answering brief of the appellant, robert r. scott ... · 2 pfas comprises a large class of per- and...
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THE STATE OF NEW HAMPSHIRE
SUPREME COURT
No. 2020-0058
Appeal of Robert R. Scott, Commissioner, New Hampshire Department ofEnvironmental Services
INTERLOCUTORY APPEAL PURSUANT TO RULE 8 FROM ANORDER OF THE MERRIMACK COUNTY SUPERIOR COURT
ANSWERING BRIEF OF THE APPELLANT, ROBERT R. SCOTT,COMMISSIONER, N.H. DEPARTMENT OF ENVIRONMENTAL
SERVICES
June 29, 2020 THE STATE OF NEW HAMPSHIREDEPT. OF ENVIRONMENTALSERVICES
GORDON J. MACDONALDATTORNEY GENERAL
K. Allen Brooks, Bar No. 16424Senior Assistant Attorney GeneralChief, Environmental Protection BureauChristopher G. Aslin, Bar No. 18285Senior Assistant Attorney GeneralOffice of the Attorney General33 Capitol StreetConcord, N.H. 03301-6397(603) 271-3679
The State requests fifteen minutes of oral argument before the full court, tobe presented by Senior Assistant Attorney General Christopher G. Aslin.
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Table of Contents
Table of Authorities ................................................................................... 4
Constitutional Provisions, Statutes and Rules ............................................. 6
Statement of Facts and of the Case ............................................................. 7
A. Statutory Background .................................................................. 7
B. NHDES PFAS Rulemaking ......................................................... 8
Summary of the Argument ........................................................................13
Argument ..................................................................................................14
I. Standard of Review ........................................................................14
II. Plaintiffs Failed to Demonstrate Harm Sufficient to Supportthe Preliminary Injunction ..............................................................14
A. Plaintiffs Allege neither Probable nor Immediate Harm ..............17
1. None of the Plaintiffs Face Probable Treatment Costs .............18
2. Alleged Business Losses are Speculative .................................20
3. Testing Costs are Unsubstantiated ...........................................24
III. The Trial Court Erred by Finding a Likelihood of Success onthe Merits Where the Plain Language of RSA 485:3 Does NotRequire a Formal Cost-Benefit Analysis ........................................26
IV. Establishment of an AGQS under RSA 485-C:6 Is Not SolelyDependent on Establishment of an MCL under RSA 485:3 ............31
V. The Trial Court Did Not Abuse Its Discretion By Denying aPreliminary Injunction Based on an Alleged UnfundedMandate in Violation of Part I, Art. 28-a of the NewHampshire Constitution or RSA 541-A:25 .....................................33
A. In the Absence of a Showing of Immediate Harm,Plymouth Water District is Not Entitled to a PreliminaryInjunction....................................................................................34
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B. The Trial Court Properly Applied the City of ConcordAnalysis to Find No Unfunded Mandate .....................................35
C. In the Absence of a State Mandate for a New Program,RSA 541-A:25 Provides No Greater Restriction Than theConstitution ................................................................................38
VI. The Trial Court Did Not Abuse Its Discretion by Denying aPreliminary Injunction for Alleged Violations of APA Noticeand Comment Requirements ..........................................................39
Conclusion ................................................................................................42
Certificate of Compliance .........................................................................43
Certificate of Service ................................................................................43
Addendum ................................................................................................44
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TABLE OF AUTHORITIES
Cases
Am. Min. Cong. v. Thomas, 772 F.2d 617 (10th Cir. 1985) ................. 27, 28City of Concord v. State, 164 N.H. 130 (2012) .................................... 34, 35Cloud Peak Energy Inc. v. United States Dep’t of Interior, 415 F.
Supp. 3d 1034 (D. Wyo. 2019) ..............................................................17Conservation Law Found. v. U.S. Army Corps of Engineers, No. 19-
CV-868-JL, 2019 WL 7596288 (D.N.H. Oct. 12, 2019).........................26Dakota Indus., Inc. v. Ever Best Ltd., 944 F.2d 438 (8th Cir. 1991) ..........14DuPont v. Nashua Police Dep’t, 167 N.H. 429 (2015) ..............................14Everett Ashton, Inc. v. City of Concord, 169 N.H. 40 (2016) .....................14In re Garrison Place Real Estate Inv. Tr., 159 N.H. 539 (2009) ................27In re Kalar, 162 N.H. 314 (2011) ..............................................................33Johnson v. Shaw, 101 N.H. 182 (1957) .....................................................15Kansas Health Care Ass’n, Inc. v. Kansas Dep’t of Soc. & Rehab.
Servs., 31 F.3d 1536 (10th Cir. 1994) ....................................................17Kukene v. Genualdo, 145 N.H. 1 (2000)....................................................26Maplevale Builders, LLC v. Town of Danville, 165 N.H. 99 (2013) .... 32, 37Meredith Hardware, Inc. v. Belknap Realty Tr., 117 N.H. 22 (1977) .. 16, 22Murphy v. McQuade Realty, Inc., 122 N.H. 314 (1982) ............................15N.H. Ass’n of Counties v. State, 158 N.H. 284 (2009) ................................ 8N.H. Dep’t of Envtl. Servs. v. Mottolo, 155 N.H. 57 (2007) ........... 15, 16, 19Nat’l Ass’n of Home Builders v. E.P.A., 682 F.3d 1032 (D.C. Cir.
2012) ............................................................................................... 28, 29Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 570–71 (D.C.Cir.2002) ..........29New Mexico Dep’t of Game & Fish v. United States Dep’t of the
Interior, 854 F.3d 1236 (10th Cir. 2017) ................................................17Petition of Carrier, 165 N.H. 719 (2013) ..................................................31Spengler v. Porter, 144 N.H. 163 (1999) ...................................................14Thurston Enterprises, Inc. v. Baldi, 128 N.H. 760 (1986)..........................15University of Texas v. Camenisch, 451 U.S. 390 (1981) ............................14Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ..........................16
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Statutes
15 U.S.C. § 2601(c) ..................................................................................29Laws 2018, ch. 368 (SB 309) ................................................................ 8, 10N.H. RSA 31:3-a................................................................................. 24, 34N.H. RSA 485:1 ......................................................................................... 7N.H. RSA 485:16-e ............................................................................... 8, 30N.H. RSA 485:3 ................................................................................. passimN.H. RSA 485:4 ........................................................................................36N.H. RSA 52:21 ........................................................................................37N.H. RSA 541-A:10 ............................................................................ 30, 41N.H. RSA 541-A:11 ..................................................................................41N.H. RSA 541-A:25 ........................................................................... passimN.H. RSA 541-A:3....................................................................................30N.H. RSA 541-A:6.............................................................................. 30, 41N.H. RSA chapter 148-B ........................................................................... 7N.H. RSA chapter 485 ............................................................................... 7N.H. RSA chapter 541-A ..........................................................................39
Other Authorities
43A C.J.S. Injunctions § 54.......................................................................16
Rules
Superior Court Rule 11(b) .........................................................................25
Regulations
N.H. Admin. R. Env-Dw 700 ....................................................................10N.H. Admin. R. Env-Dw 800 ....................................................................10N.H. Admin. R. Env-Or 603.03.................................................................10N.H. Admin. R. Env-Or Table 600-1 ........................................................10N.H. Admin. R. Env-Wq 700 ..................................................................... 7N.H. Admin. R. Env-Wq 800 ....................................................................22
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Constitutional Provisions
N.H. CONST. pt. I, art. 28-a .............................................................. passim
CONSTITUTIONAL PROVISIONS, STATUTES AND RULES
Relevant constitutional provisions, statutes and administrative rules
are set forth in the State’s Opening Brief and Appendix. The following
additional statute is relevant to the Plaintiffs’ cross appeal:
N.H. RSA 541-A:25 - Unfunded State Mandates.
I. A state agency to which rulemaking authority has been granted,including those agencies, the rulemaking authority of which was grantedprior to May 6, 1992, shall not mandate or assign any new, expanded, ormodified programs or responsibilities to any political subdivision in such away as to necessitate further expenditures by the political subdivisionunless such programs or responsibilities are approved for funding by a voteof the local legislative body of the political subdivision. Such programsinclude those functions of a nature customarily undertaken bymunicipalities whether or not performance of such functions is required bystatute.
II. Such programs also include, but are not limited to, functions such aspolice, fire and rescue, roads and bridges, solid waste, sewer and water, andconstruction and maintenance of buildings and other municipal facilities orother facilities or functions undertaken by a political subdivision.
III. Included in the scope and nature of such programs are those municipalfunctions which might be undertaken by a municipality or by a privateentity and those functions which a municipality may legally choose not toundertake.
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STATEMENT OF FACTS AND OF THE CASE
The State incorporates by reference the Statement of Facts and of the
Case from its Opening brief. The State offers the following supplemental
statement of facts and of the case in regard to the issues raised by Plaintiffs’
cross-appeal.
A. Statutory Background
Public water systems, including those operated by the Plymouth
Water and Sewer District (“Plymouth Water District”) and the 3M
Company (“3M”) have been subject to regulation pursuant to the New
Hampshire Safe Drinking Water Act, RSA chapter 485 (formerly RSA
chapter 148-B, re-codified in 1989) (the “SDWA”) since 1977. Under the
SDWA, the Commissioner of the N.H. Dept. of Environmental Services
(“NHDES”) is required to establish rules to ensure the safety of drinking
water and to protect public health. RSA 485:1; RSA 485:3. Public water
systems are required to test for, and if necessary treat, harmful
contaminants to ensure safe drinking water. N.H. Admin. R. chapter Env-
Wq 700.
In 1984, Part I, Article 28-a of the New Hampshire Constitution was
ratified. Order, 4–5 [Add. 51–52].1 Article 28-a was enacted as “a safety
1 The State’s Appendix will be referenced as “App. Vol. __, __”. The trialcourt’s order and order on reconsideration appear in the addendum to theState’s Opening Brief and will be referenced as “Order, __ [Add. __]” and“Recon.Order, __ [Add. __],” respectively. The transcripts of the October18, 2019 preliminary hearing in the State’s Appendix will be referenced as“App. Vol. __,__ [_ Tr _].”
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net to save cities and towns from the burden of coping with new financial
responsibilities, not of their own creation, and to permit them a stronger
grasp of their fiscal affairs.” N.H. Ass’n of Counties v. State, 158 N.H. 284,
288 (2009). Ten years later, in 1994, the General Court adopted similar
provisions in RSA 541-A:25 applicable to new programs mandated by
administrative rule. Compare N.H. CONST. pt. I, art. 28-a (“The State
shall not mandate ….”) with RSA 541-A:25 (“A state agency to which
rulemaking authority has been granted … shall not mandate ….”).
In 2018, the Legislature passed SB 309 (Laws 2018, ch. 368)
requiring NHDES to adopt rules related to four per- and polyfluoroalkyl
substances (“PFAS”): Perfluorooctanoic Acid (“PFOA”);
Perfluorooctanesulfonic Acid (“PFOS”); Perfluorononanoic Acid
(“PFNA”); and Perfluorohexanesulfonic Acid (“PFHxS”).2 App. Vol. I,
107–112. Pursuant to SB 309, NHDES was required to “initiate
rulemaking” no later than January 1, 2019. Id. See also RSA 485:16-e;
RSA 485-C:6, V, VI. SB 309 was signed into law on July 10, 2018.
B. NHDES PFAS Rulemaking
In compliance with the mandate set forth in SB 309, NHDES
promptly began working to develop proposed maximum contaminant levels
(“MCLs”) and ambient groundwater quality standards (“AGQS”) for
2 PFAS comprises a large class of per- and polyfluoroalkyl compounds, asubset of which is called perfluorochemicals or “PFCs.” In this brief, theterm “PFAS” is used to refer to the four compounds currently regulated bythe State.
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PFAS. NHDES held three public technical work sessions on October 16,
28, and 19, 2018, in the towns of Litchfield, Portsmouth and Concord,
respectively, to inform the public of NHDES’ process for deriving MCLs
and AGQS for PFAS and to receive technical information,
recommendations, and technical comments from interested stakeholders.
Parties’ Undisputed Chronology [Add. 45].3 NHDES received extensive
comments, documents and references through the stakeholder process,
which helped inform NHDES’ development of health-based standards.
App. Vol. I, 9.
Using funding provided in SB 309, NHDES hired a toxicologist and
a health risk assessor to assist in developing the PFAS MCLs and AGQS.
App. Vol. I, 8. NHDES also engaged the services of an outside toxicology
expert to provide additional assistance. Id. Over several months, NHDES
preformed extensive work to develop PFAS standards protective of public
health. Id. at 8–12. NHDES also studied the occurrence of PFAS in New
Hampshire, the ability to reliably quantify and to treat PFAS contamination,
and the estimated costs of the proposed standards to affected parties. Id. at
12–19. In addition, NHDES assessed the benefit of the proposed standards
to affected parties. Id. at 19. After researching the ability to meaningfully
quantify benefits, and consulting with experts, including professors and
researchers at the University of New Hampshire, NHDES determined that it
was not possible to quantify benefits based on current data. Id. However,
3 A copy of the Parties’ Undisputed Chronology is appended to this brief inthe Addendum.
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NHDES determined that the qualitative benefits of significant avoided
negative health impacts, as well as the attendant avoidance of health care
treatment costs and associated losses of economic production and income,
would be significant. Id.
On December 31, 2018, NHDES initiated three separate rulemakings
as mandated by SB 309: one related to Water Quality and Quantity (Env-
Wq 402); one related to MCLs (Env-Dw 700 and 800 various sections &
paragraphs); and one related to AGQS (Env-Or 603.03 (b) intro & (2) and
(c) intro and Table 600-1). App. Vol. II, 390; App. Vol. IV, 348–58. On
January 2, 2019, NHDES published notice of the proposed rulemakings and
announced the initial proposed MCLs and identical AGQS as follows:
PFOA - 38 ppt; PFOS - 70 ppt; PFOA & PFOS combined - 70 ppt; PFHxS
- 85 ppt; and PFNA - 23 ppt. App. Vol. II, 390–91. Pursuant to the public
notice, NHDES announced that it would “continue researching health
studies,” and “risk management approaches that are scientifically valid and
could address any compounding effects between chemicals.” Id. Further,
NHDES expressed its intent to conduct “further exploration on quantifying
benefit to affected parties.” Id.
On January 4, 2019, NHDES published a “Summary Report”
outlining “how New Hampshire’s proposed MCLs and AGQSs for PFOA,
PFOS, PFNA and PFHxS were developed to ensure they are protective of
human health at all life stages,” as well as “information on the criteria that
the law requires NHDES to consider when establishing MCLs.” App. Vol.
I, 4, 8. On January 24, 2019, notices of the proposed rules were published
in the New Hampshire Rulemaking Register. App. Vol. IV, 348–58.
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On February 21, NHDES issued a press release entitled “New
Information May Change NHDES Proposed PFAS Drinking Water
Standards” (the “Second Notice”), which stated in pertinent part:
After the initial proposal, new scientific information wasevaluated by NHDES that may change the proposed drinkingwater standards. Specifically, a new assessment tool developedby the Minnesota Department of Health allows for aquantitative estimate of infant and child exposure to PFASthrough breastmilk and/or formula. This peer-reviewed modelwas published at the beginning of January after NHDES filedits Initial Proposal. NHDES’s assessment of the exposuremodel for the interaction of drinking water levels of PFAS andbreastfeeding (Goeden et al, 2019) indicates that health-baseddrinking water or groundwater standards for PFOA and PFOSwould potentially be lowered significantly below the initialproposal figures of 38 parts per trillion (ppt) and 70 ppt,respectively. NHDES is continuing to review the suitability ofthis assessment tool for PFHxS and PFNA based on this andother studies released in 2019. NHDES will need to completea review of the technical and cost implications of these health-based calculations, and any public comment received, prior toissuance of the Final Proposal.
NHDES feels that it is important to release this informationprior to the upcoming PFAS public hearings, so that there isplenty of time for people and organizations to examine thismodel and its use while developing their comments.
App. Vol. II, 394–95 (emphasis added). The Second Notice also
announced public hearings to be held on March 4, 5, and 12, 2019, in the
towns of Merrimack, Concord, and Portsmouth, respectively, and an April
12, 2019, deadline to submit written comments. Id.
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Among the attendees at the public hearings was the president of
Resource Management, Inc. (“RMI”), who provided oral comments at the
March 5, 2019, public hearing. App. Vol. III, 43. 3M submitted written
public comments, which specifically addressed the Goeden report and
Minnesota assessment tool referenced in the Second Notice. App. Vol. III,
243–46, 295–303.
Following public input at the three public hearings, receipt of
substantial written public comments, and additional review of the available
scientific data, NHDES issued a final proposed rule on June 28, 2019.
Add. 46. The final rule proposed more stringent MCLs and AGQS in order
to protect public health: PFOA-12 ppt; PFOS-15 ppt; PFHxS-18 ppt;
PFNA-11 ppt. App. Vol. IV, 363. On the same day, NHDES released a
summary of public comments submitted on the initial proposal with
NHDES’s responses, a technical background report on the derivation of the
revised standards, and an update on NHDES’s cost and benefit
consideration. App. Vol. III, 138–230.
On July 18, 2019, the Joint Legislative Committee on Administrative
Rules (“JLCAR”) held a hearing on each of the three final proposed rules,
and voted to approve them. Add. 46. On July 24, 2019, NHDES sent
adoption letters to the Office of Legislative Services indicating that the
effective date for the Final Rules would be September 30, 2019. Id.
Two months after issuance of the final rule, on the afternoon of
September 30, 2019—the same day that the rules went into effect—the
Plaintiffs filed a complaint and motion for temporary and preliminary
injunctive relief in the Merrimack Superior Court.
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SUMMARY OF THE ARGUMENT
As set out in the State’s Opening Brief, the trial court erred in
granting a preliminary injunction in the absence of a showing that any of
the Plaintiffs would suffer probable immediate harm without a grant of
injunctive relief. Plaintiffs still cannot establish such harm. The record
demonstrates Plaintiffs are unlikely to ever have treatment obligations
under the challenged rules. Further, Plaintiffs’ alleged business losses are
indirect, speculative, and not imminent. Only 3M has an immediate testing
obligation, but 3M has failed to verify any associated costs.
The trial court also erred in finding a likelihood of success on the
merits by improperly interpreting RSA 485:3 to require a formal cost-
benefit analysis where the plain language of the statute includes no such
mandate. Similarly, the trial court erred in enjoining AGQS adopted under
RSA 485-C:6 based on its improper interpretation of RSA 485:3.
Plaintiffs’ cross appeal fails to establish the trial court abused its
discretion in denying a preliminary injunction on alternative grounds. First,
in the absence of a showing of probable imminent harm, the Court need not
reach the merits of Plaintiffs’ unfunded mandate claims. Second, the trial
court properly found there was no new state mandate where the Safe
Drinking Water Act predated both Article 28-a and RSA 541-A:25.
Similarly, the trial court carefully reviewed the administrative record
and correctly determined NHDES provided timely and adequate notice of
both the expected reduction in the initially proposed standards and the
information relied upon by NHDES to reach the final proposal. Neither the
State APA, nor the federal “logical outgrowth” doctrine required more.
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ARGUMENT
I. Standard of Review
This Court “will uphold the decision of the trial court with regard to
the issuance of an injunction absent an error of law, [unsustainable
exercise] of discretion, or clearly erroneous findings of fact.” DuPont v.
Nashua Police Dep’t, 167 N.H. 429, 434 (2015) (quotations omitted).
However, this Court “review[s] the trial court’s application of the law to the
facts de novo.” Id. “Statutory interpretation is a question of law, which
[the Court] review[s] de novo.” Everett Ashton, Inc. v. City of Concord,
169 N.H. 40, 44 (2016).
Because Plaintiffs seek preliminary relief that is substantially the
same relief Plaintiffs would obtain if successful on the merits of the case,
Plaintiffs bear a heightened burden of proof. See, e.g., Dakota Indus., Inc.
v. Ever Best Ltd., 944 F.2d 438, 440 (8th Cir. 1991) (“The burden of
demonstrating that a preliminary injunction is warranted is a heavy one
where, as here, granting the preliminary injunction will give plaintiff
substantially the relief it would obtain after a trial on the merits.”); Spengler
v. Porter, 144 N.H. 163, 168 (1999) (Broderick, C.J. dissenting) (“[I]t is
generally inappropriate for a [trial] court at the preliminary-injunction stage
to give a final judgment on the merits.”) (quoting University of Texas v.
Camenisch, 451 U.S. 390, 395 (1981)).
II. Plaintiffs Failed to Demonstrate Harm Sufficient to Support thePreliminary Injunction
In response to the State’s arguments that the trial court erred by
granting a preliminary injunction in the absence of the required showing of
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probable and immediate harm, the Plaintiffs respond merely by arguing that
any harm they do suffer would be irreparable. Plaintiff’s Brief at 41–42.
Plaintiffs’ response paints only part of the harm picture—that of the
claimed irreparable nature of harm in a case against a sovereign entity. Yet,
Plaintiffs attempt to sidestep the State’s primary argument of no probable
immediate harm. In the absence of probable immediate harm, the trial
court’s grant of a preliminary injunction was legal error.
The applicable harm standard for preliminary injunctions in New
Hampshire is not in dispute. Over 60 years ago this Court reiterated the
already longstanding rule:
It has long been settled that injunctive relief is one of thepeculiar and extraordinary powers of equity exercised onlywhen warranted by imminent danger of great and irreparabledamage.
Johnson v. Shaw, 101 N.H. 182, 188 (1957) (internal quotations and
citations omitted) (emphasis added). This high standard has not been
relaxed over the years. See, e.g., Murphy v. McQuade Realty, Inc., 122
N.H. 314, 316 (1982) (“An injunction should not issue unless there is an
immediate danger of irreparable harm to the party seeking injunctive relief
….”) (emphasis added); Thurston Enterprises, Inc. v. Baldi, 128 N.H. 760,
764 (1986) (“[i]njunctions issue only to prevent imminent irreparable
harm.”) (emphasis added); N.H. Dep’t of Envtl. Servs. v. Mottolo, 155 N.H.
57, 63 (2007) (“An injunction should not issue unless there is an immediate
danger of irreparable harm to the party seeking injunctive relief ….”)
(internal citations omitted) (emphasis added).
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Thus, New Hampshire jurisprudence establishes a three-pronged
showing of harm required to justify the grant of preliminary injunctive
relief. First, the alleged harm must be “probable” or “likely” to occur. See
Meredith Hardware, Inc. v. Belknap Realty Tr., 117 N.H. 22, 26–27 (1977)
(holding that the “restraining power of equity cannot be invoked without a
showing that repetition of the act is probable,” or “absent a showing of the
likelihood of a future violation”) (emphasis added). C.f. Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008) (“Our frequently reiterated
standard requires plaintiffs seeking preliminary relief to demonstrate that
irreparable injury is likely in the absence of an injunction.”) (emphasis in
original). The alleged harm may not be rooted in a “mere possibility or fear
that injury will occur.” Meredith Hardware, 117 N.H. at 26.
Second, because a preliminary injunction “is a provisional remedy
that preserves the status quo pending a final determination of the case on
the merits,” an “injunction should not issue unless there is an immediate
danger of irreparable harm to the party seeking injunctive relief.” New
Hampshire Dep’t of Envtl. Servs. v. Mottolo, 155 N.H. 57, 63 (2007)
(emphasis added). Indeed, in the absence of an imminent or immediate
threat of harm to the plaintiffs that is likely to occur before a final
determination on the merits, there is no justification for the extraordinary
relief of a preliminary injunction.
Third, and only after a showing of probable, immediate harm, the
alleged harm must also be irreparable, id., meaning “harm that is not
redressible in a court of law through an award of money damages.” 43A
C.J.S. Injunctions § 54. All three components of “harm” must be
established: (1) probable or likely harm to the plaintiffs; (2) that is
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imminent or immediate; and (3) that is irreparable. The trial court erred by
granting a preliminary injunction without finding Plaintiffs had
demonstrated each of the three required elements.
A. Plaintiffs Allege neither Probable nor Immediate Harm
Plaintiffs focus their harm analysis on a claim that any harm suffered
will necessarily be irreparable because recovery against the State is barred
by sovereign immunity. Plaintiffs’ Brief at 41–42. Indeed, this is the only
element the trial court found. Order, 23 [Add. 70]. Yet, the very cases on
which Plaintiffs rely demonstrate that irreparability alone is not enough;
plaintiffs must first demonstrate that they will actually suffer harm. See
Kansas Health Care Ass’n, Inc. v. Kansas Dep’t of Soc. & Rehab. Servs.,
31 F.3d 1536, 1543 (10th Cir. 1994) (Holding that the existence of
sovereign immunity “simply indicates irreparability, but does not, in itself,
establish harm”); Cloud Peak Energy Inc. v. United States Dep’t of Interior,
415 F. Supp. 3d 1034, 1043 (D. Wyo. 2019) (“[T]o satisfy the irreparable
harm factor, the [movant] must establish both that harm will occur, and
that, when it does, such harm will be irreparable.”) (quoting New Mexico
Dep’t of Game & Fish v. United States Dep’t of the Interior, 854 F.3d
1236, 1251 (10th Cir. 2017)) (alterations in original). Because Plaintiffs
failed to establish that it is probable they will actually suffer immediate
harm from the challenged rules, their reliance on sovereign immunity is
misplaced: the claimed irreparability, without probable immediate harm is
insufficient to establish the required harm necessary to support the
extraordinary relief of a preliminary injunction.
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Despite continuing to raise the specter of “massive” treatment costs
alleged “to be imposed on municipal water and sewer utilities” that could
displace “high priority” municipal capital projects, Plaintiff’s Brief at 18,
Plaintiffs make no claim that Plymouth Water District or 3M will actually,
or are even likely to, incur such treatment costs. See Plaintiffs’ Brief at 41–
46. Plaintiffs’ silence is tacit acknowledgment that they, themselves, are
unlikely to incur any such treatment costs and certainly not in the
immediate future. Instead, Plaintiffs fall back on testing costs and turn to
allegations of potential indirect economic effects arising from the
challenged rules. As explained below, none of these alleged harms are
probable and imminent.
