROWN, HOST: It’s Monday morning, the start of a new work week for The World and Everything In It. Today is the 10th of May, 2021. Good morning to you, I’m Myrna Brown.

NICK EICHER, HOST: And I’m Nick Eicher.

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It’s time for Legal Docket.

On Monday the court announced Colonel Gail Curley will serve as the next marshal of the court. She’s the second woman to do so, replacing Pamela Talkin.

The marshal oversees the day-to-day operations of the court, including security. But the job may be best known for this duty:

TALKIN: The Honorable, the Chief Justice, and the Associate Justices of the Supreme Court of the United States! Oyez, Oyez, Oyez! All persons having business before the honorable, the Supreme Court of the United States are admonished to draw near and give their attention for the court is now sitting. God save the United States and this honorable court. [GAVEL]

EICHER: That’s right, the one who gives the cry at the beginning of each oral argument session as the justices enter the courtroom and take their seats. It’s a lovely 15th century expression for, “Be quiet and pay attention.”

Today, we continue our weekly coverage of oral arguments the court has heard. Mary Reichard’s away today for a graduation. So, “oyez, oyez, oyez.” Please have a seat and draw near to WORLD legal reporter Jenny Rough is here with an update on two environmental law disputes. Hey Jenny.

JENNY ROUGH, REPORTER: Hiya, Nick. Well, the first case involves a toxic waste landfill in Guam. And they call it “garbage juice,” and it began leaching into a nearby river.

The cost to clean up the mess: $160 million. And the legal question in this lawsuit: Who has to foot the bill?

Guam is an island in the Pacific Ocean, closer to North Korea than to California. Pretty isolated. The island is 30 miles long and only 4 miles wide in the middle, so some say it’s shaped like a footprint.

EICHER: For decades, the U.S. Navy governed Guam. In the 1940s, during its control, the Navy created the Ordot Dump to dispose of military waste: things like agent orange and other hazardous materials.

In 1950, Guam became an unincorporated U.S. territory, and the Navy relinquished sovereignty to Guam’s newly formed civilian government. It was Guam that now owned the dump, and local residents disposed of waste there. But the Navy also continued to use it through the Korean and Vietnam wars.

ROUGH: All the way up to the year 2002 now. The E-P-A—Environmental Protection Agency—sued Guam under the Clean Water Act for the unlawful discharge of pollutants to the river that flowed to the Pacific Ocean. The parties reached a settlement in 2004.

Guam closed the dump. Covered it up and began remediation to minimize the leaching chemicals. Cleanup is still ongoing. Guam expressly disclaimed liability in the 2004 settlement.

EICHER: With the EPA lawsuit over and done with, the next lawsuit began. This time, the government of Guam initiated. Guam sued the United States government under a federal law known as CERCLA. That stands for the Comprehensive Environmental Response, Compensation and Liability Act. It aims to clean up hazardous waste sites like the landfill here.

CERCLA is a huge statute with many moving pieces. Pro-business, pro-environment—no matter what side, most everyone agrees it’s a poorly drafted law. It’s led to all sorts of litigation. Courts have been tied up in knots for years over what its terms mean.

ROUGH: There are two main ways to get money under CERCLA. One way is by the cost recovery provision. You do the work of cleaning up a hazardous site, and you cover all the costs. Then you turn around and sue other potentially responsible parties to get some money back.

The second way is under the contribution provision. This usually happens when the government comes after you first. You settle with the government. And then you turn around and seek a contribution for the costs—again from other potentially responsible parties.

EICHER: And the two provisions are mutually exclusive. If you have a contribution claim, you cannot bring a cost recovery claim.

ROUGH: Guam wants the U.S. to pay its fair share of remediation costs to fix the landfill. Guam sued for cost recovery. But the United States said that’s the wrong complaint.

Lawyer for Guam, Gregory Garre, laid it out.

GARRE: We're bringing a cost recovery claim under CERCLA. The government's position is that we were required to bring a contribution claim in the wake of the Clean Water Act settlement.

But the contribution provision has a three-year statute of limitations, which has already passed for Guam.

Remember the previous Clean Water Act lawsuit that Guam settled. The United States argues that that settlement triggered the contribution section of CERCLA. Indeed, the language of that provision says if you resolved liability to the United States for a response action, you can seek a contribution from potentially responsible parties.

But Garre says applying that here makes no sense. The EPA settlement involved a dispute under the Clean Water Act. It had nothing to do with CERCLA.

GARRE: Read in context, the phrase "resolved its liability" naturally refers to CERCLA liability.

Garre went on to argue that the surrounding provisions in the CERCLA Act do specify CERCLA liability. No reason this provision would suddenly have a different meaning.

GARRE: The key term is "resolved its liability." Is it CERCLA liability, or is it liability under any other law? Of course, it's CERCLA liability.

On the other side, representing the United States, Vivek Suri.

SURI: If Congress wanted to limit this provision to CERCLA liability, it could easily have said so. There are many other provisions of the Act that use terms such as "settlement under this Act," "liability under this Act," or "response action under this Act." There's no such limiting language in the provision at issue here.

The fact that Congress did not include it must be an intentional elimination, he argued.

Justice Stephen Breyer pointed out the language of the provision results in good arguments on both sides. Here he is speaking to United States lawyer Suri.

BREYER: Well, the trouble I'm having on your side is I can't get too far using the language of the statute. I mean, sure, you could read it your way, "response action" refers to any action, state or federal, brought under any statute.

Like the Clean Water Act.

BREYER: It could mean that, but it could also mean CERCLA actions, okay? It could mean either.

Another technicality: Even if a non-CERCLA settlement is sufficient, was liability actually resolved in that previous settlement? Guam’s position: No. Because we expressly disclaimed liability. Therefore, the contribution provision doesn’t apply and we can proceed with our cost recovery claim.

SOTOMAYOR: Settlement agreements often can disclaim liability but resolve liability at the same time. Many settlement agreements will say, I don't admit liability, but I will resolve my liability under your claims under the Clean Water Act.

Justice Sotomayor had this observation for the U.S. government lawyer: The Clean Water Act and CERCLA are focused on different harms.

SOTOMAYOR: I thought that the harm addressed in the Clean Water Act was releasing pollutants without a permit. That's a very different harm than what CERCLA looks to, which is releasing hazardous pollutants, with or without a permit, you're still prohibited from doing that. So those—aren't those two different harms, and why should one extinguish or create an obligation to claim under another?

Justice Samuel Alito hinted at concerns of fairness.

ALITO: Counsel, Guam's argument in very simple terms is basically this: We're a small island, and while we may have contributed to part of the problem with this dump, the Navy contributed quite a bit too.

Bottom line: Circuits are split on whether a non-CERCLA settlement triggers CERCLA’s contribution provision. If it does, Guam might be time-barred from moving forward with its lawsuit due to the three-year statute of limitations.

If not, it’s off to the races. Other lawsuits will likely follow. A battle over ownership and control of the dump. And more battles over what each party’s allocated share is.

The second case involves air pollution and the oil and gas industry. The petitioners in this suit are HollyFrontier and its subsidiaries. Small refineries. The last stop in the supply chain—the companies who get gas to consumers. Small refineries play an especially important role in getting gas to remote areas, like rural Wyoming.

In 2005, Congress enacted a program that requires companies selling transportation fuel to blend in renewable fuel, like corn-sourced ethanol. But it’s expensive to do so. So the statute allows small refineries to obtain an exemption for economic hardship.

And an extension of that exemption.

The question here: What does the word “extension” mean? Can the small refineries obtain an extension at any time? Or must the refinery obtain an initial exemption and then a continuous extension every year thereafter? In other words: Once the chain is broken, are they barred from getting an extension, despite economic hardship?

Hollyfrontier and its subsidiaries qualified for the initial exemption. In the years that followed, it met its fuel obligations—sometimes. And other years it obtained an extension by claiming economic hardship.

Oral arguments focused on that word “extension.” Here’s Justice Elena Kagan questioning Hollyfrontier’s lawyer Peter Keisler about it.

KAGAN: In thinking about the ordinary meaning of this word, "extension," I guess I'm—I'm wondering if you would comment on—on this hypothetical. Suppose that I rented an apartment five years ago and I rented it for a year, and then I decided to give it up, and five years later I'm now really tired of where I'm living now and I want to move back, and I call the landlord and say: I'd like an extension of my lease. What would the landlord say?

KEISLER: I think the landlord would scratch her head and think that's a very strange context in which to be using the word "extension." I agree with that.

But, he went on to argue, this particular statute says the extension can be granted “at any time.”

The amici briefs on each side lay out the economic stakes: A broad reading of “extension of the exemption” could put small farmers out of business. A narrow reading could do the same to small refineries.

What about the stakes of clean air and whether such renewable fuels really are clean? Wasn’t in the mix!

Don’t expect the Supreme Court to generate a useful statement of jurisprudence in either of these cases. Both involve plain, old run-of-the mill statutory interpretations. Poor drafting by Congress that leaves the Supreme Court with the task of mopping up the mess.

And that’s it for this week’s Legal Docket.

I’m Jenny Rough.

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