by
In 2007, the Illinois Environmental Protection Agency (IEPA) brought charges before the Pollution Control Board against EOR Energy and AET Environmental under the Illinois Environmental Protection Act, 415 ILCS 5/1–5/58, for transporting hazardous‐waste acid into Illinois, storing that waste, and then injecting it into EOR’s industrial wells. EOR unsuccessfully argued in state courts that the IEPA and the Board did not have jurisdiction over EOR’s acid dumping. EOR asserted that it was not injecting “waste” into its wells but was merely injecting an acid that was used to treat the wells and aid in petroleum extraction so that the Illinois Department of Natural Resources had exclusive jurisdiction under the Illinois Oil and Gas Act, 225 ILCS 725/1. EOR then sought a federal declaratory judgment. The district court dismissed the case, citing the Eleventh Amendment and issue preclusion. The Seventh Circuit affirmed, “emphatically” rejecting the “undisguised attempt to execute an end‐run around the state court’s decision.” View "EOR Energy, LLC v. Illinois Environmental Protection Agency" on Justia Law

by
Mittelstadt’s Richland County, Wisconsin land was enrolled in the Conservation Reserve Program (CRP), administered by the Department of Agriculture (USDA), from 1987-2006. CRP participants agree to remove environmentally sensitive land from agricultural production in return for annual rental payments from the USDA. In 2006, the agency denied Mittelstadt’s application to re-enroll. After exhausting his administrative appeals, he sued under the Administrative Procedure Act, 5 U.S.C. 701, and asserting a breach of contract. The district court entered judgment in favor of the agency. The Seventh Circuit affirmed. Under the regulations governing the CRP, the USDA has broad discretion to evaluate offers of enrollment in the program on a competitive basis by considering the environmental benefits of a producer’s land relative to its costs. Given the agency’s wide latitude, the Farm Services Agency did not abuse its discretion when it denied re-enrollment of Mittelstadt’s land under a new definition of “mixed hardwoods.” Because he never entered a new contract with the agency, there was no breach of contract. View "Mittelstadt v. Perdue" on Justia Law

by
Petitioners challenged the Board's decision certifying that it had reasonable assurances that activities related to the construction of a natural gas pipeline would not degrade the state's water resources. The Fourth Circuit denied the petition for review, holding that the Board's certification under section 401 of the Clean Water Act was not arbitrary and capricious. The court held that the decision to reopen the comment period and not to conduct a combined effect analysis did not render the state agencies' issuance of a section 401 certification arbitrary and capricious. The court also held that the state agencies' reasonable assurance determination was not arbitrary and capricious because they relied on existing Virginia water quality standards and regulations to effectively address concerns regarding water quality deterioration, and the state agencies' treatment of karst terrain was not arbitrary or capricious because of the conditions imposed on the certification. View "Appalachian Voices v. State Water Control Board" on Justia Law

by
Plaintiffs, opposed the development of an eight-unit multifamily residential building in a high-density residential district, challenged a resolution granting demolition and design review permits. They claimed the city violated the California Environmental Quality Act (CEQA; Govt. Code, 21000) because the city council failed to consider aspects of the project other than design review and that the city abused its discretion under CEQA by approving the demolition permit and design review without requiring an environmental impact report (EIR) based on its determination that the proposed project met the requirements for a Class 32 (infill) categorical exemption under CEQA Guidelines. The court of appeal affirmed. The city council properly limited the scope of its review as required by the ordinance, did not abdicate its duty to act, and did not delegate its ultimate duty to the planning commission. St. Helena's Municipal Code did not require the city council to consider the environmental consequences of a multi-family project in an HR district Because of that lack of any discretion to address environmental effects, it was unnecessary to rely on the Class 32 exemption. View "McCorkle Eastside Neighborhood Group v. St. Helena" on Justia Law

by
As a cost-saving measure, Flint's municipal water supply was switched from the Detroit Water and Sewerage Department (DWSD) to the Flint River and was processed by an outdated and previously mothballed water treatment plant, with the approval of Michigan regulators and an engineering firm, and distributed without adding chemicals to counter the river water’s known corrosivity. Within days, residents complained of foul smelling and tasting water. Within weeks, some residents’ hair began to fall out and their skin developed rashes. Within a year, there were positive tests for E. coli, a spike in deaths from Legionnaires’ disease, and reports of dangerously high blood-lead levels in Flint children. The river water was 19 times more corrosive than the Lake Huron water pumped supplied by DWSD; without corrosion-control treatment, lead leached out of the lead-based service lines. The district court dismissed many claims and defendants in a suit by residents. The remaining defendants appealed with respect to the remaining 42 U.S.C. 1983 claim--that defendants violated their right to bodily integrity as guaranteed by the Substantive Due Process Clause. The Sixth Circuit concluded that plaintiffs pled a plausible Due Process violation regarding some defendants, rejecting their qualified immunity claims. The court reversed as to other defendants; plaintiffs alleged mere negligence, not a constitutional violation, against them. The court rejected a claim that the city was entitled to Eleventh Amendment immunity based on Michigan's takeover of the city under the “Emergency Manager” law. View "Guertin v. Michigan" on Justia Law

by
The Supreme Court reversed the orders of the Power Siting Board granting a motion filed by Black Fork Wind Energy, LLC requesting a two-year extension of Black Fork’s certificate to construct a proposed wind farm, holding the Board’s extension of the certificate constituted an “amendment” under Ohio Rev. Code 4906.06(E) and 4906.07(B) and, therefore, the Board erred by granting Black Fork’s motion rather than following the statutory procedures for amending a certificate. On appeal, Appellants argued that extending Black Fork’s certificate was an “amendment” because it modified a material condition of the original certificate. The Supreme Court agreed, holding (1) the two-year extension of the certificate amount to an “amendment,” and therefore, the Board acted unlawfully by failing to comply with the statutory process for amending a certificate; and (2) because there was the possibility of a different outcome but for the Board’s error, Appellants established that they were prejudiced by the Board’s orders. View "In re Application of Black Fork Wind Energy, LLC" on Justia Law

