Petitioner Audubon Society of Greater Denver sought review of the Army Corps of Engineers’ approval of a project to store more water in the Chatfield Reservoir in Colorado. Audubon argued the Corps’ review and approval of the project failed to comply with the National Environmental Policy Act and the Clean Water Act. The district court denied the petition for review after concluding that the Corps’ decision was not arbitrary or capricious. Audubon also moved to supplement the administrative record. The district court denied the motion because it found that the administrative record sufficiently informed the Corps’ analysis. Finding no reversible error, the Tenth Circuit affirmed the district court. View "Audubon Society v. US Army Corps of Engineers" on Justia Law

The Ninth Circuit withdrew its prior opinion filed December 12, 2017, and substituted the following opinion. In National Mining Association v. Zinke, 877 F.3d 845 (9th Cir. 2017), the panel upheld the decision of the Secretary of the Interior to withdraw, for twenty years, more than one million acres of public lands around Grand Canyon National Park from new mining claims. The panel held that that withdrawal did not extinguish "valid existing rights." The panel affirmed, with one exception, the district court's judgment in an action filed by the Tribe and three environmental groups challenging the Forest Service's determination that Energy Fuels had a valid existing right to operate a uranium mine on land within the withdrawal area. The panel held that the Federal Land Policy and Management Act of 1976, and not the Mining Act, formed the legal basis of plaintiffs' claim that Canyon Mine should not be exempt from the withdrawal because the valid existing right determination was in error. The panel vacated as to this claim and remanded for reconsideration on the merits. View "Havasupai Tribe v. Provencio" on Justia Law

The city approved an agreement with PG&E which authorized and imposed conditions on the removal of up to 272 trees within its local natural gas pipeline rights-of-way. The staff report stated that the removal of protected trees constituted a Major Tree Removal Project, requiring tree removal permits and mitigation. PG&E was willing to provide requested information and applicable mitigation but claimed that an exemption from obtaining any discretionary permits. The city agreed to process the project under Lafayette Municipal Code section 6-1705(b)(S), which allows the city to allow removal of a protected tree “to protect the health, safety and general welfare of the community.” The trial court dismissed a challenge. The court of appeal reversed in part. Claims asserted under the planning and zoning law (Government Code 65000), the city’s general plan, and the city’s tree protection ordinance are barred by Government Code 65009(c)(1)(E), as not timely-served. The statute requires that an action challenging a decision regarding a zoning permit be filed and served within 90 days of the decision; the original petition was timely filed on June 26, 2017, but was not served until after the 90-day deadline. The claim under the California Environmental Quality Act (Pub. Resources Code, 21000) was timely filed and served under Public Resources Code 21167(a) and 21167.6(a). View "Save Lafayette Trees v. City of Lafayette" on Justia Law

Industry and environmental petitioners challenged EPA's determination that it could not, on the basis of "available information," classify three of the 61 areas under the National Ambient Air Quality Standard for sulfur dioxide as meeting or not meeting the air quality standard, and that it must therefore designate them as "unclassifiable." The DC Circuit dismissed the Board's petition for review and held that the Board failed to demonstrate that EPA's "unclassifiable" designation, compared to the "attainment" designation the Board claimed to have been required, subjected it to any cognizable injury. The court denied Sierra Club's petition for review and held that Sierra Club's sole objection was not raised during the period for public comment and thus EPA's resolution of a petition for reconsideration was not before the court. Finally, the court denied Samuel Masias' petition and held that the EPA acted reasonably by issuing an "unclassifiable" designation for Colorado Springs. View "Masias v. EPA" on Justia Law

This case involved a challenge to a Water Code section 13269 waiver of waste discharge requirements for irrigated agricultural land. Discharge requirements could be waived “if the state board or a regional board determines . . . that the waiver is consistent with any applicable state or regional water quality control plan and is in the public interest.” In 2012, the Central Coast Regional Water Quality Control Board modified the waiver. Monterey Coastkeeper, San Luis Obispo Coastkeeper, California Sportfishing Protection Alliance, and Santa Barbara Channelkeeper (collectively Coastkeeper) petitioned for a writ of mandate, challenging the modified waiver. They contended it did not meet the requirements of the Water Code and applicable state water policies. The trial court agreed in part, and issued a peremptory writ of mandate directing the State Board to set aside the modified waiver and issue a new waiver consistent with its decision. The State Board and various agricultural interests as interveners appealed, contending the trial court erred in comparing the modified waiver (unfavorably) to a 2010 draft of the 2012 waiver, failing to defer to the State Board’s expertise and apply a presumption of correctness, and ignoring the appropriate reasonableness standard. They raised specific objections to several of the trial court’s findings. The Court of Appeal agreed with appellants as to two of their points; the trial court’s findings as to the inadequacy of the tiering and monitoring provisions of the modified waiver were not supported by substantial evidence. Therefore, the Court modified the judgment accordingly and otherwise affirmed. View "Monterey Coastkeeper v. Water Resources Control Board" on Justia Law

