The Nickel Report

Earlier this month, the Supreme Court granted a petition for certiorari in Guam v. United States (No. 20-382), a case involving liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The case gives the Court an opportunity to better delineate the boundary between “cost recovery” claims under section 107, and “contribution” claims under section 113. See 42 U.S.C. §§ 9607, 9613(f). The Court will specifically address what kinds of settlement agreements trigger a section 113 contribution claim and its corresponding three-year statute of limitations.

Last month, the Supreme Court held oral argument in a case that addressed cleanup obligations for potentially responsible parties (PRPs) at Superfund sites. In Atlantic Richfield Company v. Christian, a company tasked with remediating one of the nation’s largest Superfund sites is urging the Supreme Court to overturn a Montana Supreme Court decision that permitted residents to sue the company for additional restoration damages, despite its ongoing cleanup efforts under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

On July 9, President Trump announced Judge Brett Kavanaugh of the Court of Appeals for the DC Circuit as his nominee to replace retiring Justice Anthony Kennedy on the Supreme Court. Kavanaugh has developed an extensive history of jurisprudence during his twelve-year tenure on the DC Circuit. And, given the DC Circuit’s heavy administrative law caseload, Kavanaugh has authored numerous opinions involving environmental law. The upcoming confirmation process is sure to include a focus on Kavanaugh’s robust environmental and administrative law record and what it might portend for the future.

Fifty years ago, the Supreme Court held that in the Federal Power Act (FPA), Congress had drawn a “bright line, easily ascertained, between federal and state jurisdiction…by making [federal] jurisdiction plenary and extending it to all wholesale sales in interstate commerce except those which Congress has made explicitly subject to regulation by the States.” FPC v. Southern California Edison Co. (Colton), 376 U.S. 205, 206-07 (1964). Several recent federal court decisions, including two decisions addressing the implementation of Zero Emissions Credits (ZECs) by New York and Illinois, highlight just how blurred that “bright line” has become in an era where Federal Energy Regulatory Commission (FERC) regulation relies primarily on markets, rather than cost-of-service ratemaking, to ensure just, reasonable and not unduly discriminatory electricity prices. For good measure, these decisions also break new ground on the justiciability of FPA preemption claims brought by private parties in federal court.