by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

Normally, DIRT reports on only a few environmental cases, since they tend to be very fact specific and the ramifications are best analyzed by specialists. But, just for a change, here are four assorted reports from the Quarterly Report now being printed. They are so varied that we might say that there is "something for everyone."

CLEAN WATER; PREEMPTION; PRIMARY JURISDICTION: The First Circuit, invoking the doctrine of primary jurisdiction, held that the Environmental Protection Agency (EPA) should address the question in the first instance of whether ferric ferrocyanide is a "hazardous substance" under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), where neither CERCLA nor the existing EPA regulations clearly establish the answer. Mass. v. Blackstone Valley Elec. Co., 67 F.3d 981 (1st Cir. 1995).

While the EPA argued amicus curiae that certain EPA regulations establishing a testing protocol for the analysis of cyanide in effluent discharges under the Clean Water Act provide the legal definition of "cyanides", and that ferric ferrocyanide falls within the definition, the Court found that the EPA's position was not entitled to deference because such regulations both have nothing to do with providing a definition of any pollutants and contradict other EPA materials. The Court concluded that the question of fact should be referred to the EPA for an appropriate administrative determination.

IMPACT STATEMENTS: The Montana Supreme Court held that a renewal of a grazing permit on public land triggered Montana's environmental protection statute ("MEPA", patterned after the EPA) when the agency renewing the permit knew that the licensor's switch from cattle to sheep grazing could have adverse affects on local populations of bighorn sheep, and therefore required the preparation of an environmental impact statement ("EIS"). Ravalli County Fish and Game Ass'n, Inc. v. Montana Dep't of State Lands, 903 P.2d 1362 (Mont. 1995).

The case arose from a public controversy over a change in the use of the affected trust land from cattle to sheep grazing in a mountain area where bighorn sheep had been reintroduced. Unlike cattle grazing, domestic sheep threaten bighorns through the potential spread of pneumonia and other diseases. Under threat of suit, the state agency in charge of renewing the permit issued an environmental assessment, in lieu of an EIS, and approved the permit's renewal. A group of wildlife and sportsmen's groups brought suit and appealed from the entry of summary judgment against them.

In a divided decision, the Montana Supreme Court conceded that if a license or permit renewal merely maintains the status quo, it amounts to a ministerial act requiring no environmental analysis. But it held that when a change in the use or condition of land significantly affects the quality of the human environment, the renewal of the permit constitutes significant state action triggering MEPA's review requirements. In this case, the Montana Supreme Court concluded that the plaintiffs raised sufficiently substantial questions about whether the licensee's switch to sheep grazing threatened wild populations of bighorn sheep, whose presence added to the "ecological, aesthetic and economic values" to areas adjacent to the bighorn ranges. It further found that the state agency involved failed to sufficiently explain its decision to renew the permit, and to sufficiently conduct a "significant impacts" analysis. As a result, the court concluded that the agency's actions were arbitrary and capricious.

IMPACT STATEMENTS: The Montana Supreme Court held that a renewal of a grazing permit on public land triggered Montana's environmental protection statute ("MEPA", patterned after the EPA) when the agency renewing the permit knew that the licensor's switch from cattle to sheep grazing could have adverse affects on local populations of bighorn sheep, and therefore required the preparation of an environmental impact statement ("EIS"). Ravalli County Fish and Game Ass'n, Inc. v. Montana Dep't of State Lands, 903 P.2d 1362 (Mont. 1995).

The case arose from a public controversy over a change in the use of the affected trust land from cattle to sheep grazing in a mountain area where bighorn sheep had been reintroduced. Unlike cattle grazing, domestic sheep threaten bighorns through the potential spread of pneumonia and other diseases. Under threat of suit, the state agency in charge of renewing the permit issued an environmental assessment, in lieu of an EIS, and approved the permit's renewal. A group of wildlife and sportsmen's groups brought suit and appealed from the entry of summary judgment against them.

In a divided decision, the Montana Supreme Court conceded that if a license or permit renewal merely maintains the status quo, it amounts to a ministerial act requiring no environmental analysis. But it held that when a change in the use or condition of land significantly affects the quality of the human environment, the renewal of the permit constitutes significant state action triggering MEPA's review requirements. In this case, the Montana Supreme Court concluded that the plaintiffs raised sufficiently substantial questions about whether the licensee's switch to sheep grazing threatened wild populations of bighorn sheep, whose presence added to the "ecological, aesthetic and economic values" to areas adjacent to the bighorn ranges. It further found that the state agency involved failed to sufficiently explain its decision to renew the permit, and to sufficiently conduct a "significant impacts" analysis. As a result, the court concluded that the agency's actions were arbitrary and capricious.

INSURANCE: Although pollution exclusion clause in Town's insurance policy precludes coverage for potential liability arising from Town's alleged illegal dumping, such clause does not preclude coverage for insured Town's alleged conduct in permitting others to illegally dump on citizens' property within the Town. Town of Harrison v. National Union Fire Insurance Company, 631 N.Y.S.2d 420 (App. Div. 1995)

WASTE DISPOSAL: Under New York Law, operators of a facility which accepts trees and wood from landscapers for conversion into wood chips does not operate a "solid waste management facility.". Steck v. Jorling, 631 N.Y.S.2d 737 (App. Div. 1995).

Here the Court determined that the plain language of New York law is that trees and wood are not solid waste and the defendants could not be required to obtain a permit to operate a solid waste management facility. The finding that defendant did operate such a facility was arbitrary and capricious

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal.

For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233.

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.