The 9th Circuit Court of Appeals decision in Center for Biological Diversity v US Forest Service, 2019 WL 2293425 (May 30, 2019) raises important questions about the extent to which someone might be held liable for failing to prevent someone else from causing environmental harm. The Center for Biological Diversity alleged that the Forest Service violated the Resource Conservation and Recovery Act (also known as RCRA) 42 USC 6972, by contributing to the disposal of waste in Arizona’s Kaibab National Forest. The alleged contribution to the waste disposal was the failure to prohibit hunting in the Kaibab. Hunting sometimes leaves lead bullets in the carcass of dead animals, which is the alleged waste disposal.
The case reached the 9th Circuit on a number of procedural issues. First, the district court dismissed the case based on standing – the rule that in order to challenge agency action one must be injured by that action in a manner that is traceable to the actions of the agency. The 9th Circuit reversed, finding that plaintiff had alleged an injury and that the relief sought could at least partially redress that alleged injury. On remand, the district court dismissed the case as nonjusticiable, meaning that any decision by the court would not be effective in addressing the alleged harm. A decision that is merely advisory is nonjusticiable. The 9th Circuit reversed, finding that while the Forest Service could not prevent the harm, it could regulate in a manner that might mitigate the some of the harm. The possibility of partial redress made the case justiciable.
The court next addressed the substantive issue: to what extent does it make sense to say that the Forest Service caused or contributed to environmental harm by not taking steps that could have mitigated some portion of the harm. The plaintiff argued that the Forest Service is like a property owner who has a duty with regard to nuisances on its property. The Forest Service argued that the claim is foreclosed by the decision in Hinds Investments v Angioli, 654 F3d 846 (9th Cir. 2011), which addressed whether the manufacturer of a product that resulted in the disposal of hazardous waste could be held liable as a contributor to the disposal. In Hinds, the manufacturer had no ongoing connection to the product or the user of the product.
The court outlined some of the arguments made by the parties, but decided that this issue, which was not addressed in the district court, should be addressed there before being reviewed by the Court of Appeals.
One of the key functions of environmental lawyers is to assess potential environmental liabilities and provide advice regarding how to structure transactions in a manner that avoids or allocates such risks. Allocation documents will need to be adjusted to address this new potential risk.