1. None of the Plaintiffs Face Probable Treatment Costs
As explained in detail in the State’s Opening Brief, only two of the
plaintiffs—3M and Plymouth Water District—operate water systems
subject to the PFAS MCL. State’s Brief at 14–20. Thus, only 3M and
Plymouth Water District are even potentially liable for treatment costs, and
only if the annual average PFAS concentrations in their drinking water
exceed the applicable MCL. Id. Because voluntary test results for both 3M
and Plymouth Water District reported PFAS concentrations below the
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applicable MCLs,4 State’s Brief at 16–17, neither water system is likely to
be required to treat their water. Moreover, any potential treatment
obligation would necessarily arise only in the future—well after resolution
of the merits of the instant case. In fact, the Plymouth Water District has
admitted that treatment, if required at all, would occur no earlier than year
two of the MCL: “It is understood that the first year under the PFAS rules
will involve sampling only.” App. Vol. IV, 36. Due to the preliminary
injunction the first year of testing has not yet commenced.
Faced with the record evidence demonstrating that any treatment
obligation is neither probable nor imminent, Plaintiffs make no mention of
treatment costs in support of their alleged showing of harm. Plaintiffs’
Brief at 41–46. Indeed, while Plaintiffs have repeatedly emphasized the
large estimated cost of the PFAS rules in general, see, e.g., Plaintiffs’ Brief
at 15 (noting NHDES’s estimate of costs of compliance), they cannot
demonstrate that the plaintiffs will bear any of those costs. Plaintiffs
cannot, of course, rely on harm to other non-parties to support their request
for a preliminary injunction. Mottolo, 155 N.H. at 63 (“An injunction
4 Plaintiffs incorrectly assert that the “detection limit” for the voluntaryPFAS testing at the Plymouth Water System was “20 ppt for PFOA and 40ppt for PFOS.” Plaintiffs’ Brief at 18–19. In reality, this was the reportinglimit, i.e. the lowest concentration at which an analyte can be detected andits concentration can be accurately reported. The actual detection limits—the limit of accurate (99% confidence) detection of the presence of PFAS—were between 1 and 8 ppt, well below the challenged standards. App. Vol.III, 36. The “non-detect” results indicates PFAS concentrations were belowthe detection limit.
20
should not issue unless there is an immediate danger of irreparable harm to
the party seeking injunctive relief.”) (emphasis added).
2. Alleged Business Losses are Speculative
Having effectively conceded that treatment costs are neither
probable nor immediate, Plaintiffs turn to alleged “business losses” three of
the four plaintiffs will allegedly suffer (3M, in addition to filing no
supporting affidavit, claims no business losses arising from the challenged
rules). However, the alleged business losses are speculative, based on
hypotheticals and inferences, and are not even alleged to be immediate.
In their brief, Plaintiffs rely on “evidence” provided by RMI that
“the challenged rules likely will preclude the use of recycled biosolids.”
Plaintiff’s Brief at 44. From this alleged “evidence” comes a cascading
array of business losses RMI, Plymouth Water District, and Mr. Hanson
claim will occur. Specifically, RMI claims its recycled biosolids business
would “end,” Plymouth Water District claims it will be forced to pay more
to dispose of its biosolids, and Mr. Hanson claims he will have to pay more
to procure biosolids. Id.
According to the brief, “RMI provided evidence that the challenged
regulations likely will preclude the use of recycled biosolids,” based on “an
example” in which “NHDES has taken the position that companies that
provide biosolids to properties that exceed the new water standard will be
held responsible for remediation costs.” Id. However, the actual affidavit
Plaintiffs advance as “evidence” is built on speculation and conjecture.
In support of their “evidence” of likely business losses, Plaintiffs cite
to the affidavit of RMI President Shelagh Connelly. Id.; App. Vol. IV, 49–
21
56. The relevant portion of Ms. Connelly’s affidavit focuses on a single
example of a drinking water well “adjacent to a long-term biosolids land
application site,” that tested above the challenged MCL for PFOA. Id. at
53–54. Ms. Connelly then provides the following anecdotal information
attributed generically to “NHDES”:
NHDES has indicated that they believe the source of the PFAScompounds is likely from the biosolids, though no siteinvestigation has taken place. NHDES has stated in publicmeetings that if public drinking water supplies are foundimpacted then they would identify the potentially responsibleparty (“PRP”) and hold them accountable for providingdrinking water and remediation. In this case, it was impliedthat the land application company would be held as the PRP,along with the WWTFs [waste water treatment facilities] thatsupplied the biosolids.
Id. at 54 (emphasis added). Based on a single anecdotal example, Ms.
Connelly expresses her “belie[f] that RMI and its customers may not be
able to continue operations pursuant to the requirements of Env-Wq 800,
making the beneficial use and recycling of biosolids and short paper fiber
impossible,” id. at 53 (emphasis added), and concludes with a hypothetical:
“If recycling biosolids is no longer viable, the potential disruption to
management of biosolids in New Hampshire will be catastrophic in my
opinion.” Id. at 56 (emphasis added).
As “evidence,” Ms. Connelly’s affidavit falls short on several levels.
First, the affidavit is rife with qualifiers and hypotheticals expressing little
more than Ms. Connelly’s fears, based on unspecified statements by
unnamed NHDES personnel, of the possibility of theoretical future impacts
22
on RMI’s business. However, a “mere possibility or fear that injury will
occur is insufficient to justify granting equitable relief.” Meredith
Hardware, 117 N.H. at 26.
Second, Ms. Connelly admits that there is no applicable standard for
PFAS levels in biosolids: “There are no standards or guidance for safe
levels of PFAS compounds in biosolids of which I am aware except for the
direct contact standard established by NHDES of 500 ppb.[5] I am not
aware of any research that has been conducted on PFAS in biosolids
impacting ground water.” App. IV, 53. Indeed, the administrative rules
governing sludge management, Env-Wq chapter 800, do not mention PFAS
and were not amended by the challenged rulemaking. See N.H. Admin. R.
Env-Wq ch. 800.
Third, the alleged business loss—an inability to sell or use recycled
biosolids—is contingent on a future regulatory change. As acknowledged
by Ms. Connelly, NHDES does not currently regulate the amount of PFAS
contained in recycled biosolids and has not established a biosolids leaching
standard. Indeed, the lack of research on how PFAS in biosolids may
impact groundwater, as Ms. Connelly acknowledges, App. IV, 53, will
hinder any future rulemaking effort to regulate land application of
biosolids. Accordingly, any regulatory interference with RMI’s ability to
5 The direct contact standard referenced by Ms. Connelly is measured inparts per billion (“ppb”). In comparison to the MCL and AGQS standards,which are in the 11-18 parts per trillion (“ppt”) range, a standard of 500ppb is the equivalent of 500,000 ppt.
23
operate necessarily can occur only well into the future (after additional
rulemaking) and is, therefore, not an immediate or imminent harm.
The affidavits submitted by Plymouth Water District and Mr.
Hanson are similarly unhelpful to Plaintiffs’ case.6 In his affidavit, Jason
Randall, District Supervisor of the Plymouth Water District, noted the
District’s concern that “[u]nder the new rules it is possible that biosolids
may no longer be considered viable for use as fertilizer by NHDES,” in
which case Plymouth Water District would be “required to further treat the
wastewater sludge/solids and then pay … to dispose of it.” App. IV, 39
(emphasis added). Similar to RMI’s affidavit, Mr. Randall expresses only
fear of the possibility of future impacts.
Mr. Hanson relies on fear of future regulation rather than direct
impacts of the currently challenged rules. He states in his affidavit that “it
is uncertain as to whether the biosolids will be allowed to be continued for
use in NH,” potentially causing Mr. Hanson to “be required to seek more
expensive alternatives for use as fertilizer.” Id. at 45 (emphasis added).
Mr. Hanson’s uncertainty about possible future regulation of biosolids does
not establish probable or imminent harm from the currently challenged
rules.
Finally, to the extent Plaintiffs suggest that concerns of future
regulation by NHDES are currently causing harm in the form of higher
6 Although Plaintiffs argue in their brief that harm is “probable” or “likely,”the language used in the affidavits relied upon by Plaintiffs is distinctlyspeculative.
24
prices for the disposal or purchase of biosolids, such harm is not the result
of the challenged rules. Fear of an uncertain future regulatory standard for
land application of biosolids, not the particular level of the challenged MCL
and AGQS, is the source of Plaintiffs’ alleged harm. Such fear of the
possibility of future harm is insufficient to support the extraordinary
remedy of a preliminary injunction.
3. Testing Costs are Unsubstantiated
Plaintiffs’ final alleged harm is the cost of quarterly testing at public
water systems subject to the MCLs. This alleged harm applies to only two
of the plaintiffs—Plymouth Water District and 3M—and is inapplicable to
RMI or Mr. Hanson. While Plaintiffs are correct that quarterly testing is
required, they have failed to demonstrate any immediate harm arising from
such obligation.
As set forth in the State’s Opening Brief, Plymouth Water District is
protected from any penalty for non-compliance during the pendency of the
case pursuant to RSA 31:3-a. State’s Brief at 34. Yet, Plymouth Water
District apparently argues against its own immunity, suggesting that RSA
31:3-a “does not insulate [Plymouth Water District] from monitoring
costs—it only prevents NHDES from imposing a penalty, which is an
additional cost.” Plaintiffs’ Brief at 43 (emphasis in original). This is a
distinction without a difference for purposes of harm in the context of a
preliminary injunction. Simply stated, if the District cannot be penalized
for noncompliance, it need not comply. Moreover, the only entities that
could take any action against Plymouth Water District—NHDES and the
N.H. Dept. of Justice—are on record in this case disclaiming any right to do
25
so during the pendency of this case. Thus, the statute already provides
Plymouth Water District with the relief it seeks.
With the Plymouth Water District insulated from any immediate
harm, the only plaintiff subject to quarterly testing costs is 3M. As set out
in the State’s Opening Brief, however, 3M did not submit an affidavit
substantiating any costs incurred from the challenged rules and is,
therefore, not entitled to a preliminary injunction pursuant to Superior
Court Rule 11(b). While there is no dispute that 3M is subject to quarterly
testing, in the absence of an affidavit there was no evidence before the trial
court that 3M actually incurs any costs as a result of its testing obligation.
As stated previously, 3M already tests for all of the PFAS substances
at issue in this case due to its Groundwater Discharge Permit (“GDP”).
State’s Brief at 17. 3M may already include the water system testing in its
suite of GDP testing, or the marginal cost of including another sample may
be de minimis. Similarly, the State suspects 3M may have its own internal
laboratory, in which case 3M may not incur any additional cost or may
have to extrapolate a cost that is purely speculative. The investigation into
such issues never began because 3M never made such a claim. To the
extent the State has sought any discovery about harm, including testing
costs, 3M has vehemently resisted such efforts. App. Vol. IV, 375–82.
In short, 3M has never alleged in an affidavit that it will spend one
additional dollar on PFAS testing due to the challenged rules. In fact, in its
opening brief 3M stops short of alleging it actually incurs testing costs,
instead merely asserting a “testing requirement.” Plaintiffs’ Brief at 42,
n.3. On such a record, 3M’s alleged testing costs are purely speculative.
Absent verified facts to substantiate immediate, irreparable harm, 3M is not
26
entitled to a preliminary injunction. See Conservation Law Found. v. U.S.
Army Corps of Engineers, No. 19-CV-868-JL, 2019 WL 7596288, at *21
(D.N.H. Oct. 12, 2019) (“The burden of demonstrating that a denial of
interim relief is likely to cause irreparable harm rests squarely upon the
movant.”).
In any case, even if 3M incurs testing costs, the available evidence
shows that testing in an external lab would only cost approximately $300
per sample, a level even the trial court stated would not qualify as
“irreparable.” App. IV, 201 [Oct. 18 Tr., 60]. Indeed, when weighed
against the public interest in protecting the health and safety of the citizens
of New Hampshire, such nominal monetary harm cannot justify a
preliminary injunction of the challenged rules. See Kukene v. Genualdo,
145 N.H. 1, 4 (2000) (“[I]njunctive relief is an equitable remedy, requiring
the trial court to consider the circumstances of the case and balance the
harm to each party if relief were granted.”).
III. The Trial Court Erred by Finding a Likelihood of Success on theMerits Where the Plain Language of RSA 485:3 Does NotRequire a Formal Cost-Benefit Analysis
In addition to overlooking the absence of particularized, probable
and immediate harm, the trial court erred in finding a likelihood of success
on the merits by erroneously interpreting RSA 485:3 as requiring more than
“consideration” of costs and benefits. The fundamental flaw in the trial
court’s analysis was to read words into RSA 485:3 that the legislature did
not see fit to include in the statute. When construing statutes, courts “can
neither ignore the plain language of the legislation nor add words which the
27
lawmakers did not see fit to include,” and when “a statute’s language is
plain and unambiguous,” the reviewing court “need not look beyond [the
words of the statute] for further indications of legislative intent.” In re
Garrison Place Real Estate Inv. Tr., 159 N.H. 539, 542 (2009) (citations
and quotations omitted).
The trial court improperly went beyond the plain language of the
statute and inserted its own assumption that the Legislature must have
intended to require a formal cost-benefit analysis when it mandated that
NHDES give “consideration” to “the costs and benefits to affected parties
that will result from” the challenged MCLs. RSA 485:3, I(b). As set forth
in the State’s Opening Brief, the words “cost-benefit analysis” do not
appear in RSA 485:3, I(b), and courts have consistently held that when the
legislature intends to require a cost-benefit analysis, it clearly states it in the
text of the statute. State’s Brief at 41–44 (discussing relevant cases).
As Plaintiffs acknowledge, “‘consideration’ means ‘continuous and
careful thought’ and to ‘think carefully about something, typically before
making a decision.’” Plaintiffs’ Brief at 28 (quoting Merriam-
webster.com/dictionary/consideration). This is precisely what NHDES
did—carefully considered the best estimates of costs and benefits of the
proposed MCLs before issuing a final proposal. State’s Brief at 20–28.
Plaintiffs, however, go one step further and assert that “consideration” or
“careful thought” must be read as requiring NHDES to perform a formal
cost-benefit analysis, i.e., a quantitative analysis weighing the costs of the
rules against the benefits. Id. at 29–30.
In support of this assertion, Plaintiffs rely on a single federal case—
Am. Min. Cong. v. Thomas, 772 F.2d 617 (10th Cir. 1985). Plaintiffs’ Brief
28
at 28. Plaintiffs’ reliance on Thomas is misplaced. In Thomas, the 10th
Circuit did not rely on the plain statutory language but instead found
legislative history dispositive. Specifically, it relied on language in the
House Conference Report. The court, citing to this report, stated:
The topic sentence of the next paragraph states … that “[t]heconferees are of the view that the economic and environmentalcosts associated with standards and requirements establishedby the agencies should bear a reasonable relationship to thebenefits expected to be derived.” This language, in the contextof the entire legislative history of the 1982 amendments …convinces us that Congress intended cost-benefit analysis, butless strict than an optimized cost–benefit analysis.
Am. Min. Cong. v. Thomas, 772 F.2d 617, 632 (10th Cir. 1985) (emphasis
added) (internal citations omitted) (citing House Conf. Rep. No. 884, 97th
Cong., 2d Sess. 47, reprinted in 1982 U.S. Code Cong. & Ad. News 3592,
3617. No such legislative history exists in this case, nor is legislative
history relevant in the face of an unambiguous statute.
In the absence of a statutory mandate to perform a cost-benefit
analysis or to weigh the costs against the benefits, the remainder of
Plaintiffs’ arguments are without merit. For example, Plaintiffs contend
NHDES performed a flawed analysis of the balance between costs and
benefits. Plaintiffs’ Brief at 34. However, if no cost-benefit analysis was
required, NHDES cannot have violated RSA 485:3 by performing an
allegedly flawed analysis. Plaintiffs rely on Nat’l Ass’n of Home Builders
v. E.P.A., 682 F.3d 1032, 1039–40 (D.C. Cir. 2012) in support of this
proposition, but Home Builders actually supports the State’s position.
29
In Home Builders, the D.C. Circuit Court interpreted a provision of
the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2601(c), that
“expressly requires the Administrator to consider the economic
consequences of action taken under the Act.” Home Builders, 682 F.3d at
1039 (citations and quotations omitted) (emphasis added). The Court held
that the requirement to “consider” costs did not create a “statutory duty to
demonstrate that the benefits of the amended rule outweigh the costs.” Id.
(citing Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 570–71 (D.C.Cir.2002)
(noting that although the Clean Water Act “requires that, when setting [new
source performance standards], the [EPA] Administrator must take costs
into consideration,” it “does not require that she conduct a cost-benefit
analysis”) (alterations in original).
Ultimately, the Home Builders court did find that when an agency
voluntarily decides to base its rule on a cost-benefit analysis, such analysis
cannot be seriously flawed:
Notwithstanding the absence of a statutory duty, EPA didundertake a cost-benefit analysis before promulgating theAmended Renovation Rule—an analysis that it concludedsupported eliminating the opt-out provision. And when anagency decides to rely on a cost-benefit analysis as part of itsrulemaking, a serious flaw undermining that analysis canrender the rule unreasonable.
Home Builders, 682 F.3d at 1039–40 (emphasis added). By contrast,
NHDES, lacking any statutory mandate, never conducted a cost-benefit
analysis to support its rulemaking. Instead, NHDES followed the statutory
direction and carefully considered the costs and benefits of the proposed
30
rules. Home Builders supports the State’s position that a statutory
requirement to “consider” costs and benefits does not mandate a formal
“cost-benefit analysis.”
