EPA finally promises MACT regulations for emissions of hazardous pollutants from power plants
EPA has finally agreed to draft a regulation asked for by Congress 19 years ago, delineating "maximum available control technology" (MACT) that must be used on power plants (technically, electrical generating units or EGUs) to control emissions of mercury and 66 other hazardous air pollutants (HAPs). The list of HAPs includes such delightful substances as asbestos, benzene, and formaldehyde, see CAA § 112(b), codified at 42 USC § 7412(b). These have been emitted from power plants unchecked for years, despite Congress' specific request in the Clean Air Act Amendments of 1990 that EPA study the HAPs emitted by EGUs and regulate them "if the Administrator finds such regulation is appropriate and necessary." CAA § 112(n)(1)(A).
It took eight years for the EPA to complete the asked-for study, and until the waning moments of the Clinton administration for it to designate EGUs as a source category subject to CAA § 112's MACT requirements. Fed. Reg. 79,825 (Dec. 20, 2000). The Bush administration did their best to undo this, delisting EGUs as a source category covered by § 112, and replacing the regulation that should have followed from the listing with the artfully named "Clean Air Mercury Rule" (CAMR). The DC Circuit consigned CAMR to the scrap heap on February 8th, 2008, see New Jersey v. EPA, 937 F.2d 649 (2008), and undid the illegal delisting, reinstating the status quo ante.
This meant that, as of that date, EPA was over five years late in issuing regulations detailing what MACT is for EGUs. (Section 112 required implementing regs to be issued by December 2002, two years after the source category was listed). The Bush Administration continued to drag its heels, and a large consortium of clean air litigators, including the Clean Air Task Force, NRDC, EarthJustice, and the Southern Environmental Law Center, filed suit to prompt it to issue regulations in December 2008. (Meanwhile, these same litigators, fighting coal plants being planned across the country under the permissive Bush-Cheney regulatory regime, filed suit to force their regulation using the provisional case-by-case MACT requirement of § 112(j) (the so-called "MACT hammer.")).
Today's announcement is the final denouement of that fight. (At least one hopes it is final.) EPA has now promised that it will issue those regulations by November 2011, in a settlement filed with the US District Court for the District of Columbia.
Reading this history, you should get a feel for the uphill battle it will be to impose strict, effective GHG emissions limitations on power plants under any pending climate change bill.
Reactions to the settlement can be found from NRDC here, Sierra Club here, and EarthJustice (including quotes from the CATF and others) here.
Friday, October 23, 2009
No Analysis from EPA of Kerry Climate Change Bill Yet
As of 5:10 eastern time, the EPA has not yet released its expected analysis of Senator Kerry's Clean Energy, Jobs & American Power Act. Either it has been delayed until next week, or someone at EPA is staying past five on a Friday. Stay tuned.
Embedded Federal Question Jurisdiction Found in Lobster Case
And Judge Selya's signature flair shows up on an opinion he didn't even author
Today, a panel of the US Court of Appeals for the First Circuit held, in Rhode Island Fisherman's Alliance v. Rhode Island Department of Environmental Management (DEM), that DEM regulations implementing the Atlantic Coastal Fisheries Cooperative Management Act, codified at 16 U.S.C. §§ 5101-5108, were proper despite their retroactive nature. The challenged regulations allocated lobster traps lobsterman in a certain area off the Rhode Island coast based on whether they had had a license to sink traps in that area in 2001-2003.
A preliminary question was whether the case had properly been removed to federal district court under federal question jurisdiction. Plaintiffs, a group of Rhode Island lobstermen, brought suit in state court. Defendants removed the case to federal court, and won summary judgment on the issue of federal question jurisdiction.
Plaintiffs' pleading mentioned only state law on its face. But their argument that DEM lacked the authority to issue retroactive regulations depended, the First Circuit panel explained, on the notion that the regulations were not "expressly required by federal law, regulation or court decision," which would have made their retroactivity kosher under the relevant Rhode Island law.
The panel ruled that a hypothetical "well pleaded" version of their complaint would therefore have included a federal question, because "it is not logically possible for the plaintiffs to prevail on this cause of action without affirmatively answering the embedded question of whether federal law, in the form of a fishery management plan promulgated under the [Atlantic States Marine Fisheries] Compact, 'expressly required' the use of retroactive control dates." The panel further held that the question involved--whether the regulation was required by federal law--was "actually disputed and substantial," and that ruling on this question would not "disturb[] any congressionally approved balance of federal and state judicial responsibilities." Thus, it met all three requirements of Grable & Sons Metal Products v. Darue Engineering and Manufacturing, 545 U.S. 308, 314 (2005).
