Justia Environmental Law Opinion Summaries

The Defendants, Ohana Military Communities, LLC and Forest City Residential Management, began a major housing construction project on Marine Corps Base Hawaii (MCBH) in 2006. MCBH was widely contaminated with pesticides potentially impacting human health. Defendants developed and implemented a Pesticide Soil Management Plan but allegedly never informed residential tenants of the Plan, the decade-long remediation efforts, or known pesticide contamination. Plaintiffs, military servicemember families, filed suit in Hawaii state court alleging 11 different claims under state law. Defendants removed the case to federal court.The Ninth Circuit reversed the denial of the Plaintiffs’ motion to remand. Federal jurisdiction did not exist because, under the Hawaii Admission Act, 73 Stat. 4 (1959), Hawaii had concurrent legislative or political jurisdiction over MCBH, so state law had not been assimilated into federal law. The court rejected an argument that, regardless of any concurrent state jurisdiction, federal jurisdiction exists where federally owned or controlled land is involved, and a substantial federal interest exists. There was no federal officer or agency jurisdiction because there was no causal nexus between the Navy and Ohana under 28 U.S.C. 1442, and Ohana was not a federal agency for purposes of federal jurisdiction. Under the Gunn test, no federal issue was “necessarily raised.” View "Lake v. Ohana Military Communities, LLC" on Justia Law

The Supreme Court dismissed Appellants' appeal from the district court's dismissal of their appeal of a county board's grant of a conditional use permit (CUP) for the development of a commercial wind turbine operation, holding that this Court lacked jurisdiction to hear this appeal.In 2019, the Cherry County Board of Commissioners granted BSH Kilgore, LLC a CUP for the development of a commercial wind turbine operation in Cherry County. Thereafter, the Board granted BSH a four-year extension to build the operation. Appellants filed a "Complaint and Petition on Appeal" challenging the Board's action in granting the extension and asking for a trial de novo. The court dismissed Appellants' appeal, concluding that it lacked jurisdiction because the Board's decision was subject to review only through a petition in error. The Supreme Court dismissed Appellants' subsequent appeal, holding that, under the circumstances, the district court lacked jurisdiction, and therefore, this Court, too, lacked jurisdiction. View "Preserve of the Sandhills, LLC v. Cherry County" on Justia Law

In 2016, Placer County, California (the County) approved a project to develop a resort on about 94 acres near Lake Tahoe. Sierra Watch challenged the County’s approval in two lawsuits, both of which were appealed. In this case, Sierra Watch challenged the County’s environmental review for the project under the California Environmental Quality Act (CEQA). In particular, Sierra Watch contended the County: (1) failed to sufficiently consider Lake Tahoe in its analysis; (2) insufficiently evaluated the project’s impacts on fire evacuation plans for the region; (3) inadequately evaluated and mitigated the project’s noise impacts; (4) failed to allow for sufficient public review of the project’s climate change impacts; (5) failed to consider appropriate mitigation for the project’s climate change impacts; (6) overlooked feasible mitigation options for the project’s traffic impacts; and (7) wrongly relied on deferred mitigation to address the project’s impacts on regional transit. The trial court rejected all Sierra Watch’s arguments. But because the Court of Appeal found some of Sierra Watch’s claims had merit, judgment was reversed. View "Sierra Watch v. County of Placer" on Justia Law

Three appeals against respondent Department of Water Resources all involved litigation related to changes in long-term water supply contracts brought about by the “Monterey Agreement” and “Monterey Amendment.” In the first case, Central Delta Water Agency, et al. (collectively, Central Delta) appealed the trial court’s decision on a petition for writ of mandate challenging the adequacy of the “Monterey Plus” environmental impact report (Monterey Plus EIR) issued in 2010 and the validity of the Monterey Amendment. In the second, Center for Biological Diversity (Biological Diversity) appealed the trial court’s denial of attorney fees incurred in connection with its writ petition against DWR involving the Monterey Plus EIR and Monterey Amendment. In the third case, Center for Food Safety, et al. (collectively, Food Safety) appealed the trial court’s denial of a petition for writ of mandate challenging DWR’s revised environmental impact report on the Monterey Plus project (Revised EIR). Finding no reversible error in any of the three cases, the Court of Appeal affirmed. View "Central Delta Water Agency v. Dept. of Water Resources" on Justia Law

The Supreme Court affirmed the decision of the district court upholding the Broadwater Conservation District's (BCD) declaratory ruling determining that Montana Gulch is a "stream" subject to the regulatory provisions of The Natural Streambed and Land Preservation Act of 1975, Mont. Code Ann. 75-7-103, holding that there was no error.Specifically, the Supreme Court held (1) the BCD and the district court did not err in determining that Montana Gulch could be classified as a "natural, perennial-flowing stream" under the jurisdiction of the Streambed Act upon a finding that it would have flowed perennially without human activity; (2) the BCD properly examined historical evidence when determining whether Montana Gulch would have flowed perennially in the absence of human activity; (3) the BCD's determination that Montana Gulch was under the Streambed Act's jurisdiction was not arbitrary and capricious; and (4) the BCD and the district court did not err in considering subsurface flows in Montana Gulch. View "Fortner v. Broadwater Conservation District" on Justia Law

In the 1930s and 1940s GE designed and manufactured self-propelled, electric passenger railcars that included liquid-cooled transformers. The transformers, which generated a great deal of heat, used a coolant called Pyranol that contains toxic polychlorinated biphenyls (PCBs). GE sold some railcars to government entities whose trains operated on Penn Central lines. Pyranol from the transformers escaped and contaminated four Penn Central rail yards. APU, Penn Central’s successor, had to pay for the costly environmental cleanup and sued GE under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which makes four classes of “[c]overed persons” strictly liable for environmental contamination, 42 U.S.C. 9607(a). APU argued that GE “arranged for disposal” of hazardous PCB because it designed and manufactured transformers with pressure-release valves whose “natural function” was to discharge Pyranol when conditions required, it knew that “[t]he frequency of minor spills [was] large,” it took affirmative steps to direct spills onto the roadbed; and it implemented a fail-and-fix policy for defective transformers rather than recall them.The Sixth Circuit affirmed summary judgment. GE is neither an arranger nor an operator under CERCLA. APU assigned away its contractual right to indemnification; any claims based on reassigned indemnity rights are time-barred. View "American Premier Underwriters, Inc. v. General Electric Co." on Justia Law

In this litigation concerning the future of Mauna Kea, the Supreme Court reversed the order of the circuit court granting in part and denying in part KAHEA: The Hawaiian Environmental Alliance's motion to quash a subpoena with respect to subpoena request numbers five and eight and affirmed the judgment in all other respects, holding that the two subpoena requests were unreasonable.In 2019, the State Attorney General issued a subpoena duces tecum to First Hawaiian Bank commanding the bank to produce eighteen categories of records from KAHEA's accounts. KAHEA moved to quash the subpoena, claiming it was retaliatory harassment brought on by KAHEA's opposition to the construction of an astronomical observatory on Mauna Kea. The circuit court disallowed fifty percent of the subpoena requests. KAHEA appealed, arguing that the entire subpoena should have been quashed. The Supreme Court held (1) the Attorney General's investigatory powers validated the subpoena; (2) KAHEA's First Amendment freedom of speech and retaliation claims failed; and (3) two subpoena requests were unreasonable. View "In re Investigation of KAHEA" on Justia Law

Plaintiff filed suit under the Clean Water Act (CWA), alleging that Corona Clay illegally discharged pollutants into the navigable waters of the United States, failed to monitor that discharge as required by its permit, and violated the conditions of the permit by failing to report violations. The district court granted partial summary judgment to defendants and a jury returned a defense verdict on the remaining claims.The Ninth Circuit disagreed with the district court's interpretation of Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 67 (1987), which held that the CWA bars citizen suits alleging only "wholly past" violations of permits, and held that if the required jurisdictional discharge into United States waters has occurred, a CWA citizen suit can be premised on ongoing or reasonably expected monitoring or reporting violations. The panel vacated the district court's judgment and remanded for further proceedings in light of the Supreme Court's intervening decision in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1468 (2020), which held that an offending discharge must reach the "waters of the United States," either through a direct discharge or a "functional equivalent." View "Inland Empire Waterkeeper v. Corona Clay Co." on Justia Law

Environmental organizations challenged a National Pollutant Discharge Elimination System (NPDES) Permit issued by the EPA for Idaho Concentrated Animal Feeding Operations (CAFOs) under the Clean Water Act. On CAFOs, manure is typically stored in lagoons; waste that leaks from lagoons can reach groundwater that can reach navigable waters. Since the 1970s, the EPA has regulated both CAFO production areas (animal confinement, storage, lagoons) and land-application areas (fields where manure and process wastewater are applied as fertilizer).The Ninth Circuit held that the challenge was timely, rejecting the EPA’s contention that the Permit largely relied on a 2003 Rule. The Permit lacked sufficient monitoring provisions to ensure compliance with the Permit’s “zero discharge” requirements for both production and land-application areas. EPA's discretion in crafting appropriate monitoring requirements for each NPDES permit is not unlimited. The Permit had sufficient monitoring requirements for above-ground discharges from production areas; CAFOs were required to perform daily inspections. The Permit had no monitoring provisions for underground discharges from production areas. While the Permit flatly prohibited discharges from land-application areas during dry weather it had no monitoring provisions, although the record showed that such discharges can occur during irrigation of fertilized CAFO fields. View "Food & Water Watch, Inc. v. United States Environmental Protection Agency" on Justia Law

The Department regulates the use of pesticides, including 1,3-Dichloropropene (1,3-D), which is used in agriculture. Only Dow produces 1,3-D for use in California As a condition of Dow’s continued registration of 1,3-D products, the Department maintains a “township cap program,” which limits the amount of the pesticide that may be used each year to reduce cancer risks to bystanders. Plaintiffs filed a petition for a writ of mandate, claiming that the township cap program was an underground regulation in violation of the Administrative Procedure Act and fails to incorporate recommendations from the California Office of Environmental Health Hazard Assessment as required under the Food and Agriculture Code.The trial court granted summary judgment, declaring the township cap program void and directing the Department to engage in formal rulemaking to replace it. The court of appeal affirmed, agreeing that the program is an underground regulation. A regulation subject to the APA may exist even if the agency never promulgates a written policy setting forth the rule. The fact that Dow happens to be the only registrant of 1,3-D does not mean the Department can informally regulate the pesticide at will while its rules are implemented as conditions of Dow’s registration; the township cap program is a rule of general application. The program governs how 1,3-D will be used, not how the Department will register pesticides, and clearly implements and makes specific the law the Department administers. View "Vasquez v. Department of Pesticide Regulation" on Justia Law