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JUDICIAL: Includes water rights, TSCA, agency action

In Baley v. United States, No. 2018-1323, 2019 WL 5995861 (Fed. Cir. Nov. 14, 2019), the United States Court of Appeals for the Federal Circuit considered a claim concerning the Klamath River Basin reclamation project (the Klamath Project) which includes the Upper Klamath Lake and the Klamath River. The Klamath Project is managed by the Depart of Interior’s Bureau of Reclamation (Bureau). It supplies water to hundreds of farms, and is used to protect the tribal trust resources of several Native American Tribes. In 2001, the Bureau temporarily ceased water deliveries to farmers and irrigation districts from the Klamath Project in order to meet certain Endangered Species Act (ESA) requirements which were outlined in Biological Opinions (BiOps) prepared by the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). The Bureau also took this action in order to meet its tribal trust obligations. In response to the Bureau’s decision to halt water deliveries, fourteen irrigation organizations and thirteen individual farmers filed suit in the United States Court of Federal Claims alleging that the temporary halt of water deliveries in 2001 constituted a taking of their water rights without just compensation in violation of the Fifth Amendment to the United States Constitution. The government’s position was that the temporary halt of deliveries was to maintain water levels in the Klamath Project necessary to protect several species of fish listed under the ESA, as well as to maintain the amount of water necessary to satisfy the Bureau’s trust obligations to the Tribes that had water rights in the Klamath Project. What followed was a lengthy legal battle that resulted in a judgment in favor of the government from the Court of Federal Claims in October, 2017. The plaintiffs filed this appeal in which the Court of Appeals ultimately upheld the judgment of the lower court.

The Court of Federal Claims decision that the plaintiffs appealed held that the plaintiffs’ takings claims were barred by the prior reserved water rights of the Tribes. In determining whether to uphold the lower court’s claim, the Court of Appeals stated that if it concluded that the superior water rights of the Tribes required that the Bureau temporarily halt water deliveries to the plaintiffs, then the opinion of the lower court must be upheld. The plaintiffs made three arguments for why the lower court’s opinion should have been reversed: (1) it was an error for the lower court to conclude that, in 2001, the Tribes held rights to an amount of water that was at least equal to what was needed to satisfy the Bureau’s ESA obligations; (2) it was an error for the lower court to conclude that the Tribes had senior water rights to the Klamath Project water; and (3) the lower court was mistaken in multiple ways regarding the exercise of the Tribes’ water rights, specifically arguing that the Bureau should not have taken unilateral action in 2001 but should have instead south a judicial determination regarding the water rights. The Court of Appeals rejected each of these arguments. First, the court concluded that “at the bare minimum, the Tribes’ rights entitle them to the government’s compliance with the ESA in order to avoid placing the existence of their important tribal resources in jeopardy.” The court noted that the listed fish species that the Bureau was seeking to protect in 2001 were all species that were included in the Tribes’ fishing rights. Second, the court concluded that the Tribes had a senior water right to the Klamath Project water, providing a thorough discussion of how each tribe had been using the water within the Klamath Project since the creation of the Klamath Tribes’ reservation. Finally, the court concluded that the federal reserved water rights of the Tribes did not need to have been adjudicated before they were asserted by the Bureau because the law used by the plaintiffs to support this argument is state law and tribal water rights arising from federal reservations are federal rights not governed by state law.

In Safer Chemicals, Healthy Families v. U.S. EPA, No. 17-72260, 2019 WL 5997404 (9th Cir. Nov. 14, 2019), the court considered the plaintiffs’ request that it review a rule promulgated by the United States Environmental Protection Agency (EPA) that establishes a process to evaluate the health and environmental risks of chemical substances. The rule, known as the Risk Evaluation Rule, was promulgated pursuant to authority granted to EPA by a provision added in 2016 to the Toxic Substances Control Act (TSCA). The plaintiffs argue that the Risk Evaluation Rule violates several of TSCA requirements. Specifically, the plaintiffs argued that: “(1) that TSCA requires EPA to evaluate risks associated with a chemical’s use collectively before determining that the chemical is safe; (2) that EPA must consider all of a chemical’s conditions of use in that evaluation; and (3) that, when considering conditions of use, EPA must evaluate past disposals of all chemicals, as well as the use and subsequent disposal of chemicals not currently or prospectively manufactured or distributed in commerce for that use.” Plaintiffs allege that the Risk Evaluation Rule demonstrates that EPA will not do any of these things. The Ninth Circuit ultimately held that it lacked the jurisdiction to review the plaintiffs’ first challenge, that the plaintiffs’ second challenge failed on the merits, but that the plaintiffs’ Petition for Review would be granted with respect to their third challenge.

First, the plaintiffs argued that according to their interpretation of the Risk Evaluation Rule, EPA intended to conduct evaluations of chemical substances only by individual use of the substance. According to plaintiffs, this would violate TSCA which the plaintiffs view as requiring EPA to conduct evaluations of chemical substances holistically by considering all the uses of a substance at once. The court concluded that it did not have jurisdiction to review the plaintiffs’ first challenge because the plaintiffs’ interpretation of what EPA intended to do was too speculative. Second, the plaintiffs argued that the Risk Evaluation Rule violates TSCA’s requirement that EPA consider all of a chemical’s conditions of use when conducting a risk evaluation regardless of whether the plaintiffs were correct in their first argument. The plaintiffs pointed to language in the preamble of the Risk Evaluation Rule was well as provisions of the Rule to support their argument that EPA was asserting discretion to exclude some conditions of use in conducting a risk evaluation. The court concluded that the plaintiffs’ second challenge failed on the merits because the language in the preamble was not a final agency action and therefore could not be reviewed, and that the provisions in the Risk Evaluation Rule did not actually assert discretion to exclude conditions from use evaluation. Finally, the plaintiffs argued that the Risk Evaluation Rule violated the TSCA by defining the term “conditions of use” in a way that directly contradicted the statute. Under the Risk Evaluation Rule, the term “conditions of use” is defined to exclude “legacy uses” which the Rule defines as “the circumstances associated with activities that do not reflect ongoing or prospective manufacturing, processing, or distribution.” The court noted that a legacy use would include asbestos that is infrequently used in making new insulation, but remains in place in previously installed insulation. The court concluded that EPA’s exclusion of legacy uses contradicts TSCA’s plain language because “TSCA’s definition of ‘conditions of use’ clearly includes uses and future disposals of chemicals even if those chemicals were only historically manufactured for those uses.”



Notice announcing the availability of EPA’s proposed interim registration review decisions and opening of a 60-day public comment period of the proposed interim decisions for several pesticides. Info here.

Notice announcing the availability of EPA’s draft human health and/or ecological risk assessments for the registration review of several pesticides. Info here.