The panel dispatched with the merits of the case quickly, affirming that various state law challenges to the regulations failed largely for the reasons set forth by the district court below.
In the end, the lobsters off the Rhode Island coast have a little more protection, and anyone who made it through the case (or this precis) has had a small Wright & Miller refresher. (And this writer, compliments of a panel that included Judge Selya, has learned the words "encincture," "exigible," "superrogatory," and "asseverational.")
The full text of the opinion can be found here. There is, as of yet, no news coverage of the opinion.
Today, a panel of the US Court of Appeals for the First Circuit held, in Rhode Island Fisherman's Alliance v. Rhode Island Department of Environmental Management (DEM), that DEM regulations implementing the Atlantic Coastal Fisheries Cooperative Management Act, codified at 16 U.S.C. §§ 5101-5108, were proper despite their retroactive nature. The challenged regulations allocated lobster traps lobsterman in a certain area off the Rhode Island coast based on whether they had had a license to sink traps in that area in 2001-2003.
A preliminary question was whether the case had properly been removed to federal district court under federal question jurisdiction. Plaintiffs, a group of Rhode Island lobstermen, brought suit in state court. Defendants removed the case to federal court, and won summary judgment on the issue of federal question jurisdiction.
Plaintiffs' pleading mentioned only state law on its face. But their argument that DEM lacked the authority to issue retroactive regulations depended, the First Circuit panel explained, on the notion that the regulations were not "expressly required by federal law, regulation or court decision," which would have made their retroactivity kosher under the relevant Rhode Island law.
The panel ruled that a hypothetical "well pleaded" version of their complaint would therefore have included a federal question, because "it is not logically possible for the plaintiffs to prevail on this cause of action without affirmatively answering the embedded question of whether federal law, in the form of a fishery management plan promulgated under the [Atlantic States Marine Fisheries] Compact, 'expressly required' the use of retroactive control dates." The panel further held that the question involved--whether the regulation was required by federal law--was "actually disputed and substantial," and that ruling on this question would not "disturb[] any congressionally approved balance of federal and state judicial responsibilities." Thus, it met all three requirements of Grable & Sons Metal Products v. Darue Engineering and Manufacturing, 545 U.S. 308, 314 (2005).
The panel dispatched with the merits of the case quickly, affirming that various state law challenges to the regulations failed largely for the reasons set forth by the district court below.
In the end, the lobsters off the Rhode Island coast have a little more protection, and anyone who made it through the case (or this precis) has had a small Wright & Miller refresher. (And this writer, compliments of a panel that included Judge Selya, has learned the words "encincture," "exigible," "superrogatory," and "asseverational.")
The full text of the opinion can be found here. There is, as of yet, no news coverage of the opinion.
Obama asks MIT and Nation to Join in "Difficult Fight" in Months Ahead
President Obama's speech, which ended at 1:05 eastern time, was a rallying cry on clean energy innovation, and sounded the opening bell for the fight in the Senate to get the counterpart to the Waxman-Markey climate bill passed.
After talking about the marvelous innovations he had seen on the energy front at MIT--the finest institution in "this part of Cambridge," the Harvard alumni allowed--President Obama declared that "The nation that leads in clean energy innovation will be the nation that leads the world’s economy. And I want the U.S. to be that nation."
Trying to be as inclusive as possible, the President noted that the Pentagon, veterans, and leaders in the business community are looking to protect the environment, our security and the economy by combatting climate change and transforming the energy sector.
Giving a hand to Senators from fossil-fuel dependent states, who will be critical to the passage of any bill, the President envisioned a transition to a "clean energy future" that included "[f]iguring out how we are going to use the fossil fuels that we inevitably are going to be using for the next several decades" as cleanly as possible, and making use of nuclear power, sustainably grown biofuels, as well as "energy harvested from the wind, waves and sun." And the President praised Senator Graham, Kerry, and Bingaman for their work so far on a Senate climate change bill.
