Justia Environmental Law Opinion Summaries

The Ninth Circuit affirmed the district court's judgment in favor of the Secretary of the Department of Homeland Security (DHS) in an action brought by plaintiffs, alleging that the Secretary violated the National Environmental Policy Act (NEPA) by failing to consider the environmental impacts of various immigration programs and immigration-related policies. Plaintiffs, organizations and individuals, seek to reduce immigration into the United States because it causes population growth, which in turn, they claim, has a detrimental effect on the environment.In regard to Count I, which challenged DHS's 2015 Instruction Manual, the panel concluded that the Manual does not constitute final agency action subject to the court's review under section 704 of the Administrative Procedure Act (APA). Therefore, the district court properly dismissed this count.In regard to Count II, which asserted that DHS implemented eight programs that failed to comply with NEPA, the panel concluded that Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990), squarely foreclosed plaintiffs' request for judicial review of seven non-Deferred Action for Childhood Arrivals (DACA) programs. Therefore, the panel agreed with the district court that none of these programs are reviewable because they are not discrete agency actions.In regard to Counts II, where plaintiffs challenged DACA, as well as Counts III-V, which facially challenged categorical exclusions (CATEXs), the panel concluded that plaintiffs lack Article III standing. In this case, the panel rejected plaintiffs' enticement theory and "more settled population" theory; plaintiffs made no attempt to tie CATEX A3 to any particular action by DHS; plaintiffs offered no evidence showing that population growth was a predictable effect of the DSO and STEM Rules, as well as the AC21 Rule; plaintiffs failed to show injury-in-fact or causation concerning their challenge to the International Entrepreneur Rule; any cumulative effect analysis required by NEPA did not bear on whether plaintiffs had standing to challenge the rules; plaintiffs lacked Article III standing to challenge the sufficiency of the environmental assessments and findings of no significant impact issued in relation to President Obama's Response to the Influx of Unaccompanied Alien Children Across the Southwest border. View "Whitewater Draw Natural Resource Conservation District v. Mayorkas" on Justia Law

The Clean Air Act’s Renewable Fuel Standard Program (42 U.S.C. 7547(o)(2)(A)(i)) calls for annual increases in the amount of renewable fuel introduced into the U.S. fuel supply and sets annual targets for renewable fuel volumes. Each year, EPA implements those targets but has certain waiver authorities to reduce the annual targets below the statutory levels. Companies that produce renewable fuels argued that EPA’s 2019 volume levels (83 Fed. Reg. 63,704) were too low; fuel refiners and retailers argued that the 2019 volumes were too high. Environmental organizations challenged various aspects of the 2019 Rule relating to environmental considerations.The D.C. Circuit denied their petitions for review except for the environmental organizations’ challenges concerning whether the 2019 Rule would affect listed species, which it remanded without vacatur. The court upheld EPA’s 2019 continuation of its practice of granting exemptions to small refineries after promulgating the annual percentage standards; EPA’s decision to exclude electricity generated from renewable biomass (a form of cellulosic biofuel) from its cellulosic biofuel projection in the 2019 Rule; EPA’s determination that the 2019 volumes would not cause severe economic harm; and EPA’s decision not to obligate ethanol blenders under the RFS Program. EPA adequately explained its refusal to exercise the inadequate domestic supply waiver. EPA did not act arbitrarily in estimating that 100 million gallons of sugarcane ethanol were “reasonably attainable” for 2019. View "Growth Energy v. Environmental Protection Agency" on Justia Law

The Supreme Court affirmed the order of the circuit court deciding that the Wisconsin Department of Natural Resources (DNR) had the explicit authority to impose and animal unit maximum condition and an off-site groundwater monitoring condition upon a Wisconsin Pollutant Discharge Elimination System (WPDES) it reissued to Kinnard Farms, Inc. for its concentrated animal feeding operation (CAFO), holding that the circuit court did not err.On review, the circuit court concluded that the DNR had the explicit authority to impose the animal unit maximum and off-site groundwater monitoring conditions on Kinnard's reissued WPDES permit pursuant to Wis. Stat. 283.31(3)-(5) and related regulations. The Supreme Court affirmed, holding that the DNR had the explicit authority to prescribe the animal unit maximum condition and the off-site groundwater monitoring condition. View "Clean Wisconsin, Inc. v. Wisconsin Department of Natural Resources" on Justia Law

