• Waxman-Markey: A Lawyer's Dream?
  • May 19, 2009 | Author: David C. Apy
  • Law Firm: Saul Ewing LLP - Princeton Office
  • For those who focus on environmental enforcement issues, the Waxman-Markey discussion draft bill is a must read.  Included in the bill is a citizen suit provision that would lower the bar for filing citizen suits and, if adopted in its present form, will result in years of litigation over what it means. The proposed provision would set a definition of what constitutes “harm” for the purposes of legal standing as “any effect of air pollution (including climate change) currently occurring or at risk of occurring, and the incremental exacerbation of any such effect or risk that is associated with a small incremental emission of any air pollutant (including any greenhouse gas), whether or not the effect or risk is widely shared.”
     
    Further, a citizen would have a cause of action if the alleged harm is attributable to a violation or a failure to act that “slows the pace of implementation” of the Act or compliance with the Act, or results in any emission of greenhouse gas or other air pollutant at a higher level than would have been emitted in the absence of the violation or failure to act.”  (Emphasis added.)  The potential scope of liability under this proposed language is immeasurable.

    The bill further provides that that if a court determines that an EPA action is arbitrary, capricious or otherwise unlawful, the court can remand the action without vacatur if vacatur would “impair or delay protection of the environment” or otherwise “undermine the timely achievement of the purposes of this Act”.  Finally, if the court does remand a matter to EPA, the bill would require EPA to act within certain timeframes (unless the court sets other deadlines).

    The proposed bill, if adopted in its present form, contains significant ambiguities while attempting to throw a very wide liability net.  However, if the bill is not clarified and revised, the subsequent litigation will last for decades and cost millions of dollars (if not more) in wasted expense.