O C F I T B L O G Legal Oil companies, government point fingers over cleanup of World War II-era pollution

Oil companies, government point fingers over cleanup of World War II-era pollution

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The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

During World War II, Congress authorized President Franklin Roosevelt to enlist oil refineries for the war effort. Centralization helped meet the war’s rapidly increasing demand for fuel. But it also led to a glut of hazardous waste, some of which leaked into the ecosystems surrounding the refineries. This week, we highlight petitions that ask the court to consider, among other things, who should pay – oil companies or the government – to clean up contamination from that pollution.

Hazardous waste is an expensive problem. Because the environmental damage from improperly stored waste can take years, or even decades, to materialize, those harmed by contamination down the line can be left footing the hefty bill for the cleanup. To ensure affected communities are not left hanging, Congress has allowed them to recover cleanup costs from a comprehensive list of polluters. That list includes anyone who “owned or operated” a “facility” where hazardous waste was disposed.

Valero Energy, the owner of Valero gas stations, is a global oil producer based in Texas. Of the 13 oil refineries it operates today across the United States, 12 were a part of Roosevelt’s effort to produce fuel for everything from military trucks to airplanes during World War II. Post-war inspections found that hazardous waste produced at all 12 refineries was leaking into surrounding environments and causing contamination.

Faced with liability, a group of Valero affiliates that run those refineries went to court, seeking to have the government bear some of the cleanup costs. They argued that the government should pay its fair share because it effectively “operated” the refineries through its extensive industry oversight during the war.

A federal district court in Michigan agreed with Valero that the government could be held partially responsible for cleanup costs, which it estimated at as high as $50 million per refinery.

The U.S. Court of Appeals for the 6th Circuit disagreed. For purposes of federal environmental remediation laws, the court of appeals reasoned, an “operator” is the body that makes “day-to-day” decisions “exercis[ing] control over the waste disposal process.” Although the government may have “influenced refineries’ business decisions during the war,” the 6th Circuit concluded, it never “operated” the facilities because individual refineries like Valero “made broader decisions about waste disposal” – for example, how to process the petroleum, how to handle waste, or where to put waste disposal sites.

In MRP Properties Company, LLC v. United States, Valero and its affiliates ask the justices to grant review and reverse the 6th Circuit’s ruling. They argue that the courts of appeals are divided over whether an entity is an “operator” only when it controls decisions over how to dispose of hazardous waste, or when it takes charge of pollution-producing activities more broadly. Review is especially warranted here, the oil companies insist, because this litigation is, in the words of the district court, the biggest ever brought under federal environmental cleanup laws.

A list of this week’s featured petitions is below:

Boam v. United States
23-625
Issue: Whether a defendant produces or possesses a depiction involving the use of a minor engaging in “lascivious exhibition,” and thus “sexually explicit conduct,” under 18 U.S.C. § 2251(a)18 U.S.C. § 2252A, and 18 U.S.C. § 2256(2)(A), by secretly recording a nude minor showering or engaging in ordinary grooming activities, when the video depicts absolutely no sexual or sexually suggestive conduct of any kind.

Ravenell v. United States
23-638
Issue: Whether, to comply with 18 U.S.C. § 3282(a) in a prosecution for a non-overt-act conspiracy, the government bears the burden of proving to a jury that the conspiracy existed within the limitations period, or instead bears no burden beyond proving the elements of the non-overt-act conspiracy.

Brinker International, Inc. v. Steinmetz
23-648
Issue: Whether, under the Rules Enabling ActFederal Rule of Civil Procedure 23, and this court’s precedents, a class can be certified by ignoring individualized issues of damages and injury and instead proposing to award every class member the same “average” amount for alleged injuries even if they did not suffer those injuries at all.

Royal Canin U.S.A., Inc. v. Wullschleger
23-677
Issues: (1) Whether a post-removal amendment of a complaint to omit federal questions defeats federal-question subject matter jurisdiction pursuant to 28 U.S.C. § 1331; and (2) whether such a post-removal amendment of a complaint precludes a district court from exercising supplemental jurisdiction over the plaintiff’s remaining state-law claims pursuant to 28 U.S.C. § 1367.

MRP Properties Company, LLC v. United States
23-687
Issue: Whether, when analyzing whether an entity is a facility “operator” under the Comprehensive Environmental Response, Compensation, and Liability Act, courts should consider pollution-producing activities that the entity managed, directed, or conducted, or should instead limit this analysis to waste-disposal and regulatory-compliance activities.

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