ENVIRONMENTAL LAW UPDATE

Wetlands Inspection

Paul owned waterfront property that included some tidal wetlands that were subject to state regulation. When he decided to extend his existing dock and add another boat lift, he submitted the necessary application to the state, but he refused to consent to a land-based inspection of the premises. Nevertheless, following the usual procedure, an inspector went to the property to make sure that plans submitted with the application accurately reflected existing conditions and to evaluate the possible impact of the project on the wetlands.

When the inspector arrived and no one answered the door, she passed through a gate with a "No Trespassing" sign on it to get into the backyard that led to the dock area. With a video camera rolling, Paul confronted the inspector, who identified herself and explained the reason for her visit. Paul told the inspector that she was trespassing, threatened to have her arrested if she did not leave immediately, and then escorted her off the property. The whole encounter took about three minutes.

Paul sued the state inspector for violation of his right not to be subjected to unreasonable searches or seizures. It is true as a general rule that an inspection of a private dwelling by a local or state officer, without either a warrant or the consent of the owner, is unreasonable absent certain exceptional circumstances. Unfortunately for Paul, his case fell within one of those exceptions, causing his lawsuit to fail. Under the "special needs" doctrine applied by the court, a weighing of several factors can justify a warrantless administrative inspection undertaken as part of a regulatory scheme.

In Paul's case, he had a diminished expectation of privacy since the outside areas around his home could be viewed by the public. Paul's privacy interest was also weakened by his having submitted the application that prompted the inspection in the first place. The intrusion by the inspector was minimal and was hardly different from the kind of observation of the property that anyone could have accomplished from the water behind Paul's house. The court emphasized that each case would turn on its particular facts, but in Paul's case the state's interest in regulating construction on tidal wetlands overrode any expectation of privacy.

No Help for Toxic Waste Cleanup

A company bought an aircraft engine maintenance business and operated the business for a few years. It then discovered that the property on which the business was located was contaminated with toxic waste, both because of the company's activities and the activities of the previous owner. The company reported itself to a state environmental agency, which told the company that it was in violation of state laws and directed that the site be cleaned up. However, neither the state agency nor its federal counterpart, the Environmental Protection Agency, ever brought a proceeding to force the cleanup.

Under the state's supervision, the company cleaned up the property (incurring costs in the millions of dollars) and unsuccessfully sued the previous owner that had contributed to the contamination, in hopes of getting a contribution to the cleanup costs as well. This case is a study in how a few words in a statute can control the outcome in a dispute where large sums of money are at stake.

The claim for a contribution to the cleanup costs rested on a part of the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). That statute states that any person "may" seek contribution from any other person who is or may be liable under CERCLA, "during or following any civil action" under CERCLA. The U.S. Supreme Court interpreted the statutory language as meaning that the company could not seek contribution from the previous owner (and fellow polluter) because no proceeding under CERCLA was ever instituted against the company that cleaned up the toxic waste.

The use of "may" by Congress meant that an action for contribution was authorized only if the conditions that followed were present, including a civil action under CERCLA. Appeals by the company based on the underlying purposes of CERCLA fell on deaf ears before the Court. As the Court put it, "It is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."