Noting the uphill battle ahead, the President warned that "it is important to understand that the closer we get, the harder the opposition will fight," including "people who want to defeat or delay the change that is necessary," and asked the audience to "join us in what is sure to be a difficult fight in the months and years ahead."
Update: A transcript of the speech is now available here, and reactions from the New York Times here, the Washington Post here, the LA Times here, and the Chicago Tribune here.
After talking about the marvelous innovations he had seen on the energy front at MIT--the finest institution in "this part of Cambridge," the Harvard alumni allowed--President Obama declared that "The nation that leads in clean energy innovation will be the nation that leads the world’s economy. And I want the U.S. to be that nation."
Trying to be as inclusive as possible, the President noted that the Pentagon, veterans, and leaders in the business community are looking to protect the environment, our security and the economy by combatting climate change and transforming the energy sector.
Giving a hand to Senators from fossil-fuel dependent states, who will be critical to the passage of any bill, the President envisioned a transition to a "clean energy future" that included "[f]iguring out how we are going to use the fossil fuels that we inevitably are going to be using for the next several decades" as cleanly as possible, and making use of nuclear power, sustainably grown biofuels, as well as "energy harvested from the wind, waves and sun." And the President praised Senator Graham, Kerry, and Bingaman for their work so far on a Senate climate change bill.
Noting the uphill battle ahead, the President warned that "it is important to understand that the closer we get, the harder the opposition will fight," including "people who want to defeat or delay the change that is necessary," and asked the audience to "join us in what is sure to be a difficult fight in the months and years ahead."
Update: A transcript of the speech is now available here, and reactions from the New York Times here, the Washington Post here, the LA Times here, and the Chicago Tribune here.
Obama to Kick off Senate Climate Efforts Today
Presidential remarks will coincide with release of EPA analysis of Kerry-Boxer climate bill
President Obama will be delivering a speech on clean energy at MIT today, noon eastern time. The speech will be webcast here. The speech is expected to boost Senate efforts on a climate bill, just before scheduled hearings before Senator Boxer's Environment and Public Works Committee next week. (The full schedule for the hearings, set for Tuesday through Thursday, can be viewed here, here and here.)
Also expected today: The EPA will be releasing an economic of the Senators Kerry and Boxer's bill, the "Clean Energy Jobs and American Power Act," which can be viewed here.
President Obama will be delivering a speech on clean energy at MIT today, noon eastern time. The speech will be webcast here. The speech is expected to boost Senate efforts on a climate bill, just before scheduled hearings before Senator Boxer's Environment and Public Works Committee next week. (The full schedule for the hearings, set for Tuesday through Thursday, can be viewed here, here and here.)
Also expected today: The EPA will be releasing an economic of the Senators Kerry and Boxer's bill, the "Clean Energy Jobs and American Power Act," which can be viewed here.
Thursday, October 22, 2009
Faster than Melting Ice ...
Apparently catching wind that the Department of Interior was about to announce a proposed habitat designation for polar bears in the Alaskan Arctic, (see prior blog post here), Alaska rushed into federal court earlier this week and supplemented its earlier suit to overturn the original listing that prompted the designation. Alaska filed papers (to supplement a suit originally brought by former Governor Palin in August 2008) in federal district court in Washington state on Tuesday, and announced that it had done so during a gubernatorial press conference yesterday. At the press conference Governor Parnell warned that habitat designation would in essence shut down resource extraction along Alaska's northern coast, and vowed not to let that happen.
Fish and Wildlife Finally Proposes Critical Polar Bear Habitat
But warns that this will not be a backdoor for global warming regulation
In advance of an expected flurry of Senate, EPA and White House activity on a climate change bill tomorrow, the US Fish and Wildlife Service announced today a proposed designation of over 200,000 acres of "critical habitat" in the Arctic for polar bears, which were listed as threatened under the Endangered Species Act (ESA) almost a year and a half ago. The proposed habitat includes part of the Arctic National Wildlife Refuge (ANWR).
Environmentalists had campaigned since 2005 to bring the polar bear under the protection of the ESA. They did this not just for the sake of the species, but also to spur government action to regulate emissions of GHGs contributing to climate change while the Bush Administration and a Republican Congress sat on their hands. The Bush Interior Department finally relented on the listing on May 14, 2008, see 73 Fed Reg 28,212, but did not designate critical habitat at the same time, as required by the Act. Environmentalists promptly sued, and today's proposed designation settles that suit. In a teleconference this afternoon, according to this article in the New York Times, Thomas Strickland, Assistant Interior Secretary for Fish Wildlife and Parks cautioned that “[t]he Endangered Species Act is not the appropriate tool to directly address the carbon emissions that are root cause of climate change.” In other words, we should not expect further Interior regulations curbing GHG emissions to avoid a "take" of the new critical habitat any time soon.
