On May 12, 2011, the Center for Environmental Health (CEH) notified approximately 50 aviation gasoline (AVGAS) suppliers and retailers in California that it intends to sue them for violating the Safe Drinking Water & Toxic Enforcement Act of 1986 (“the Act”). The Act prohibits a business from releasing toxins that can make their way into drinkable water sources. The Act specifically identifies lead as a toxin. The Act provides for civil penalties for violations of the act up to $2,500 per day for each violation. The Act contains a “bounty hunter” provision which authorizes private civil suits and allows the litigants to recoup up to 25% of all civil and criminal penalties collected.
There are important exceptions to the Act’s reach. For instance, if a business has 10 employees or less then that business is exempt. Next, in order for a private lawsuit to proceed under the Act, the private litigant must first give notice and allow 60 days to pass. During this 60 day waiting period, if neither the State Attorney General nor the local District/City Attorney prosecutes an action, then the private litigant may file their lawsuit.
In response to the notification by CEH, the General Aviation Manufacturers Association (GAMA) released a statement highlighting the fact that the regulation of all aviation related activities is within the purview of the Federal government, namely the Federal Aviation Administration (FAA) and the Environmental Protection Agency (EPA). The statement includes the following sentence: “The threatened CEH lawsuit in California raises the specter of a patchwork of state regulations governing fuels pilots may or may not use in their piston-powered aircraft.” The points raised by GAMA in its statement segue nicely into a solid argument against CEH’s use of the Act against AVGAS suppliers and retailers based on the Commerce Clause.
Under Article I, Section 8 of the United States Constitution, Congress is given the exclusive power to regulate commerce among the states. This provision is known as the Commerce Clause. The purpose of the Commerce Clause is to prevent the individual states from imposing barriers and obstacles to interstate trade. State legislation that targets the channels of interstate commerce (i.e. the roads, rail lines, telephone lines, or airways); the instrumentalities of interstate commerce (i.e. railroad cars, buses, trucks, and airplanes); or that has a substantial relationship to interstate commerce is prohibited under the Commerce Clause. Piston powered aircraft taking on AVGAS in California travel from state to state in interstate commerce. Without question, CEH’s attempt to regulate AVGAS via the Act runs afoul of the Constitution's Commerce Clause. The legal analysis shows that the actions being challenged by CEH fall squarely into the ambit of protection of the Commerce Clause and the Federal Government. Put another way, the Commerce Clause will not allow the Act to be used as a sword in this way against AVGAS suppliers. As GAMA indicated in its press release, change in this area must come from the Federal Government through agencies such as the FAA and the EPA.
The 60 day notice period that began on May 12, 2011, ended on July 11, 2011. Presumably, CEH will file its lawsuit and serve copies of the complaint on the previously notified parties. If your business is named as a party to the suit by CEH, then you must take action to protect your legal rights by contacting an attorney. If you have more questions or concerns, then feel free to contact Ronnie R. Gipson Jr., Esq. at (415) 655-6820 or by email at Gipson@higagipsonllp.com.
Ronnie R. Gipson Jr. is an aviation attorney and a founding partner at Higa & Gipson, LLP in San Francisco.
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