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Tennessee Valley Authority (TVA) operates the coal-fired electricity-generating Gallatin Fossil Plant on a part of the Cumberland River called Old Hickory Lake, a popular recreation spot. The plant supplies electricity to approximately 565,000 households in the Nashville area but generates waste byproducts, including coal combustion residuals or coal ash. The plant disposes of the coal ash by “sluicing” (mixing with lots of water) and allowing the coal ash solids to settle unlined man-made coal ash ponds adjacent to the river. The plant has a permit to discharge some coal combustion wastewater, which contains heavy metals and other pollutants, into the river through a pipe. Other wastewater is allegedly discharged through leaks from the ponds through the groundwater into the Cumberland River, a waterway protected by the Clean Water Act (CWA), 33 U.S.C. 1251. The district court found that TVA violated the CWA because its coal ash ponds leak pollutants through groundwater that is “hydrologically connected” to the Cumberland River without a permit. The theory is called the “hydrological connection theory” by the federal Environmental Protection Agency (EPA). The Sixth Circuit reversed, finding no support for the hydrological connection theory in either the text or the history of the CWA and related environmental laws. View "Tennessee Clean Water Network v. Tennessee Valley Authority" on Justia Law

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Kentucky Utilities (KU) burns coal to produce energy, then stores the leftover coal ash in two man-made ponds. Environmental groups contend that the chemicals in the coal ash are contaminating the surrounding groundwater, which in turn contaminates a nearby lake, in violation of the Clean Water Act (CWA), 33 U.S.C. 1251(a), and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6902(a). The Sixth Circuit affirmed, in part, the dismissal of their suit. The CWA does not extend liability to pollution that reaches surface waters via groundwater. A “point source,” of pollution under the CWA is a “discernible, confined and discrete conveyance.” Groundwater is not a point source. RCRA does, however govern this conduct, and the plaintiffs have met the statutory rigors needed to bring such a claim. They have alleged (and supported) an imminent and substantial threat to the environment; they have provided the EPA and Kentucky ninety days to respond to those allegations, and neither the EPA nor Kentucky has filed one of the three types of actions that would preclude the citizen groups from proceeding with their federal lawsuit, so the district court had jurisdiction. View "Kentucky Waterways Alliance v. Kentucky Utilities Co." on Justia Law

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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