The proposed rule is available here, and maps of the habitat here. Environmentalists reactions to today's proposed designation, which urge that the government must now act to prevent further degradation of that habitat by curbing drilling and restricting emissions of GHGs, are available here, here, and here.
In advance of an expected flurry of Senate, EPA and White House activity on a climate change bill tomorrow, the US Fish and Wildlife Service announced today a proposed designation of over 200,000 acres of "critical habitat" in the Arctic for polar bears, which were listed as threatened under the Endangered Species Act (ESA) almost a year and a half ago. The proposed habitat includes part of the Arctic National Wildlife Refuge (ANWR).
Environmentalists had campaigned since 2005 to bring the polar bear under the protection of the ESA. They did this not just for the sake of the species, but also to spur government action to regulate emissions of GHGs contributing to climate change while the Bush Administration and a Republican Congress sat on their hands. The Bush Interior Department finally relented on the listing on May 14, 2008, see 73 Fed Reg 28,212, but did not designate critical habitat at the same time, as required by the Act. Environmentalists promptly sued, and today's proposed designation settles that suit. In a teleconference this afternoon, according to this article in the New York Times, Thomas Strickland, Assistant Interior Secretary for Fish Wildlife and Parks cautioned that “[t]he Endangered Species Act is not the appropriate tool to directly address the carbon emissions that are root cause of climate change.” In other words, we should not expect further Interior regulations curbing GHG emissions to avoid a "take" of the new critical habitat any time soon.
The proposed rule is available here, and maps of the habitat here. Environmentalists reactions to today's proposed designation, which urge that the government must now act to prevent further degradation of that habitat by curbing drilling and restricting emissions of GHGs, are available here, here, and here.
Wednesday, October 21, 2009
EPA Holds the Line on BACT and CO2
Agency makes clear that it does not view CAA BACT provisions as applicable to GHGs
On Monday, the EPA's Environmental Appeals Board (EAB) issued an order to the Indiana Department of Environmental Management to reconsider a permit it granted for BP to expand its Whiting (Indiana) refining facility to refine oil shale. NRDC, Sierra Club, the Environmental Law & Policy Institute and others filed a petition in August 2008 for the federal EPA to reconsider IDEM's decision to grant the permit. In the petition, environmentalists alleged that IDEM had let BP get away with incomplete calculations of its emissions, and that it had failed to regulate carbon dioxide (CO2). CO2, petitioners urged, should be subject to the CAA's best-available-control-technology (BACT) requirements, CAA § 165(a), following the Supreme Court's 2007 Massachusetts v. EPA decision.
In its ruling, EAB threw petitioners a bone by conceding that the emissions calculations were incomplete, and remanding the permit for reevaluation of the aspects that incompleteness affected. (This allowed environmentalists to claim victory.) But it stonewalled on the critical CO2 point.
Petitioners urged that the BACT requirements applied to CO2 under Mass v. EPA, in which the Court held that CO2 was a "pollutant" under the CAA. This, they said, means that CO2 is a pollutant that is "subject to regulation" under the CAA and therefore subject to the BACT requirements. (See CAA § 165(a) (requiring BACT be installed preconstruction for all pollutants "subject to regulation under this chapter.")
Rather than concede that CO2 was "subject to regulation," something that Lisa Jackson's EPA has been flirting with but avoiding, the EAB held that "at this time EPA continues to construe" BACT to cover only those pollutants "subject to either a provision in the Clean Air Act or a regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant." The phrasing opens the door to the possibility that EPA may change its interpretation in the future--important to keeping the pressure on Congress to pass GHG-specific legislation--but maintains the status quo for now.