Finally, both Plaintiffs and the Amici suggest that because “there was
no deadline for [NHDES] to complete its rulemaking,” NHDES should
have “taken the time to perform the required analysis rather than rush
through the process.” Plaintiffs’ Brief at 27. See also NEBRA Brief at 28–
30. Setting aside the above analysis showing that a formal cost-benefit
analysis was not required, Plaintiffs’ assertion regarding the timeframes
established in SB 309 is incorrect.
SB 309 required NHDES to “initiate rulemaking in accordance with
RSA 541-A to adopt” PFAS MCLs by January 1, 2019. RSA 485:16-e
(emphasis added); see also RSA 485-C:6, V, VI (requiring NHDES to
“initiate rulemaking” for AGQS). Pursuant to RSA 541-A:3, in order to
“initiate rulemaking,” NHDES was required to file “notice of the proposed
rule under RSA 541-A:6,” and file “the text of a proposed rule under RSA
541-A:10.” The initiation of rulemaking necessarily requires an agency to
first develop a fully-formed proposed rule, which can occur only “after
consideration” of the cost and benefits. RSA 485:3, I(b) (emphasis added).
Accordingly, NHDES could not have taken additional time to perform
additional analysis and still initiated rulemaking by January 1, 2019.
Plaintiffs’ attempt to imply lack of diligence by NHDES is unpersuasive.
31
IV. Establishment of an AGQS under RSA 485-C:6 Is Not SolelyDependent on Establishment of an MCL under RSA 485:3
It is incontrovertible that the plain language of RSA 485-C:6
includes no requirement that NHDES consider costs and benefits when
adopting an AGQS. Yet, Plaintiffs argue that an AGQS is solely dependent
on the establishment of an MCL. Plaintiffs’ legal and logical analysis is
flawed. First, as set out above, no cost-benefit analysis was required for
NHDES to set the MCLs, and therefore, the lack of a cost-benefit analysis
cannot be the legal basis to invalidate the AGQS.
Second, even assuming NHDES’s consideration of costs and
benefits was legally insufficient, there can be no dispute that NHDES has
the authority to establish an AGQS independent from the adoption of an
MCL. The language in RSA 485-C:6 mandating that the Commissioner
“shall establish and adopt [AGQS] for regulated contaminants which
adversely affect human health or the environment,” is not qualified with
mention of first establishing an MCL or considering costs and benefits.
RSA 485-C:6. Legislative intent is interpreted “from the statute as written
and [the courts] will not consider what the legislature might have said or
add language that the legislature did not see fit to include.” Petition of
Carrier, 165 N.H. 719, 721 (2013). Here, the Legislature did not see fit to
include the consideration of costs and benefits in RSA 485-C:6 when it
added that same language to RSA 485:3, I(b). Had it intended NHDES to
consider costs and benefits when adopting an AGQS, it would have inserted
the same language in RSA 485-C:6.
Plaintiffs point to the requirement that “[w]here state [MCLs] have
been adopted under RSA 485:3, I(b), [AGQS] shall be equivalent to such
32
standards,” RSA 485-C:6, arguing that an AGQS cannot stand where a
related MCL is invalidated. Plaintiffs’ Brief at 39. But nothing in the
language of either statute supports Plaintiffs’ position. To the contrary, by
statute MCLs and AGQS exist independent of one another even when they
are numerically equivalent. MCLs and AGQS serve different purposes
under different statutes and this statutory structure indicates the
Legislature’s intent that each standard should stand on its own.
Plaintiffs attempt to support their position by asserting that all
sections of SB 309 must be read together, referencing the familiar canon of
statutory construction that “courts construe all parts of the statute together
to effectuate its overall purpose.” Plaintiffs’ Brief at 40 (quoting Maplevale
Builders, LLC v. Town of Danville, 165 N.H. 99, 102 (2013)). However,
Plaintiffs argue for a greatly expanded application of this canon by
applying it to a legislative bill that included changes to numerous different
statutes. Such an approach would require courts to attempt to infer a
common purpose to legislation that often covers many different topics
across disparate statutory chapters. There is no legal support for such an
rule of interpretation.
Plaintiffs’ attempt to use logic statements to support their position
also falls short. Plaintiffs offer a version of the classic conditional
statement: “If B depends solely on A, and A is invalid, B is necessarily
invalid too.” Plaintiffs’ Brief at 39. However, Plaintiffs’ logic statement is
based on an incorrect assertion that “B depends solely on A.” As set out
above, an AGQS does not depend solely on adoption of an MCL. Indeed,
NHDES adopted the PFAS AGQS in a separate rulemaking from the MCL,
App. Vol. IV, 348–58, something that NHDES was authorized to do even
33
in the absence of the MCL rulemaking.
Finally, Plaintiffs suggest that a smattering of statements by
NHDES, cherry-picked from the record, establish an administrative gloss
that RSA 485-C:6 requires consideration of costs and benefits for the
adoption of an AGQS. Plaintiffs’ Brief at 40–41. The doctrine of
administrative gloss is inapplicable here. “Administrative gloss is a rule of
statutory construction … placed upon an ambiguous clause when those
responsible for its implementation interpret the clause in a consistent
manner and apply it to similarly situated applicants over a period of years
without legislative interference.” In re Kalar, 162 N.H. 314, 321 (2011)
(emphasis added). Here, the statutory language at issue is less than two
years old and has been implemented only once by NHDES. Moreover, as
set forth above, NHDES does not interpret RSA 485:3, I(b) to require a
cost-benefit analysis. Thus, it cannot reasonably be found that NHDES has
“consistently” interpreted RSA 485-C:6 to require a cost-benefit analysis.
V. The Trial Court Did Not Abuse Its Discretion By Denying aPreliminary Injunction Based on an Alleged Unfunded Mandatein Violation of Part I, Art. 28-a of the New HampshireConstitution or RSA 541-A:25
On cross-appeal, the Plymouth Water District challenges the trial
court’s denial of a preliminary injunction based on an alleged unfunded
mandate under Article 28-a of the New Hampshire Constitution or,
alternatively, under RSA 541-A:25. As explained below, the Court need
not reach the legal merits of the unfunded mandate claims on the current
interlocutory appeal, and even if it does, the Court should decline the
34
Plymouth Water District’s request to overrule its decision in City of
Concord v. State, 164 N.H. 130 (2012).
A. In the Absence of a Showing of Immediate Harm, PlymouthWater District is Not Entitled to a Preliminary Injunction
At the outset, this is an interlocutory appeal of the denial of a
preliminary injunction. At this stage of the case, the trial court has found
that Plymouth Water District is not likely to succeed on the merits of its
unfunded mandate claims. Order, 23 [Add. 70]. The trial court has made
no final decision on the merits of the unfunded mandate claim.
More importantly, while it is undisputed that the challenged rules
will have a significant cumulative effect on municipalities around the state,
the trial court has not found any facts to establish that Plymouth Water
District is likely to suffer any immediate harm that would justify the
extraordinary remedy of a preliminary injunction. Indeed, as set out above,
Plymouth Water District is already insulated from any penalties related to
the challenged rules during the pendency of this case pursuant to RSA 31:3-
a.
More specifically, the record evidence demonstrates that Plymouth
Water District has already voluntarily sampled its water system with no
detection of regulated PFAS at levels below the challenged MCLs. Supra,
18–19. Moreover, there has been no discovery or fact finding by the trial
court on whether Plymouth Water District has already budgeted the cost of
quarterly testing—the only short-term costs associated with the challenged
rules. Simply put, the lack of a factual record of probable, imminent harm
35
to Plymouth Water District precludes the grant of a preliminary injunction,
regardless of whether the challenged rules constitute an unfunded mandate.
On this posture, the Court need not revisit the difficult exercise of
“reconciling [the Court’s] cases elucidating the meaning of Article 28–a”
that was completed in City of Concord. 164 N.H. at 140. Such analysis
can be undertaken, if necessary, after a final decision on the merits below.
B. The Trial Court Properly Applied the City of ConcordAnalysis to Find No Unfunded Mandate
Pursuant to Article 28-a of the New Hampshire Constitution:
The state shall not mandate or assign any new, expanded ormodified programs or responsibilities to any politicalsubdivision in such a way as to necessitate additional localexpenditures by the political subdivision unless such programsor responsibilities are fully funded by the state or unless suchprograms or responsibilities are approved for funding by a voteof the local legislative body of the political subdivision.
N.H. CONST. pt. I, art. 28-a. In the 2012 City of Concord decision, this
Court conducted a detailed review of its Article 28-a precedent and held
that a violation of Article 28-a occurs only when “four elements” are
present: “(1) the State must mandate or assign to a local subdivision (2) a
program or responsibility (3) that is new, expanded or modified from what
existed before the state action, and which (4) necessitates additional
expenditures by the local subdivision.” City of Concord v. State, 164 N.H.
