Justia Environmental Law Opinion Summaries

by
In the spring of 2015, a severe three-day storm deluged an eastern Colorado area with over six inches of rain. Two inches of water fell within thirty minutes on the first day, “a once-in-a-half-century occurrence.” During the storm, a mixture of wastewater and rainwater overflowed from one of the wastewater containment ponds in a cattle feedlot operated by 5 Star Feedlot, Inc. (“5 Star”). That water crossed several miles of land and ultimately found its way to the South Fork of the Republican River, killing an estimated 15,000 fish and giving rise to this litigation. Pursuant to section 33-6-110(1), C.R.S. (2020), the State initiated a civil action against 5 Star seeking to recover the value of the deceased fish based on 5 Star’s alleged violation of three predicate statutory provisions (“taking statutory provisions”) which, with some exceptions not pertinent here, made it unlawful for any person to “take” (i.e., to kill or otherwise acquire possession of or control over) certain wildlife. The parties filed cross-motions for summary judgment on the issue of liability. The district court denied 5 Star’s motion, granted the State’s motion, and, following a bench trial on damages, ordered 5 Star to pay the State $625,755. 5 Star then appealed. The court of appeals reversed, holding that the taking statutory provisions required the State to prove that 5 Star acted knowingly or, at minimum, performed an unlawful voluntary act. To this, the Colorado Supreme Court concurred, finding the district court erred both in entering summary judgment against 5 Star and in denying 5 Star’s cross- motion. “Since the State failed to formally allege, never mind present proof, that 5 Star’s lawful, years-long operation of wastewater containment ponds killed or otherwise acquired possession of or control over the fish, it could not satisfy the voluntary act or actus reus requirement of the taking statutory provisions.” View "Dep't of Nat. Res. v. 5 Star Feedlot, Inc." on Justia Law

by
Plaintiffs, cattle ranchers, filed suit in federal district court, claiming that the Service's decision to apply the 1995 Riparian Mitigation Measures to the Dry Cottonwood Allotment, instead of the allowable use levels in the 2009 Forest Plan, violated the National Forest Management Act and the Administrative Procedure Act.The Ninth Circuit reversed the district court's grant of partial summary judgment to plaintiffs and remanded with instructions to grant summary judgment to the Service. The panel concluded that the Service lawfully applied a particular set of standards for protecting stream habitats from the effects of cattle grazing, the 1995 Riparian Mitigation Measures, to plaintiffs' grazing permits. The panel also concluded that plaintiffs were not entitled to attorney's fees under the Equal Access to Justice Act for their administrative appeal. View "2-Bar Ranch Limited Partnership v. United States Forest Service" on Justia Law

by
In January 2020, the Energy Facility Siting Council adopted permanent rules addressing the process for amending site certificates and other procedural aspects of the council’s work. Petitioners challenged three of the council’s new rules on two grounds, contending the rules exceeded the council’s statutory authority. According to petitioners, two of the rules improperly limited party participation in contested case proceedings, and the third rule improperly authorized the expansion of site certificate boundaries without a site certificate amendment. The council disputed those arguments. The Oregon Supreme Court concurred with petitioners’ arguments and declared the three rules at issue invalid. View "Friends of Columbia Gorge v. Energy Fac. Siting Coun." on Justia Law

by
In Dow v. Lassen Irrigation Co. 216 Cal.App.4th 766 (2013, "Dow I"), the Court of Appeal resolved an ambiguity as to the “or” in the a portion of paragraph 21 of the 1940 Susan River Water Right Decree (decree) : “except further, that Lassen Irrigation Company shall be entitled to divert, or store up to the present capacity of its reservoirs, estimated at 31,500 acre-feet, from the natural flow of Susan River between March 1 and July 1 of each year when the flow of said Susan River is in excess of 20 cubic feet per second . . . .” The Court concluded the “or” was intended to function as a disjunctive connector. In this case, the Court was again called on to resolve a second ambiguity created by the same “or.” Jay Dow, as trustee for the Dow-Bonomini 2013 Family Trust, appealed the trial court’s denial of the trust’s motion challenging the decision of Honey Lake Valley Resources Conservation District, serving as the watermaster administering the decree, finding Lassen Irrigation Company could simultaneously exercise its rights to divert and store water, as provided in the paragraph 21 exception. The trust argued the watermaster’s and trial court’s interpretation of the paragraph 21 exception conflicted with the principles of law espoused in Dow I and was unreasonable given the plain language of the decree, resulting in absurdity and unfairness. The trust believed the “or” had to be read in the exclusive sense such that the Irrigation Company could exercise only one of its rights at a time. The Court of Appeal concluded the “or” in the paragraph 21 exception was appropriately interpreted to apply in the inclusive sense. Thus, the Court affirmed. View "Dow v. Honey Lake Valley Resource Conservation Dist." on Justia Law

by
In 2007, PANNA and the NRDC filed a petition asking the EPA to prohibit foods that contain any residue of the insecticide chlorpyrifos. In 2017, the EPA, pursuant to a court-set deadline, finally ruled on the 2007 Petition and denied it. In 2019, the EPA denied all objections to its decision.The Ninth Circuit granted petitions for review of the 2017 and 2019 EPA Orders and remanded with instructions for the EPA within 60 days after the issuance of the mandate either to modify chlorpyrifos tolerances and concomitantly publish a finding that the modified tolerances are safe, including for infants and children – or to revoke all chlorpyrifos tolerances. In this case, the EPA has spent more than a decade assembling a record of chlorpyrifos's ill effects and has repeatedly determined, based on that record, that it cannot conclude, to the statutorily required standard of reasonable certainty, that the present tolerances are causing no harm. Yet, rather than ban the pesticide or reduce the tolerances to levels that the EPA can find are reasonably certain to cause no harm, the EPA has sought to evade, through one delaying tactic after another, its plain statutory duties. Therefore, the panel concluded that the EPA's delay tactic was a total abdication of its statutory duty under the Federal Food, Drug and Cosmetic Act (FFDCA). The panel also ordered the EPA to correspondingly modify or cancel related Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) registrations for food use in a timely fashion consistent with the requirements of 21 U.S.C. 346a(a)(1). View "League of United Latin American Citizens v. Regan" on Justia Law

by
Petitioner-Appellant Rio Hondo petitioned the Tenth Circuit Court of Appeal to review a decision of the EPA’s Environmental Appeals Board (“EAB”). Rio Hondo sought to vacate relaxed pollutant limitations in a 2017 permit issued by the EPA to an upstream waste water treatment plant. The waste water treatment plant served the Village of Ruidoso and City of Ruidoso Downs, and was an identified point source of pollutants into the Rio Ruidoso river. The Rio Ruidoso was classified under the Clean Water Act (“CWA”) as marginally impaired for nutrients, such as nitrogen and phosphorus. The Rio Hondo river was downstream from the Rio Ruidoso river, and the Rio Hondo river flowed adjacent to the Rio Hondo ranch. Rio Hondo contended that reduced river water quality, including algae blooms, harmed its ability to make critical use of the river water. Rio Hondo contended two aspects of the EPA’s 2017 permit constitute impermissible backsliding under the CWA: (1) the permit does not include concentration-based limitations that prior permits included; and (2) the permit increased the mass-based limitation on nitrogen discharges. The 2017 permit relied on a 2016 Total Maximum Daily Load (“TMDL”) report prepared by the New Mexico Environment Department and adopted by the EPA. Rio Hondo previously challenged the 2016 TMDL in New Mexico state court and lost. The Tenth Circuit denied Rio Hondo's petition: Rio Hondo presented no new information which would cast doubt on the 2016 TMDL, and its challenge to the 2017 permit "boils down to a challenge of that underlying 2016 TMDL. The record demonstrates that the EPA reasonably relied on the 2016 TMDL in issuing the 2017 permit, did not abuse its discretion in creating the permit limits, and appropriately applied a statutory exception to the anti-backsliding provisions of the CWA." View "Rio Hondo Land v. EPA" on Justia Law