On Monday, the EPA's Environmental Appeals Board (EAB) issued an order to the Indiana Department of Environmental Management to reconsider a permit it granted for BP to expand its Whiting (Indiana) refining facility to refine oil shale. NRDC, Sierra Club, the Environmental Law & Policy Institute and others filed a petition in August 2008 for the federal EPA to reconsider IDEM's decision to grant the permit. In the petition, environmentalists alleged that IDEM had let BP get away with incomplete calculations of its emissions, and that it had failed to regulate carbon dioxide (CO2). CO2, petitioners urged, should be subject to the CAA's best-available-control-technology (BACT) requirements, CAA § 165(a), following the Supreme Court's 2007 Massachusetts v. EPA decision.
In its ruling, EAB threw petitioners a bone by conceding that the emissions calculations were incomplete, and remanding the permit for reevaluation of the aspects that incompleteness affected. (This allowed environmentalists to claim victory.) But it stonewalled on the critical CO2 point.
Petitioners urged that the BACT requirements applied to CO2 under Mass v. EPA, in which the Court held that CO2 was a "pollutant" under the CAA. This, they said, means that CO2 is a pollutant that is "subject to regulation" under the CAA and therefore subject to the BACT requirements. (See CAA § 165(a) (requiring BACT be installed preconstruction for all pollutants "subject to regulation under this chapter.")
Rather than concede that CO2 was "subject to regulation," something that Lisa Jackson's EPA has been flirting with but avoiding, the EAB held that "at this time EPA continues to construe" BACT to cover only those pollutants "subject to either a provision in the Clean Air Act or a regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant." The phrasing opens the door to the possibility that EPA may change its interpretation in the future--important to keeping the pressure on Congress to pass GHG-specific legislation--but maintains the status quo for now.
Interior Department Launches Investigation
On Monday, the Secretary of the Interior formally requested that the Department's Inspector General investigate addenda to existing oil-shale leases made on January 15, 2009--five days before former President Bush left office--lowering the royalty rate the U.S. receives to just 5%. (This compares to, e.g., 16% royalty rates for oil production in the Gulf of Mexico.) Secretary Salazar's letter is here, and NRDC's take on the investigation here.
This is just one among many examples of the Bush Administration giving away the store while in office, but also an example of the sort of thing lurking in the regulatory record that DOJ lawyers will be defending, and EPA and Interior officials amending, for some time.
Energy Efficiency Rankings
While not strictly a legal development, it is worth noting that the American Council for an Energy Efficient Economy (ACEEE) has released a new ranking of U.S. states' energy efficiency efforts. Once again, California, which has long been making strides in cutting per-capita energy use, is ranked number one. The top states are clustered in the Northeast, West Coast, and Upper Midwest.
Utilities in states that lag in the rankings--the Southeast, plus much of the Eighth and Tenth Circuits (i.e. those states cutting from the Southeast up to the north and west across the middle of the country, with the striking exception of Colorado) cite different "structural" conditions in their states, including weather conditions and energy prices, as reasons for why they lag behind in cutting their energy use and thereby greenhouse gas emissions. But as a former client, John Wilson of the Southern Alliance for Clean Energy, has found, legal and regulatory regimes are the most important predictor for energy efficiency rates. So ACEEE's rankings roughly reflect the progress that each state has made in making its legal requirements and regulatory environment friendly to progress energy efficiency.
This shows the importance of an energy efficiency resource standard at the federal level--without it, the U.S. will only achieve a portion of the greenhouse gas reductions it could from the electricity sector. Unfortunately, Representative Markey's proposed national EE standards survived in the final Waxman-Markey Bill that passed the House last spring only in a watered-down form. There is little hope that the Senate will add an EE standard, if and when it produces its own version of a climate bill.
Tuesday, October 20, 2009
Green Light for Global Warming Suit
Fifth Circuit makes surprise move and allows state law suit over fossil fuels' contribution to global warming
In Comer v. Murphy Oil USA, handed down last Friday, the Fifth Circuit gave the green light to (most of) an anti-global warming suit brought by property owners on the Mississippi gulf coast under Mississipi common law theories of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. That this cause was allowed to proceed is of huge significance to the environmental community, which has been restrained from using public nuisance law for much of the past 35 years by the presence of comprehensive federal environmental legislation. It is the second case in which a public nuisance claim over global warming has been allowed to proceed after the Second Circuit issued Connecticut v. AEP just under a month ago, and the first with private plaintiffs employing state law. And it stands in contrast to a Northern District of California ruling from last month dismissing a similar global warming claim by Alaskan villagers.
