Manufacturers In The Courts: May 2011

A Publication of the National Association of Manufacturers
May 2011

Environmental litigation continues to dominate the NAM's efforts in court, as our challenges to greenhouse gas regulations are supplemented by litigation against the Environmental Protection Agency's regulation of boilers and incinerators. In May, we filed our principal briefs supporting our challenges to two of the EPA's pieces in the greenhouse gas regulatory puzzle. May was also the deadline for challenging new EPA regulations on boilers and incinerators, and we also supported the Portland cement industry's challenge to regulations that, among other things, will add penalties for equipment malfunctions.

In another area, we continue to push back on junk science theories that would hold a manufacturer liable for any exposure to a hazardous substance. But first, a Supreme Court decision on verification of worker citizenship will cause problems for some manufacturers.

Decided Cases

Employment Law

No preemption of state immigration verification requirements. On May 26, the Supreme Court, over 3 dissents, affirmed a lower court decision upholding the Legal Arizona Workers Act. Unfortunately, this means that employers in Arizona can be punished for not following the Act's procedures for verification of the citizenship of employees. The NAM filed an amicus brief highlighting the tremendous burden caused by state systems that impose a wide variety of inconsistent verification requirements or that mandate use of the voluntary federal E-Verify program, and argued that such systems are preempted by the uniform and comprehensive federal system. The Court disagreed, finding that the state law was a licensing statute, not one that imposes civil or criminal sanctions. Chamber of Commerce v. Whiting (S. Ct.).

Pending Cases

Environmental Regulation

NAM's challenge to EPA's boiler MACT and incineration rules. In May, the NAM and others asked the EPA for an immediate stay of its Maximum Achievable Control Technology (Boiler MACT) standard and the rule establishing stricter emissions limits on commercial and industrial solid waste incineration (CISWI) units. EPA agreed and announced that it was reconsidering the rules and delaying the effective dates. The rules have the potential to dramatically impact the U.S. economy and impose enormous costs on key industrial sectors. The NAM has long expressed concern that the rules will have a harmful impact on manufacturers of all sizes and could result in the loss of hundreds of thousands of high-wage U.S. manufacturing jobs. The NAM also filed formal petitions in federal court challenging the rules, to ensure that if the EPA fails to adequately reconsider its actions, an appeals court panel will have a chance to intercede. Legal arguments in the cases will be developed over the next several weeks. U.S. Sugar Corp. v. EPA (D.C. Cir.) (Boiler MACT) and American Forest & Paper Ass'n v. EPA (D.C. Cir.) (CISWI rules).

NAM files first brief against EPA greenhouse gas rules. On Tuesday, May 10, the NAM filed its first main brief challenging long-standing EPA rules that are now being used to regulate greenhouse gases. The rules, adopted in 1978, 1980 and 2002, are being used as a part of the agency's overall effort to regulate greenhouse gases, but the Clean Air Act was never intended to control or regulate greenhouse gas emissions. Because there was no indication when they were promulgated that the EPA would use them in this way, the NAM has new grounds to challenge them. This "grounds arising after" litigation is the first of four main cases being briefed over the next seven months. The brief focuses primarily on the timeliness of the lawsuits and on the fact that EPA's interpretation of the Clean Air Act is unreasonable and creates absurd results. American Chemistry Council v. EPA (D.C. Cir.).

Second brief involves controversial "endangerment" finding. On May 20, the NAM and 79 other parties filed an extensive opening brief challenging the legality of EPA's use of its "endangerment" finding to regulate greenhouse gas (GHG) emissions. EPA determined that a combination of six gases endanger public health and welfare, and has used that finding to impose GHG regulations on stationary sources, including manufacturing facilities. This brief contains the principal legal arguments against EPA's finding, and is part of a series of suits the NAM has brought challenging the agency's authority and multiple regulations in this area. The Government's response is due in August, and oral arguments are expected to be scheduled for early 2012. NAM v. EPA (D.C. Cir.).

EPA regulation of Portland cement raises larger issues for manufacturers. The NAM and other associations filed an amicus brief on May 23 supporting a court challenge to EPA's rule establishing national emissions standards for hazardous air pollutants (NESHAPs) for the Portland cement manufacturing industry. The rule, issued last September, involves interpretations of EPA duties and discretion that are relevant to NESHAPs for other industries, such as chemical plants, pulp and paper mills, steel pickling operations and word furniture manufacturing. Of particular concern is EPA's pollutant-by-pollutant approach, which establishes emissions limits that cannot be met by any existing facility. We highlighted the special problems inherent in sudden, unexpected failures of process equipment or pollution control technology, which EPA no longer recognizes as special circumstances that should fall outside of emissions standards for normal operations. Further, EPA failed to recognize that the source of raw materials at different plants makes compliance with a uniform national standard difficult or impossible. Portland Cement Ass'n, Inc. v. EPA (D.C. Cir.).

Product Liability

"Any exposure" theory of causation is flawed. This is another case that illustrates a major battleground in asbestos litigation today. The issue involves attempts by plaintiffs to hold manufacturers liable for increasingly trivial exposures to hazardous substances. In this case, a worker was exposed to amphibole insulation products sufficient to cause his mesothelioma, but he sued the manufacturer of dryer felts -- used in his workplace -- because they contain chrysotile asbestos fibers. Exposure to those fibers was minimal (if any), but the plaintiff relies on the "any exposure" theory, i.e., that any occupational exposure to asbestos, no matter how slight, is sufficient to be a substantial contributing factor to the plaintiff's disease. The NAM's amicus brief opposing the $11 million verdict argued that the trial court wrongly accepted expert testimony that any occupational exposure above ambient level was sufficient for causation. The theory does not satisfy normal standards for expert testimony and is irreconcilable with the fundamental toxicology principle relating to dosage. Barabin v. AstenJohnson, Inc. (9th Cir.).


Recently, some of the key lawyers that work with the Manufacturing Law Center on cases of importance to manufacturers met with NAM President and CEO Jay Timmons. For further details, and for access to our entire litigation program, visit the Manufacturing Law Center .


Quentin Riegel
Vice President, Litigation & Deputy General Counsel
(202) 637-3058 •

National Association of Manufacturers
1331 Pennsylvania Avenue, NW Suite 600
Washington, DC 20004-1790

Check out the NAM's Manufacturing Law Center at

Copyright © 2011 National Association of Manufacturers



Related Tags: