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After years of investigation, the San Diego Regional Water Quality Control Board (Regional Board), issued a cleanup and abatement order (CAO) to San Diego Gas & Electric Company (SDG&E) and several other entities, in connection with a power plant’s operations that discharged waste into the San Diego Bay. The Regional Board found that SDG&E caused or permitted waste to be discharged into the Bay and thereby created, or threatened to create, pollution and nuisance conditions. SDG&E contested its designation as a responsible "person" under Water Code section 13304 (a), and petitioned for a writ of mandate to have the CAO vacated. The superior court denied the writ. SDG&E argued then, as it did before the Court of Appeal, that shipyard companies comparatively discharged greater amounts of pollutants into the Bay and that two appellate opinions required application of the "substantial factor" causation test to determine whether SDG&E created or threatened to create a condition of pollution or nuisance. The Court of Appeal found it was undisputed that SDG&E directly discharged and thus "caused or permitted" waste to enter the Bay, distinguishing the aforementioned appellate cases. Further, the Regional Board adequately demonstrated that the waste discharged by SDG&E created, or threatened to create, a condition of pollution or nuisance. Accordingly, the Court affirmed the judgment. View "San Diego Gas & Electric Co. v. San Diego Regional Water etc." on Justia Law

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The company wants to mine raw uranium ore from a site near Coles Hill, Virginia. Virginia law completely prohibits uranium mining. The company alleged that, under the Constitution’s Supremacy Clause, the Atomic Energy Act (AEA) preempts state uranium mining laws like Virginia’s and makes the Nuclear Regulatory Commission (NRC) the lone regulator. The district court, the Fourth Circuit, and the Supreme Court rejected the company’s argument. The AEA does not preempt Virginia’s law banning uranium mining; the law grants the NRC extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle except mining, expressly stating that the NRC’s regulatory powers arise only “after [uranium’s] removal from its place of deposit in nature,” 42 U.S.C. 2092. If the federal government wants to control uranium mining on private land, it must purchase or seize the land by eminent domain and make it federal land, indicating that state authority remains untouched. Rejecting “field preemption: and “conflict preemption” arguments, the Court stated that the only thing a court can be sure of is what can be found in the law itself and the compromise that Congress actually struck in the AEA leaves mining regulation on private land to the states. View "Virginia Uranium, Inc. v. Warren" on Justia Law

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The Center for Biological Diversity appealed the denial of its petition for a writ of mandate challenging an environmental impact report (EIR) prepared by the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (Department) pursuant to a law known as Senate Bill No. 4. (Stats. 2013, ch. 313, sec. 2, enacting Sen. Bill No. 4; hereafter, Senate Bill No. 4.) Senate Bill No. 4 added sections 3150 through 3161 to the Public Resources Code to address the need for additional information about the environmental effects of well stimulation treatments such as hydraulic fracturing and acid well stimulation. As relevant here, Senate Bill No. 4 required the Department to prepare an EIR “pursuant to the California Environmental Quality Act ([Public Resources Code] Division 13 (commencing with Section 21000) [CEQA]), to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state.” The Department prepared and certified an EIR. The Center filed a petition for writ of mandate and complaint for declaratory and injunctive relief, challenging the EIR under CEQA and Senate Bill No. 4. The trial court sustained a demurrer to the Center’s cause of action for violations of CEQA, and subsequently denied the petition for a writ of mandate. The Court of Appeal found no reversible error in the denial of mandamus relief and affirmed. View "Center for Biological Diversity v. CA Dept. of Conservation" on Justia Law

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This appeal centered on the distribution of water to water right 95-0734 in the Twin Lakes-Rathdrum Creek Drainage Basin. Sylte Ranch, LLC, was the current claimant on water right 95- 0734, which dated from 1875 and provided natural flow stockwater from Rathdrum Creek. In September 2016, Idaho Department of Water Resources (IDWR) issued a letter of instructions to the local watermaster in response to a complaint that he was releasing storage water from Twin Lakes contrary to a 1989 Final Decree that established all existing rights to Twin Lakes’ surface waters, tributaries, and outlets. These instructions led Sylte to file a Petition for Declaratory Ruling, arguing that IDWR should set aside and reverse the instructions because they improperly limited water right 95-0734 to Twin Lakes’ natural tributary inflow. Twin Lakes Improvement Association, et al., and Twin Lakes Flood Control District intervened in the case. Following cross motions for summary judgment, IDWR issued a Final Order, in which it upheld the instructions and granted intervenors’ motion for summary judgment. Sylte then sought judicial review and the district court affirmed IDWR’s Final Order. Sylte timely appealed to the Idaho Supreme Court. The Supreme Court affirmed the district court’s determination to uphold IDWR’s Final Order because the instructions complied with the plain language of the 1989 Final Decree. View "Sylte v. IDWR" on Justia Law

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Sierra Club filed a petition for the Administrator of the EPA to object to a renewal of an operating permit under Title V of the Clean Air Act issued by the State of Utah for the Hunter Power Plant. After the Administrator denied the petition for objection without examining the merits of Sierra Club's claim, Sierra Club sought vacatur and remand. The DC Circuit held that venue was not proper in this court, because the order denying the petition or objection was neither a nationally applicable regulation nor determined by the Administrator to have nationwide scope or effect. Accordingly, the court dismissed the petition for review under section 307(b)(1) of the Clean Air Act. View "Sierra Club v. EPA" on Justia Law

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The Town of Lincoln, New Hampshire, appealed a Water Court order upholding a decision by the Department of Environmental Services (DES) ordering the town to repair the Pemigewasset River Levee. The Water Counsel determined the Town owned the levee pursuant to RSA 482:11-a(2013), and therefore was obligated to maintain and repair the levee. In support of its position, DES contends that, in the Assurance, the Town “agreed to take responsibility for the [l]evee’s ongoing maintenance and repair.”1 However, the fact that the Town undertook certain maintenance obligations in the Assurance does not mean that the additional obligations of “ownership” under RSA 482:11-a can or should be imposed upon the Town. The New Hampshire Supreme Court determined that the Water Council’s conclusion the Town “owned” the levee under RSA 482:11-a was dependent on flawed reasoning that Appeal of Michele, 168 N.H. 98 (2015) controlled the outcome of this case. The Supreme Court concluded the Town met its burden to show the Water Council was unreasonable. The Court did not decide the precise degree of ownership that made a person or entity an “owner” for the purposes of RSA 482:11-a, it held that the limited access easement held by the Town in this case fell short of that threshold. Because the Court’s holding on this issue was dispositive of this case, it declined to address the parties’ other arguments. View "Appeal of Town of Lincoln" on Justia Law

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Petitioners sought review of FERC's decision authorizing the construction and operation of a new natural gas compression facility in Davidson County. The DC Circuit denied the petition and held that FERC did not violate the National Environmental Policy Act (NEPA) by failing to adequately assess alternatives to the proposed action. In this case, the environmental assessment reflected that the Commission considered twelve alternatives and evaluated each with respect to eighteen different environmental factors. Despite the court's misgivings regarding the Commission's decidedly less-than-dogged efforts to obtain the information it says it would need to determine that downstream greenhouse gas emissions qualify as a reasonably foreseeable indirect effect of the project, the court held that petitioners failed to raise this record-development issue in the proceedings before the Commission. Accordingly, the court lacked jurisdiction to decide whether the Commission acted arbitrarily or capriciously and violated NEPA by failing to further develop the record in this case. View "Birckhead v. FERC" on Justia Law

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Sierra Club challenged the EPA's adoption of a final rule modifying its regulations for air monitoring networks. The DC Circuit held that Sierra Club was barred from seeking review of the claimed legal requirement that monitoring plans be assessed under the same procedures as state implemented plans (SIPS) because the new rule and EPA's preamble did no more than echo a prior EPA regulation; Sierra Club lacked standing to attack the sampling frequency changes; and Sierra Club failed to make a showing that the asserted non-response on quality assurance issues manifested any failure to consider factors relevant to the changes. Accordingly, the court dismissed Sierra Club's first two claims and denied the third. View "Sierra Club v. EPA" on Justia Law

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After the DC Circuit held that the Corps violated the National Environmental Policy Act (NEPA) when it issued a permit to the Dominion to construct the Surry-Skiffes Creek-Whealton project and vacated the permit, the Corps and Dominion sought panel rehearing solely on the issue of remedy. Neither petitioner bothered to advise the court that construction on the project had been completed and the transmission lines electrified the week before the court issued its opinion. The court remanded the case to the district court to consider whether vacatur remains the appropriate remedy, including whether petitioners have forfeited or are judicially estopped from now opposing vacatur. View "National Parks Conservation Assoc. v. Semonite" on Justia Law

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The issue presented for the Pennsylvania Supreme Court’s review in this case centered on the question of whether a municipality, in addressing a natural gas extraction company’s conditional use application for the construction and operation of a well site, could consider as evidence the testimony of residents of another municipality regarding the impacts to their health, quality of life, and property which they attribute to a similar facility constructed and operated by the same company in their municipality. After careful review, the Supreme Court held such evidence could be received and considered by a municipality in deciding whether to approve a conditional use application, and, thus, vacated the Commonwealth Court’s order, and remanded this matter to that court, with instructions to remand this matter to the trial court for further consideration. View "EQT Production v. Boro of Jefferson Hills" on Justia Law