130, 140 (2012), as modified on reconsideration (Sept. 28, 2012) (emphasis
in original).
36
Building on its own experience with the City of Concord case, the
trial court performed a careful analysis of Plymouth Water District’s Article
28-a claim. After noting that Plymouth Water District has been subject to
the Safe Drinking Water Act, RSA chapter 485, and its predecessor RSA
148-B, since before ratification of Article 28-a, the trial court found the
District had a pre-existing obligation to test and treat its water system for
harmful contaminants.7 Order, 7 [Add. 54]. Finding that “while the testing
required by the new rule may be more expensive, testing was already
required,” the trial court held that “[n]o new responsibility has been
imposed upon the Plymouth Water District.” Id. In other words, the
Plymouth Water District fell short on the third required element of an
Article 28-a violation.
In addition, the trial court determined that “Plymouth Village is not
required to operate any water system,” meaning that there is no State
mandate, and Plymouth Water District cannot meet the first element of an
unfunded mandate. Indeed, there is no requirement that towns or village
districts operate water systems, a service that is increasingly provided by
private enterprise. Even where Plymouth Water District’s express function
7 Indeed, pursuant to RSA 485:4, Plymouth Water District was alreadysubject to NHDES authority to mandate “the application of any treatmentor improvement in conditions and methods as it may deem necessary toinsure fitness and safety and adequate protection of the public health.”RSA 485:4, I (applicable to any “municipality, corporation, or person” thatoperates a public water source). Thus, Plymouth Water District had apreexisting obligation to treat its water for any contaminant determined byNHDES to threaten public health.
37
is to operate a water and sewer system, nothing in the rules precludes the
District voters from dissolving the District and disposing of the water
system assets. See RSA 52:21 (“Any village district and any district now in
existence having the rights and powers of a village district, may, at an
annual meeting, by a 2/3 vote of its legal voters, terminate its existence and
dispose of its corporate property.”). Accordingly, Plymouth Water District
also failed to establish the first element of an Article 28-a violation.8
Plaintiffs offer little to refute the trial court’s reasoning, merely
asserting that the challenged rules do constitute both a new requirement and
a state mandate. Instead, Plaintiffs suggest that if they cannot satisfy the
four required elements under City of Concord, the Court “may wish to
reconsider that decision.” Plaintiffs’ Brief at 51, n.4. However, an
interlocutory appeal of the denial of a preliminary injunction is hardly the
appropriate venue for the Court to reconsider a recent precedent. See
Alonzi v. Northeast Generation Servs. Co., 156 N.H. 656, 659–60 (2008)
(“The doctrine of stare decisis demands respect in a society governed by the
rule of law, for when governing standards are open to revision in every
case, deciding cases becomes a mere exercise of judicial will with arbitrary
and unpredictable results.”) (quotation omitted). Moreover, Plaintiffs’
failed to brief the four stare decisis factors, providing this Court no grounds
upon which to overrule City of Concord. See Maplevale Builders, 165 N.H.
8 Though not expressed as part of the trial court’s order, as explained inSection V.A, supra, Plymouth Water District also failed to demonstrate thefourth element—that Plymouth Water District will actually incur anyadditional expenditures as a result of the challenged rules.
38
at 105 (“Having failed to brief any of the four stare decisis factors, the
petitioners have not persuaded us that our decision in Van Lunen must be
overruled.”).
The trial court appropriately exercised its discretion to deny
Plymouth Water District’s request for a preliminary injunction on its
Article 28-a claim, and Plaintiffs’ cross appeal should be denied.
C. In the Absence of a State Mandate for a New Program,RSA 541-A:25 Provides No Greater Restriction Than theConstitution
In an effort to clarify that the restriction on unfunded mandates
applies to new or expanded programs mandated by administrative agencies
through rulemaking, the Legislature passed RSA 541-A:25 in 1994.
Paragraph I of the statute restates the language of Article 28-a prohibiting
the mandate of “any new, expanded, or modified programs or
responsibilities” that “necessitate further expenditures”, then adds the
following additional clarifying language:
Such programs include those functions of a nature customarilyundertaken by municipalities whether or not performance ofsuch functions is required by statute.
RSA 541-A:25, I. The statute includes “sewer and water” as “programs”
and includes in the “scope and nature of such programs … those functions
which a municipality may legally choose not to undertake.” RSA 541-
A:25, II, III.
The trial court found that it was “not clear that the provisions of the
APA itself, RSA 541-A:25, require a different analysis,” because the
39
“legislative branch cannot add to or detract from the meaning of the
Constitution.” Order, 7–8 [Add. 54–55]. Indeed, while RSA 541-A:25
arguably expanded the scope of Article 28-a to municipal functions that a
municipality could “legally choose not to undertake,” it does not change the
principal requirement of a new, modified or expanded program or
responsibility, and the bulk of trial court’s Article 28-a analysis applies
equally to the RSA 541-A:25 claim.
In particular, the trial court’s finding that the challenged rules do not
mandate a new or expanded program is equally dispositive of Plymouth
Water District’s RSA 541-A:25 claim. Because Plymouth Water District
was already required by statute to test and treat for harmful contaminants
before the adoption of RSA 541-A:25, there is no new, expanded or
modified program or responsibility mandated by the challenged MCL. This
holds true even to the extent RSA 541-A:25 applies to “water and sewer”
functions that the District “may legally choose not to undertake.” RSA
541-A:25. Accordingly, the trial court did not abuse its discretion in
declining to grant a preliminary injunction on Plymouth Water District’s
RSA 541-A:25 claim.
VI. The Trial Court Did Not Abuse Its Discretion by Denying aPreliminary Injunction for Alleged Violations of APA Noticeand Comment Requirements
Plaintiffs’ final claim argues that NHDES violated the notice and
comment requirements of the New Hampshire Administrative Procedures
Act, RSA chapter 541-A (the “APA”), when NHDES issued a final
proposal in the rulemaking process that included more stringent proposed
40
MCLs and AGQS than the initial proposal. Looking to the “relatively
robust body of law surrounding notice of administrative rules under the
federal APA” for guidance,9 the trial court engaged in a two-step analysis to
“determine what information was disclosed to the public,” and whether the
“final rule was a ‘logical outgrowth’ of the proposed rule.” Order, 9–10
[Add. 56–57].
After a detailed analysis of the record and the case law, the trial
court concluded that “the final rule promulgated by DES was a logical
outgrowth of its notice and comment rulemaking.” Id. at 15 [Add. 62]. In
reaching this conclusion, the trial court found NHDES “specifically alerted
the public that it considered lowering PFAS standards” and provided a
second notice to the public “that new evidence … had surfaced,” and would
be relied upon by NHDES. Id. at 15–16 [Add. 62–63]. Moreover, the trial
court found NHDES “provided the public a series of technical studies and
data, including a link to a Minnesota study that at least referenced the new
assessment tool DES initially relied on in revising its standards,” thereby
giving Plaintiffs and the public an opportunity to “provide comment on the
potentially lowered standards or the underlying scientific data” prior to
issuance of the final proposal. Id. at 16–17 [Add. 63–64].
9 Contrary to the Plaintiffs assertion that “NHDES did not contest that thelogical outgrowth rule applies to rulemaking under New Hampshire law,”Plaintiffs’ Brief at 55, the State has not, and does not, agree that federalprecedent is controlling on the state APA. Rather, the State asserted thatstate and federal requirements differ sharply, but argued that even federalprecedent supports the State’s position. Vol. IV, 198, 233 [Oct. 18 Tr., 57,92].
41
As outlined by the trial court, NHDES’ rulemaking satisfied the
requirements of the APA that the public have adequate notice and an
opportunity to comment on the proposed rules. See RSA 541-A:6
(requiring notice of proposed rules including a “concise summary”); RSA
541-A:10 (requiring publishing of the text of proposed rules); and RSA
541-A:11, I(a) (requiring public opportunity to testify and/or submit written
comments).
Plaintiffs complain that “the final rules are markedly different from
the initial proposal,” and argue Plaintiffs had inadequate notice and no
opportunity to comment on the final proposal. Plaintiffs’ Brief at 55–57.
However, the record demonstrates, and the trial court expressly found, that
NHDES did provide adequate notice of both the likelihood that the final
proposal could be “lowered significantly below the initial proposal” and the
new data and assessment tool that were driving the change. App. Vol. III,
47–49; Order, 16 [Add. 63]. This notice was published on February 21,
2019, well in advance of the public hearings held on March 4, 5, and 12,
2019, and more than seven weeks before the April 12, 2019 public
comment deadline. Order, 12 [Add. 59]. Accordingly, it is no surprise that
NHDES received numerous comments, including from 3M, directed
specifically to the assessment tool relied on by NHDES in setting the final
MCLs. Id. at 16 [Add. 63]; App. Vol. III, 243–303.