In this case concerning eight applications to operate high capacity groundwater wells the Supreme Court affirmed the order of the circuit court with a modification that the circuit court remand all eight well applications to the Department of Natural Resources (DNR), holding that the DNR erroneously interpreted the law in concluding that it had no authority to consider the environmental effects of the wells at issue.The eight well applications did not require a formal environmental review, but the DNR had information that the wells would negatively impact the environment. The DNR, however, approved the applications, concluding that it had no authority to consider the proposed wells' environmental effects. The circuit court vacated the DNR's approval of the wells. The Supreme Court affirmed as modified, holding that the DNR erred in interpreting Wis. Stat. 227.10(2m) as a bar to considering a proposed high capacity well's potentially adverse environmental effects for which an environmental review was not otherwise required. The Court modified the circuit court's order with instruction that it remand all eight applications to the DNR. View "Clean Wisconsin, Inc. v. Wisconsin Department of Natural Resources" on Justia Law

The plaintiffs are residents of Gujarat, India, an Indian governmental entity, and a nonprofit focused on fish workers' rights. IFC is an international organization of 185 member countries. The plaintiffs allege that they have been injured by operations of India's coal-fired Tata Mundra Power Plant, owned and operated by CGPL. IFC loaned funds for the project and conditioned disbursement of those funds on CGPL’s compliance with certain environmental standards. The plaintiffs allege that IFC negligently failed to ensure that the Plant’s design and operation complied with these environmental standards but nonetheless disbursed funds to CGPL. These supervisory omissions and disbursement decisions allegedly took place at IFC’s Washington, D.C. headquarters.On remand from the Supreme Court, which held that organizations such as IFC possess more limited immunity equivalent to that enjoyed by foreign governments, the district court again ruled that IFC was immune from the claims. The D.C. Circuit affirmed. United States courts lack subject-matter jurisdiction. The Foreign Sovereign Immunities Act provides that foreign states are immune from the jurisdiction of United States’ courts, 28 U.S.C. 1604; the commercial activity exception does not apply because the gravamen of the complaint is injurious activities that occurred in India. View "Jam v. International Finance Corp." on Justia Law

The Fourth Circuit considered two petitions for review challenging FERC's issuance of a license to McMahan, authorizing McMahan to operate the Bynum Hydroelectric Project on the Haw River in North Carolina. Assuming without deciding that a state may waive its certification authority under section 401 of the Clean Water Act by coordinating with an applicant in a scheme to defeat the statutory review period through a process of withdrawing and resubmitting the certification application, the court concluded that FERC's finding of coordination between McMahan and NCDEQ is not supported by substantial evidence. Furthermore, without evidence of improper coordination, the court concluded that FERC erred by determining that North Carolina waived its certification authority under section 401.In Case No. 20-1655, the court granted NCDEQ's petition for review of FERC's determination that NCDEQ waived its rights under the Clean Water Act to issue a water quality certification for the Project. The court vacated the license issued by FERC and remanded with instructions for FERC to reissue the license to include the water-quality conditions imposed by NCDEQ. In Case No. 20-1671, the court dismissed for lack of jurisdiction that portion of PK Ventures' petition for review challenging the validity of McMahan's state applications for a section 401 certification. Finding no merit to the remaining claims, the court otherwise denied the petition for review. View "North Carolina Department of Environmental Equality v. Federal Energy Regulatory Commission" on Justia Law

In 2018, the President directed the EPA to initiate rulemaking to consider expanding Reid Vapor Pressure waivers for fuel blends containing gasoline and up to 15 percent ethanol (E15), and to “increase transparency in the Renewable Identification Number (RIN) market,” a feature of the Renewable Fuel Standard (RFS) program. EPA issued a final rule in June 2019, after notice and comment, revising its regulations on fuel volatility and the RIN market. In Section II, EPA announced a new interpretation of when the limits on fuel volatility under the Clean Air Act could be waived under 42 U.S.C. 7545(h)(4), and relatedly reinterpreted the term “substantially similar” in Subsection 7545(f)(1)(A). The petroleum and ethanol industries and the Small Retailers Coalition challenged EPA’s decision to grant a fuel volatility waiver to E15.The D.C. Circuit vacated part of the E15 Rule. Section II exceeds EPA’s authority under Section 7545, which provides for a waiver: For fuel blends containing gasoline and 10 percent denatured anhydrous ethanol. The statute is straightforward in limiting waivers to 10 percent blends. A “petroleum engineer would not read instructions directing the preparation of a solution containing ‘10 percent denatured anhydrous ethanol’ to require the addition of anything other than 10 percent denatured anhydrous ethanol, and no more.” View "American Fuel & Petrochemical Manufacturers v. Environmental Protection Agency" on Justia Law