by
The Supreme Court affirmed in part and reversed in part the judgment of the Court of Appeal reversing the judgment of the trial court approving an Environmental Impact Report (EIR) issued as part of a master plan to develop a partial retirement community in Fresno, California, holding that the EIR failed to provide an adequate discussion of health and safety problems that will be caused by the rise in various pollutants resulting from the project’s development but that the EIR was generally clear about the potential environmental harm and outlined mitigation measures to address those effects with factual support and scientific consensus. The Court of Appeal found (1) the EIR’s analyses of the project’s air quality impacts was inadequate and that the EIR improperly deferred mitigation measures by proposing to substitute more effective measures if available in the future; and (2) the mitigation measures proposed were impermissibly vague and unlikely to reduce adverse health impacts to less than significant levels. The Supreme Court affirmed as to the first issue but reversed as to the second issue, holding that the EIR was not sufficient to satisfy the California Environmental Quality Act. View "Sierra Club v. County of Fresno" on Justia Law

by
Petitioner Swanton Wind LLC appealed three determinations by the Public Utility Commission. In September 2016, petitioner requested the Public Utility Commission to grant a certificate of public good (CPG), authorizing petitioner to build a twenty-megawatt wind-powered electric-generation facility in Swanton, Vermont. Petitioner paid a $100,000 fee as part of its CPG petition, which was required by 30 V.S.A. 248b. During the next nine months, petitioner and the other parties to the proceeding engaged in substantial activity, and participating in prehearing conferences with the Commission. In early June 2017, the parties submitted filings with proposed schedules for how the proceeding should continue. As part of those filings, the Department of Public Service argued the petition and evidence were insufficient, concerned that petitioner’s filings lacked a final system-impact study. In a June 22, 2017 order, the Commission agreed, finding that it needed a final system-impact study prior to the technical hearings in order to evaluate the petition. Petitioner moved for reconsideration, which was denied. Petitioner then requested to withdraw its petition pursuant to Vermont Rule of Civil Procedure 41(a)(1), and it requested that the Commission return the $100,000 fee it paid pursuant to 30 V.S.A. 248b. In response, several parties argued that the Commission should require petitioner to pay attorney’s fees. In a January 3, 2018 order, the Commission denied petitioner’s request to return the 248b fee, saying it lacked jurisdiction to do so. It granted voluntary dismissal without prejudice pursuant to Rule 41(a)(2), rather than Rule 41(a)(1). It did not award attorney’s fees, as the parties requested, because it found no exceptional circumstances to justify an award. No party appealed that finding. However, the Commission did order that the parties could request attorney’s fees and costs for this proceeding if petitioner chose to refile the petition in the future. Petitioner appealed. The Vermont Supreme Court determined the Commission erred in concluding it lacked jurisdiction to refund the 248b fee, and erred in concluding it could reopen findings from a final order in a previous proceeding. The Court reversed and remanded the Commission’s order regarding the 248b, and struck the Commission’s order regarding attorney’s fees. View "In re Petition of Swanton Wind LLC" on Justia Law

by
The Department of Water Resources (DWR) applied to the Federal Energy Regulatory Commission (FERC or Commission) to extend its federal license to operate Oroville Dam and its facilities as a hydroelectric dam (referred to as the Oroville Facilities Project, Project, Settlement Agreement or "SA"). The plaintiffs brought this action in the superior court to stay the license procedure on the premise the environmental effects of relicensing the dam concern the operation of the dam and that jurisdiction to review the matter lies in the state courts pursuant to the California Environmental Quality Act. They claimed that a CEQA document offered to support the DWR’s application to FERC failed to consider the impact of climate change on the operation of the dam for all the purposes served by the dam. The superior court dismissed the complaint on the ground that predicting the impact of climate change is speculative. The plaintiffs appealed. A federal license is required by the Federal Power Act for the construction and operation of a hydroelectric dam. The license is issued by FERC. With one relevant exception, the FPA occupies the field of licensing a hydroelectric dam and bars review in the state courts of matters subject to review by FERC. Plaintiffs did not seek federal review as required by 18 C.F.R part 4.34(i)(6)(vii)(2003). The Court of Appeal concluded it lacked jurisdiction to hear this case. It returned the case to the trial court with an order to dismiss. View "County of Butte v. Dept. of Water Resources" on Justia Law

by
The under review by the New Jersey Supreme Court affirmed several actions by the State Department of Environmental Protection (DEP) with regard to property in the Borough of Oakland that is subject to the Highlands Water Protection and Planning Act (Highlands Act), N.J.S.A. 13:20-1 to -35. N.J. The Supreme Court granted certiorari review only the determination that the property owner -- Bi-County Development Corporation (Bi-County) -- qualified for the exemption allowed under the Highlands Act for the construction of affordable housing projects, N.J.S.A. 13:20-28(a)(17) (Exemption 17). The issue required interpretation of Exemption 17’s language concerning expiration of its safe harbor. The Court agreed with the Appellate Division, and the DEP, that this project could proceed under Exemption 17 because its qualification had not expired. The Supreme Court affirmed the Appellate Division substantially for the reasons expressed in the published decision of the panel, adding only that affirmance was based solely on a plain language reading of the Highlands Act that did not incorporate the definition of “final approval” contained in the separate but related Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. View "N.J. Highlands Coalition v. New Jersey Department of Environmental Protection ." on Justia Law