In Comer v. Murphy Oil USA, handed down last Friday, the Fifth Circuit gave the green light to (most of) an anti-global warming suit brought by property owners on the Mississippi gulf coast under Mississipi common law theories of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. That this cause was allowed to proceed is of huge significance to the environmental community, which has been restrained from using public nuisance law for much of the past 35 years by the presence of comprehensive federal environmental legislation. It is the second case in which a public nuisance claim over global warming has been allowed to proceed after the Second Circuit issued Connecticut v. AEP just under a month ago, and the first with private plaintiffs employing state law. And it stands in contrast to a Northern District of California ruling from last month dismissing a similar global warming claim by Alaskan villagers.
Plaintiffs argued, in essence, that defendant's use of petrochemicals, chemicals and fossil fuels in their US operations contributed to global warming, which in turn spawned Hurricane Katrina which harmed plaintiffs' coastal property. Defendants moved to dismiss for lack of standing, arguing that the theory of harm was too attenuated, and that the case presented a non-justiciable political question. (They did not argue preemption, perhaps because that would have required arguing that the Clean Air Act governs global warming).
They were granted dismissal below, and plaintiffs appealed more than two years ago. Last Friday, the Fifth Circuit panel, consisting of Judges Davis, Stewart and Dennis, rejected the defendant's standing argument with respect to the public and private nuisance, trespass, and negligence claims under Massachusetts v. EPA. They noted that in that case, the Supreme Court granted standing to a group of coastal land-owners alleging harm from global warming, and that the instant plaintiffs presented an identical theory of standing. The panel also rejected the political-question defense to the same claims, telling the defense, basically, that they had mistaken a doctrine under which the courts decline to intrude on other federal branches for one that operated to dismiss "politically charged" cases.
The panel did, however, dismiss the balance of the claims--enrichment, fraudulent misrepresentation, and civil conspiracy--for federal prudential standing reasons. In bringing those claims, the panel noted, "the plaintiffs are essentially alleging a massive fraud on the political system resulting in the failure of environmental regulators to impose proper costs on the defendants." Slip Op. at 17. This, they said, was too generalized to get them into court.
Nonetheless, the result is that one of the most conservative appeals courts in the country has allowed a global warming suit to proceed on state law theories of nuisance, trespass, and negligence. (Or, as an obviously disappointed private attorney in Chicago put it, "Fifth Circuit More Activist Than San-Francisco-Based Court.") This should embolden other plaintiffs, and because it does so, only raises the stakes below. I would bet that there will be plenty of industry lawyers observing as the case proceeds.
Nice try, but...
Second Circuit rules that first responder is not a PRP under CERCLA
The claim--which shows off plaintiff's counsel's issue-spotting skills--was that the fire department became an "operator" under CERCLA § 101(20)(A)(ii) for the purposes of section 107 liability, under the Supreme Court's broad definition of that term from United States v. Best Foods, 524 U.S. 51, 66 (1998) (“someone who directs the workings of, manages, or conducts the affairs of a facility”). The Supremes went broad in an attempt to flesh out a not-very-helpful statutory definition (i.e. "any person owning or operating such a facility," 42 U.S.C. 9601(20(A)(ii)), and did include, as an example, "a saboteur who sneaks into the facility at night to discharge its poisons out of malice." 524 U.S. at 65. But the bit that plaintiff's counsel overlooked was that the Supremes also specified that, to be an "operator," a party must exercise control over the hazardous materials at issue. Id. at 66-67 ("an operator must manage, direct, or conduct operations specifically related to pollution, that is operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations."). The Second Circuit panel noted that although "defendants controlled firefighting operations at the AMW site, the hazardous materials at issue were stored in a burning building to which firefighters could not gain safe entry." (Slip op. at 11).
For good measure, the panel went on to rule that CERCLA § 107(d)(2)'s exemption for state or local government first responders insulated the fire department from liability except in the case of gross negligence in their response. The plaintiffs had challenged the applicability of the first-responder exemption, arguing that it applied only to CERCLA § 113 contribution actions, but not the CERCLA § 107 cost-recovery provision, but the Second Circuit rejected this as baseless and nonsensical. (Slip op. at 16).
So there you have it folks. Next time you are storing a lot of nasty chemicals that catch fire, don't think you can get out of the cleanup just because the fire department shows up to prevent a greater catastrophe.
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