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Language in a 1993 appropriations act does not require the Corps to continue to use a 1987 guidance manual for delineating wetlands under the Clean Water Act. In an action seeking to set aside the Corps' decision for an excavation permit in Alaska, the Ninth Circuit held that the 1993 Budget Act prohibited the Corps from using the 1987 Manual during fiscal year 1993, and Congress included a second paragraph to explain what it expected the Corps to do instead. Accordingly, the panel affirmed the district court's grant of summary judgment for the Corps. View "Tin Cup, LLC v. US Army Corps of Engineers" on Justia Law

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The Supreme Court affirmed the order of the Water Court granting the United States Bureau of Land Management’s (BLM) motion for summary judgment, holding that the Water Court correctly determined that the BLM was the owner of certain stock claims and correctly affirmed other claims for wildlife use. Specifically, the Court held that the Water Court (1) properly determined that Ron and Maxine Korman forfeited interests claimed for stockwater use in the Chevy and Poker Reservoirs; and (2) did not err when it determined that the wildlife claims at issue were valid and did not expand the original appropriation. View "United States Bureau of Land Management v. Korman" on Justia Law

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Francis Bottini, Jr., Nina Bottini, and the Bernate Ticino Trust (the Bottinis) applied to the City of San Diego for a coastal development permit (CDP) to construct a single-family home on a vacant lot in La Jolla. City staff determined that the Bottinis' proposed construction project was categorically exempt from environmental review under the California Environmental Quality Act, but the City Council of San Diego reversed that determination. In reaching its decision, the City Council found that full environmental review was necessary because the Bottinis had removed a 19th century cottage from the lot on which they planned to build their residence shortly before they applied for a CDP. The City had previously voted against designating that cottage as a historical resource, declared that the cottage was a public nuisance, and authorized the Bottinis to demolish the cottage. Nevertheless, after the cottage's demolition, the City Council declared the cottage "historic," concluded that the cottage's demolition must be considered part of the Bottinis' project for purposes of CEQA, and found that there was a reasonable possibility that CEQA's "historical resources" and "unusual circumstances" exceptions applied to the Bottinis' construction project, thus requiring full environmental review. The Bottinis filed a petition for a writ of administrative mandamus seeking to compel the City Council to set aside its decision, as well as a complaint for damages against the City, based on alleged violations of the takings, due process, and equal protection clauses of the California Constitution. The City moved for summary judgment on the Bottinis' constitutional causes of action. The court granted the Bottinis' petition concluding the demolition of the cottage was not a component of the Bottinis' construction project and, as a result, the City Council's determination that the project was not categorically exempt from CEQA review lacked substantial evidentiary support. The court also granted the City's motion for summary judgment on the Bottinis' constitutional claims. Finding no reversible error, the Court of Appeals affirmed the trial court. View "Bottini v. City of San Diego" on Justia Law

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The Ninth Circuit affirmed the district court's judgment for plaintiffs in an action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This case involved Teck Metals' liability for dumping several million tons of industrial waste into the Columbia River. Determining that it had jurisdiction, the panel held that the district court properly awarded the Colville Tribes all investigation expenses as costs of removal, even though many of these activities played double duty supporting both cleanup and litigation efforts; the district court properly awarded the Colville Tribes their attorney's fees, and the panel did not disturb the finding that approximately $4.86 million was a reasonable award in this case; and Teck did not make a sufficient showing to establish that liability for environmental harm to the Site was theoretically capable of apportionment. View "Pakootas v. Teck Cominco Metals, Ltd." on Justia Law

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The Supreme Court denied the writ of mandamus sought by six Columbus electors (Relators) to compel members of the Franklin County Board of Elections (Respondents) to place a proposed city ordinance on the November 6, 2018 ballot, holding that Respondents did not abuse their discretion in excluding the measure from the ballot. If adopted, the proposal would establish a “Community Bill of Rights” related to water, soil, and air protection and prohibit certain oil and gas extraction activities within the City of Columbus. Respondents found that the proposed ordinance was beyond the city’s legislative power because it would create new causes of action. The Supreme Court agreed, holding that Respondents did not abuse their discretion in concluding that the proposed ballot measure was beyond the scope of the city’s legislative power. View "State ex rel. Bolzenius v. Preisse" on Justia Law

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Regional transmission organizations manage the interstate grid for electricity, conduct auctions through which many large generators of electricity sell most or all of their power, and are regulated by the Federal Energy Regulatory Commission (FERC) Illinois subsidizes nuclear generation facilities by granting “zero emission credits,” which generators that use coal or gas to produce power must purchase from the recipients at a price set by the state. Electricity producers and municipalities sued, contending that the price‐adjustment aspect of the system is preempted by the Federal Power Act because it impinges on the FERC’s regulatory authority. They acknowledge that a state may levy a tax on carbon emissions; tax the assets and incomes of power producers; tax revenues to subsidize generators; or create a cap‐and‐trade system requiring every firm that emits carbon to buy credits from firms that emit less carbon. They argued that the zero‐emission‐credit system indirectly regulates the auction by using average auction prices as a component in a formula that affects the credits' cost. The Seventh Circuit affirmed summary judgment for the defendants. Illinois has not engaged in discrimination beyond that required to regulate within its borders. All Illinois carbon‐emitting plants need to buy credits. The subsidy’s recipients are in Illinois. The price effect of the statute is felt wherever the power is used. All power (from inside and outside Illinois) goes for the same price in an interstate auction. The cross‐subsidy among producers may injure investors in carbon‐ releasing plants, but only plants in Illinois. View "Village of Old Mill Creek v. Star" on Justia Law

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Sierra Club filed suit against Dominion under the citizen-suit provision of the Clean Water Act, alleging that Dominion was violating 33 U.S.C. 1311(a), which prohibits the unauthorized "discharge of any pollutant" into navigable waters. The Fourth Circuit held that the landfill and settling ponds on the Chesapeake site of a coal-fired power plant did not constitute "point sources" as that term was defined in the Clean Water Act, and thus reversed the district court's ruling that Dominion was liable under section 1311(a). The court held, however, that Dominion's discharge permit did not regulate the groundwater contamination at issue and affirmed as to those claims. View "Sierra Club v. Virginia Electric & Power Co." on Justia Law

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Oregon's restrictions on the use of motorized mining equipment in rivers and streams containing essential salmon habitat, adopted into law as Senate Bill 3, were not preempted by federal law. The Ninth Circuit affirmed the district court's grant of summary judgment for the state, and held, assuming without deciding that federal law preempts the extension of state land use plans onto unpatented mining claims on federal lands, Senate Bill 3 was not preempted because it constituted an environmental regulation, not a state land use planning law. Moreover, Senate Bill 3 did not stand as an obstacle to the accomplishment of the full purposes and objectives of Congress. View "Bohmker v. Oregon" on Justia Law

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This appeal challenged the trial court’s denial of a special motion to strike pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute,, directed at a cross-complaint asserting causes of action arising from a civil enforcement action brought by Feather River Air Quality Management District against Harmun Takhar for multiple violations of state and local air pollution laws. Specifically, this case involved dust. Takhar owned a piece of property in Yuba County. In June 2014, he began the process of converting that property from pasture land to an almond orchard. This process required the clearing, grading, and disking of the land in order to prepare the site for planting. The earthwork generated dust that was carried from Takhar’s property and deposited onto neighboring properties. These neighboring property owners complained to the District. District staff contacted Takhar, informed him the dust emissions were impacting neighboring properties causing a public nuisance, and requested he take reasonable precautions to prevent the dust from reaching the affected properties, such as waiting for the wind to change directions before engaging in earthwork. Violations were ultimately imposed, and an offer to settle the civil penalties was made. Takhar did not take the District up on its settlement offer and instead continued with his clearing activities. The District then brought a civil enforcement action against Takhar. The Court of Appeal concluded Takhar did not demonstrate he qualified for an exemption to the anti-SLAPP statute. The causes of action alleged in Takhar’s cross-complaint arose from protected petitioning activity and he did not establish a probability of prevailing on the merits of these claims. The Court therefore remanded the matter to the trial court with directions to grant the anti-SLAPP motion and dismiss the cross-complaint. View "Takhar v. California ex rel. Feather River Air Quality Management Dist." on Justia Law

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From 1910-1986, Greenlease owned the Greenville Pennsylvania site and operated railcar manufacturing facilities there. Trinity acquired the site from Greenlease in 1986 and continued to manufacture railcars there until 2000. A state investigation of Trinity’s waste-disposal activities resulted in criminal prosecution and, eventually, a plea-bargained consent decree, requiring that Trinity remediate the contaminated land. That effort cost Trinity nearly $9 million. The district court held that, under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601 (CERCLA), and Pennsylvania’s Hazardous Sites Cleanup Act, Trinity is entitled to contribution from Greenlease for remediation costs. After eight years of litigation, and having sorted through a century of historical records, the court allocated 62% of the total cleanup costs to Greenlease and the remainder to Trinity. The Third Circuit affirmed pre-trial rulings on dispositive motions but vacated the cost allocation determination. The agreement between Trinity and Greenlease did not shift liability away from Greenlease after a three-year contractual indemnification period expired. Trinity’s response costs were necessary and reasonable. The court’s methodology, however, failed to differentiate between different remediation activities and their varied costs, and, as applied, treated data measured in square feet as equivalent to data measured in cubic yards. View "Trinity Industries Inc v. Greenlease Holding Co" on Justia Law