In this complaint alleging violations of the Clean Water Act (CWA), 33 U.S.C. 1251 et seq., and the Resource Conservation and Recovery Act (RCA), 42 U.S.C. 6901 et seq., the First Circuit vacated the order of the district court granting a motion to stay the proceedings under the so-called doctrine of primary jurisdiction, holding that the district court improperly stayed the case.Conservation Law Foundation, a not-for-profit organization, brought this suit against ExxonMobil Corporation, ExxonMobil Oil Corporation, and ExxonMobil Pipeline Company (collectively, ExxonMobil), alleging unlawful violations at ExxonMobil's petroleum storage and distribution terminal in Everett, Massachusetts. After the district court denied ExxonMobil's motion to dismiss, ExxonMobil moved to stay the case under the doctrine of primary jurisdiction until the Environmental Protection Agency (EPA) issued a decision on ExxonMobil's pending permit renewal application for the Everett terminal. The First Circuit vacated the stay order, holding that the district court erred in granting a stay under the doctrine of primary jurisdiction until EPA issues a new permit for ExxonMobil's Everett terminal. View "Conservation Law Foundation v. ExxonMobil Corp." on Justia Law

The First Circuit vacated the judgment of the district court dismissing this action against the Puerto Rico Aqueduct and Sewer Authority (PRASA) under the citizen enforcement provision of the federal Clean Water Act (CWA), 33 U.S.C. 1365(a), holding that Plaintiff alleged sufficient facts to survive a motion to dismiss.In his complaint, Plaintiff claimed that PRASA was violated the CWA by discharging raw sewage that flowed into a creek near her home in San Juan. The district court dismissed the complaint for failure to state a claim, finding that a citizen suit was barred because the Environmental Protection Agency (EPA) was prosecuting a case it previously filed against PRASA addressing the same violations. The First Circuit vacated the order, holding (1) the district court failed to follow the correct standard for evaluating a motion to dismiss; and (2) Plaintiff's complaint stated a plausible claim that the EPA was not diligently persecuting certain violations. View "Cebollero-Bertran v. Puerto Rico Aqueduct & Sewer Authority" on Justia Law

On March 21, 2017, following a public hearing, East Bay Regional Park District (EBRPD) committed to accept Pacific Gas and Electric Company (PG&E) funding for “[e]nvironmental [r]estoration and [m]aintenance at Briones Regional Park and LafayetteMoraga Regional Trail.” A staff report explained that PG&E had determined that 245 trees near the gas transmission pipeline on EBRPD property needed to be removed for safety reasons, would pay $1,000 for each tree removed, and would provide replacement trees for 31 District-owned trees within the City of Lafayette, per the City’s ordinance. PG&E would also provide $10,000 for two years of maintenance. Days later EBRPD and PG&E signed an agreement. On June 27, EBRPD filed a Notice of Exemption under the California Environmental Quality Act (CEQA) Pub. Res. Code, 2100. On July 31, opponents and EBRPD entered into an agreement to “toll all applicable statutes of limitations for 60 days” PG&E did not consent.On September 29, opponents sued. The court of appeal affirmed the dismissal of the complaint. The CEQA claim is barred by the 180-day limitation period. PG&E, a necessary and indispensable party to that claim, did not consent to tolling. The non-CEQA claims relating to the city and ABRPD ordinances cannot be amended to allege claims for which relief can be granted. Constitutional due process rights of notice and a hearing did not attach to EBRPD’s quasi-legislative acts. View "Save Lafayette Trees v. East Bay Regional Park District" on Justia Law