by
The First Circuit affirmed in part and reversed in part the judgment of the district court granting summary judgment in favor of Defendants and dismissing Blackstone Headwaters Coalition, Inc.'s complaint alleging that Defendants had violated the Federal Clean Water Act (CWA), 33 U.S.C. 1251 et seq., holding that the district court erred by granting summary judgment on Count I of the complaint.Plaintiff, a non-profit environmental organization, sued two companies and two individuals involved in the development of a residential construction site in Massachusetts. In Count I of the complaint, Plaintiff alleged that three defendants had violated the Federal CWA by failing to obtain from the EPA a construction general permit. Count II alleged that all four defendants had violated the Federal CWA by failing to prevent sediment-laden stormwater discharges from flowing from that construction site into waters leading to the Blackstone River. The district court granted summary judgment for Defendants. The First Circuit reversed in part, holding that nothing supported Defendants' argument that a citizen suit under the Federal CWA cannot be brought against an entity that is alleged to be an operator of a construction site that is unlawfully discharging pollutants into federal waters long as another entity controlled by the same individuals has such permit coverage. View "BBlackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc." on Justia Law

by
SSE has long opposed the expansion of Syar’s aggregate operation. Syar filed an application for expansion in May 2008. After more than seven years of environmental review and numerous hearings, the County Planning Commission, in October 2015, certified the final Environmental Impact Report (EIR) and approved a modified project and a permit for an expansion half the size originally sought and subject to more than 100 pages of conditions and mitigation measures. The County Board of Supervisions conducted nearly a year of additional environmental review and hearings, and in a 109-page decision, rejected SSE’s appeals, certified the EIR, and approved a further modified project and permit.The court of appeal affirmed the trial court’s rejection of SSE’s petition for review. The court rejected multiple challenges to the EIR, noting that the ultimate inquiry under the California Environmental Quality Act (CEQA) is whether the EIR includes enough detail “to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project. The court found that consistency with the general plan was discussed at length throughout the project review process. View "Stop Syar Expansion v. County of Napa" on Justia Law

by
Wilton Rancheria, a Sacramento area Indian tribe, was federally recognized in 1927. The 1958 Rancheria Act disestablished Wilton and 40 other reservations. In 1979, several California rancherias, including Wilton, sued. The government agreed to restore Indian status. Wilton was erroneously excluded from the settlement. In 2009, the Department of the Interior restored Wilton’s federal recognition and agreed to “accept in trust certain lands formerly belonging to” Wilton. Wilton petitioned to acquire 282 acres near Galt for a casino. A draft environmental impact statement (EIS), under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321–4347, identified alternatives, including a 30-acre Elk Grove parcel. Wilton changed its preference and requested that the Department acquire the Elk Grove location. Objectors responded that acquiring the Elk Grove location would moot pending state-court suits.The Department’s final EIS identified the Elk Grove location as the preferred alternative. The Principal Deputy Assistant Secretary– Indian Affairs, Roberts, signed the Record of Decision (ROD) pursuant to delegated authority. Roberts had served as Acting Assistant Secretary– Indian Affairs (AS–IA), but after his acting status lapsed under the Federal Vacancies Reform Act, Roberts continued to exercise the non-exclusive AS–IA functions. Black, who became Acting AS–IA in the new administration, signed off on the acquisition.Objectors filed suit before the issuance of the Department’s ROD and unsuccessfully sought a temporary restraining order. The D.C. Circuit affirmed summary judgment for the Department, rejecting claims that the Department impermissibly delegated the authority to make a final agency action to acquire the land to an official who could not wield this authority, was barred from acquiring land in trust on behalf of Wilton’s members, and failed to comply with NEPA. View "Stand Up For California! v. United States Department of the Interior" on Justia Law

by
The California State Air Resources Board, pursuant to Health and Safety Code 39613, imposed fees on manufacturers who sold consumer products and architectural coatings that emitted volatile organic compounds (VOCs) of 250 tons or more per year. The Board implemented the statute by adopting regulations that impose a uniform fee per ton on all affected manufacturers. Appellant American Coatings Association, Inc. (the Association) sought a declaration that the statute and regulations were unlawful and unenforceable, and a peremptory writ of mandate commanding the Board to vacate the regulations. The trial court denied the petition and complaint. On appeal, the Association contended the statute was a tax subject to Proposition 13, the fees imposed did not bear a reasonable relationship to the manufacturers’ regulatory burden, the statute unlawfully delegated revenue authority to the Board, and the statute’s regulations were arbitrary and capricious. Finding no reversible error in the trial court's judgment, the Court of Appeal affirmed. View "American Coatings Association, Inc. v. State Air Resources Board" on Justia Law