At its core, Plaintiffs’ complaint is not that they had inadequate
notice that the final standards would be “lowered significantly below the
initial proposal” or that NHDES would rely on emerging studies including
the Minnesota assessment tool, but that they were surprised by “how much
lower” the final standards were and had no opportunity to comment on the
42
specific final MCLs. Plaintiffs’ Brief at 56–57. As the trial court held,
even under the federal “logical outgrowth” analysis, the rulemaking was
proper “because further lowering PFAS standards is hardly a divergence
with ‘no roots’ in a proposed notice that itself lowers those standards.”
Order, 18 [Add. 64]. Here, NHDES responded to public comments, new
data, and a new assessment tool, after adequate notice, and arrived at an
appropriate final rulemaking proposal on exactly the same topic as the
initial proposal. This is precisely the process contemplated by the APA,
and the trial court did not abuse its discretion in denying a preliminary
injunction.
CONCLUSION
For the foregoing reasons, the trial court erred by granting a
preliminary injunction where there was no showing of probable and
immediate harm by the Plaintiffs and where RSA 485:3 does not require a
formal cost-benefit analysis. The State requests that this Honorable Court
reverse the trial court’s grant of a preliminary injunction, deny Plaintiffs’
request for a preliminary injunction on other grounds, and remand the case
for further proceedings consistent with its order.
The State requests a 15-minute oral argument. Attorney Aslin will
argue for the State. Copies of the written decisions appealed from are
included in the addendum to the State’s Opening Brief.
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Respectfully submitted,
THE STATE OF NEW HAMPSHIRE
By its attorney,
GORDON J. MACDONALDATTORNEY GENERAL
Dated: June 29, 2020 /s/ Christopher G. AslinK. Allen Brooks, Bar No. 16424Senior Assistant Attorney GeneralChief, Environmental Protection BureauChristopher G. Aslin, Bar No. 18285Senior Assistant Attorney GeneralOffice of the Attorney General33 Capitol StreetConcord, N.H. 03301-6397(603) 271-3679
CERTIFICATE OF COMPLIANCE
This brief complies with the word limitation set out in Supreme
Court Rule 16(11), and contains 9,492 words.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the State’s Answering Brief shall be
served on all counsel of record through the New Hampshire Supreme
Court’s electronic filing system.
/s/ Christopher G. AslinChristopher G. Aslin, Esq.
44
ADDENDUM
Table of Contents Page
Parties’ Undisputed Chronology of NHDES PFOA, PFOA, PFNS,and PFHxS Rulemaking (Oct. 16, 2019) ……………………………….. 45
1
THE STATE OF NEW HAMPSHIRE
MERRIMACK, SS SUPERIOR COURT
DOCKET NO. Case No. 217-2019-CV-00650
THE PLYMOUTH VILLAGE WATER & SEWER DISTRICT, RESOURCE MANAGEMENT, INC., CHARLES G. HANSON, and 3M COMPANY
Plaintiffs v.
ROBERT R. SCOTT, AS COMMISSIONER OF THE NEW HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SERVICES
Defendant
Parties’ Undisputed Chronology of NHDES PFOA, PFOA, PFNS, and PFHxS Rulemaking
1. May 31, 2016 – In an emergency rule, New Hampshire Department of EnvironmentalServices (“NHDES”) adopts the U.S. Environmental Protection Agency’s 2016 “HealthAdvisory” limits: (1) 70 ppt for PFOA; (2) 70 ppt for PFOS; and (3) 70 ppt for PFOSand PFOA combined, as Ambient Groundwater Quality Standards (“AGQS”).
2. July 10, 2018 – Governor Chris Sununu signs SB 309 (2018), directing NHDES toconduct rulemaking related to PFOA, PFOS, PFNA, and PFHxS substances (“PFAS”).SB 309 does not contain a time limit for completion of the rulemaking.
3. October 16, 18, and 19, 2018 - NHDES holds technical work sessions in Litchfield,Portsmouth, and Concord to inform stakeholders of NHDES’ process for derivingMaximum Contaminant Levels (“MCLs”) for PFAS and to receive technical information,recommendations, and technical comments from interested stakeholders. The worksessions were open to the public.
4. January 2, 2019 – NHDES publishes notice of proposed rulemaking to establish numericMCLs (drinking water standards) and AGQS for PFOA (38 ppt), PFOS (70 ppt), PFHxS(85 ppt), PFNA (23 ppt) (“Proposed Rules”), and sets a schedule for public hearing andcomment.
5. January 4, 2019 – NHDES published a “Summary Report” about the Proposed Rules.The Summary Report discussed, among other things, estimated costs and benefits of theProposed Rules, the feasibility of water treatment for PFAS, and the risk assessmentmethodology used to arrive at the Proposed Rules.
6. January 24, 2019 – Notices of the Proposed Rules published in the New HampshireRulemaking Register.
FiledFile Date: 10/16/2019 8:24 PM
Merrimack Superior CourtE-Filed Document
45
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7. February 21, 2019 – NHDES issues a Press Release entitled “New Information May Change NHDES Proposed PFAS Drinking Water Standards.”NHDES referenced a “new assessment tool developed by the Minnesota Department of Health.” NHDES stated the levels for PFOA and PFOS “would potentially be lowered significantly below the initial proposal.” NHDES did not identify new numeric levels. NHDES stated it was “continuing to review the suitability of this assessment tool for PFHxS and PFNA.”
8. March 4, 2019 – Public hearing regarding Proposed Rules at Merrimack Town Hall.
9. March 5, 2019 - Public hearing regarding Proposed Rules at Concord NHDES facility.
10. March 12, 2019 – Public hearing regarding Proposed Rules at NHDES Pease Field Office, Portsmouth.
11. April 12, 2019 – NHDES deadline to submit written comments regarding the Proposed Rules.
12. June 28, 2019 – NHDES publishes “Final Proposed Rules” with lower numeric levels: PFOA (12 ppt), PFOS (15 ppt), PFHxS (18 ppt), PFNA (11 ppt). NHDES did not solicit public comment on the Final Proposed Rules. NHDES announced the effective date as October 1, 2019. NHDES released a four-page cost-benefits presentation.
13. The following chart compares the limits in the Proposed Rules versus the Final Rules:
PFOA PFOS PFOS/PFOA (combined)
PFNA PFHxS
Proposed 38 ppt 70 ppt 70 ppt 23 ppt 85 ppt
Final 12 ppt 15 ppt N/A 11 ppt 18 ppt
14. July 18, 2019 – Joint Legislative Committee on Administrative Rules (“JLCAR”) Hearing. JLCAR approved the Final Rules without taking any public comment.
15. July 24, 2019 – NHDES sends adoption letters to the Office of Legislative Services changing the effective date for the Final Rules to September 30, 2019.
16. September 30, 2019 –Final Rules go into effect.
17. September 30, 2019 – Plaintiffs file suit against NHDES to enjoin Final Rules.
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Respectfully submitted,
3M COMPANY By their Attorneys,
McLANE MIDDLETON PROFESSIONAL ASSOCIATION
Dated: October 16, 2019 By: /s/ Mark C. RouvalisMark C. Rouvalis, NH Bar # 6565 [email protected] Joseph A. Foster, NH Bar # 838 [email protected] Michael J. Quinn, NH Bar # 5584 [email protected] 900 Elm Street, P.O. Box 326 Manchester, New Hampshire 03105-0326 Telephone: (603) 625-6464
Dated: October 16, 2019 By:
BEVERIDGE & DIAMOND
/s/ Nessa Horewitch Coppinger Nessa Horewitch Coppinger (Pro Hac Vice) D.C. Bar #477467 [email protected] 1350 I Street, NW, Suite 700 Washington, DC 20005 Telephone: (202) 789-6053
Dated: October 16, 2019 By:
Respectfully submitted,
THE PLYMOUTH VILLAGE WATER & SEWER DISTRICT, RESOURCE MANAGEMENT, INC., AND CHARLES G. HANSON
By their Attorneys, PASTORI|KRANS, PLLC
/s/ Terri L. Pastori Terri L. Pastori, NH Bar #12136 [email protected] Beth A. Deragon, NH Bar #16347 [email protected] 70 Commercial Street, Suite 203 Concord, NH 03301 (603) 369-4769
47
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Respectfully submitted,
THE STATE OF NEW HAMPSHIRE
By its Attorney GORDON J. MACDONALD ATTORNEY GENERAL
Dated: October 16, 2019 /s/ K. Allen BrooksK. Allen Brooks, NH Bar #16424 Senior Assistant Attorney General Christopher G. Aslin, NH Bar #18285 Senior Assistant Attorney General NH Department of Justice 33 Capitol Street Concord, NH 03301-6397 (603) 271-3679
Certificate of Service
I hereby certify that on October 16, 2019, I served the Parties’ Undisputed Chronology of NHDES PFOA, PFOA, PFNS, and PFHxS Rulemaking on counsel for all parties via the Superior Court’s electronic filing system.
/s/ Mark C. Rouvalis Mark C. Rouvalis
48