SCOTUS Invites Acting U.S. Solicitor General to Weigh in on Case with Potential Nationwide Implications for Environmental Law

By Josh Berliner

In June of 2016, the State of New Mexico sued the State of Colorado, alleging that Colorado is “directly responsible” for the hazardous conditions of the Gold King Mine and the subsequent damage from 3 million gallons of highly acidic and metallic mine wastewater released downstream on August 5, 2015 that turned the Animas River orange.[1] New Mexico claims that this disaster was years in the making, due to Colorado’s willingness to allow abandoned mine tunnels to be plugged up with concrete “bulkheads” as a cost-saving alternative to wastewater treatment since 1996.[2] Before the plugs were put in place, discharges from the mine were insignificant according to New Mexico, but after the first bulkhead was put in place, the leakage from the Gold King Mine (and nearby Mogul Mine) increased significantly.[3] New Mexico claims that Colorado knew or should have known that this 1996 decision was flawed because the bulkheads caused the discharge from the Sunnyside Mine to flow into neighboring mines through hydraulically connected mine portals.[4]

New Mexico is claiming that these allegations subject Colorado to be held liable under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) (specifically under 42 U.S.C. § 9607(a)[5] and 42 U.S.C. § 9613(g)(2)[6]), and under the Resource Conservation and Recovery Act’s (“RCRA”) imminent and substantial endangerment provision (specifically under 42 U.S.C. § 6972(a)(1)(B)).[7] In particular, New Mexico is asking for compensatory and punitive damages to compensate for investigation efforts into the toxic release, remediation efforts, economic loss, diminution in value and stigma damages, and an order to abate the ongoing public nuisance.[8] In Colorado’s October 2016 opposition, they argue, among other things, that Congress intended the district courts, not the U.S. Supreme Court, to have exclusive original jurisdiction over any case filed under CERCLA or RCRA.[9] For CERCLA specifically, Colorado argues that as a regulating authority, it does not qualify as an “operator” of polluting facilities, as an “arranger” of hazardous material disposal, or as a “transporter” of pollutants to fall under the purview of the statute.[10]

In late November 2016, the U.S. Supreme Court asked the acting U.S. Solicitor General at the time (Ian Heath Gershengorn) to file a brief expressing the U.S. Government’s views on the case, which has yet to be filed.[11] This case could have profound nationwide implications because the case could justify one state suing another state over state level environmental policies with which it disagrees if such policies have measurable negative effects on that state, depending on how the U.S. Supreme Court comes out on the case.[12] Given the fact that the EPA will now be less active in bringing enforcement actions with the changing administration, bringing such a case against other states could become a vital method to deal with interstate pollution issues.[13]

 

 

 

 

[1] Bill of Complaint of State of New Mexico at 4, New Mexico v. Colorado, No. 22O147 ORG (U.S. June 20, 2016).

[2] Stan Parker, Colo. Enviro Policies Set Stage for Gold King Spill, NM Says, Law360 (June 23, 2016, 9:35 PM), https://www.law360.com/articles/810196.

[3] Bill of Complaint at 6.

[4] Id. at 20.

[5] Id. at 40.

[6] Id. at 42.

[7] Id. at 43.

[8] Id. at 51.

[9] Stan Parker, Justices Want US Input on New Mexico’s Gold King Suit, Law360 (November 28, 2016, 7:50 PM), https://www.law360.com/articles/866205.

[10] Id.

[11] New Mexico v. Colorado, SCOTUSblog (2017), http://www.scotusblog.com/case-files/cases/new-mexico-v-colorado/.

[12] Parker, supra note 2.

[13] Id.

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