The panel denied the petition for panel rehearing and rehearing en banc, affirming the panel's January 12, 2018 opinion affirming the district court. In the January opinion, the panel determined that no reasonable fact finder could conclude that the injuries of a killer whale held in captivity, Lolita, presented a "threat of serious harm" sufficient to trigger liability under the Endangered Species Act (ESA). The opinion reflected the panel's determination that the law would be better served by announcing the "threat of serious harm" rule, without defining its contours, and allowing district courts the flexibility to apply that rule to future circumstances with which they are presented. The panel held that the January opinion aligned with Congress's intent in drafting the ESA: to prevent extinction. Finally, the panel rejected PETA's alternative argument that the panel's reading of the ESA conflicted with regulatory definitions. View "People for the Ethical Treatment of Animals, Inc. v. Miami Seaquarium" on Justia Law

In 2007, the Site, in Trainer Borough, was owned by SCT, and used for making corrosion inhibitors, fuel additives, and oil additives. SCT kept flammable, corrosive, and combustible chemicals. Pennsylvania’s Department of Environmental Protection (PADEP) determined that “there is a release or threat of release of hazardous substances or contaminants, which presents a substantial danger to human health or the environment. The federal EPA initiated removal actions. SCT could not afford the cleanup expenses, including electricity to power pollution control and security equipment, The power company was going to shut off the Site's electricity, so PADEP assumed responsibility for the bills. Delaware County forced a tax sale. Buyers purchased the Site for $20,000; the purchase agreement stated that the Site had ongoing environmental issues and remediation. Trainer Custom Chemical took title in October 2012. The EPA and PADEP completed their removal actions in December 2012. PADEP had incurred more than $818,000 in costs. The buyers had demolished many of the Site’s structures; reclaimed salvageable materials were sold for $875,000. In 2014, PADEP received reports indicating that hazards still existed at the Site; its buildings had asbestos-containing materials. PADEP sued under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-28, and Pennsylvania’s Hazardous Sites Cleanup Act (HSCA), to recover cleanup costs. The Third Circuit held that the Buyer is liable for environmental cleanup costs incurred at the Site both before and after the Buyer acquired it. View "Pennsylvania Department of Environmental Protection v. Trainer Custom Chemical LLC" on Justia Law

From 1910 until 1986, Greenlease Holding Co. (“Greenlease”), a subsidiary of the Ampco-Pittsburgh Corporation (“Ampco”), owned a contaminated manufacturing site in Greenville, Pennsylvania. Trinity Industries, Inc. and its wholly-owned subsidiary, Trinity Industries Railcar Co. (collectively, “Trinity”), acquired the site from Greenlease in 1986 and continued to manufacture railcars there until 2000. An investigation by Pennsylvania into Trinity’s waste disposal activities resulted in a criminal prosecution and eventual plea-bargained consent decree which required, in relevant part, that Trinity remediate the contaminated land. That effort cost Trinity nearly $9 million. This appeal arose out of the district court’s determination that, under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), and Pennsylvania’s Hazardous Sites Cleanup Act (“HSCA”), Trinity was entitled to contribution from Greenlease for remediation costs. The parties filed cross-appeals challenging a number of the district court’s rulings, including its ultimate allocation of cleanup costs. The Third Circuit ultimately affirmed the district court on several pre-trial rulings on dispositive motions, vacated the cost allocation determination and remanded for further proceedings. View "Trinity Industries Inc v. Greenlease Holding Co." on Justia Law

The families live close to the Willow Grove Naval Air and Air Reserve Station in Horsham Township and the Naval Air Development Center in Warminster Township, which are contaminated with perfluorinated compounds (PFCs), including perfluorooctanoic acid. The families filed suits under the Pennsylvania Hazardous Sites Cleanup Act, 35 Pa. Cons. Stat. 6020.101-.1305, seeking orders requiring the Navy to pay for medical monitoring and to conduct a health assessment or health effects study that would include blood testing for themselves and others exposed to the hazardous substances released at the contaminated facilities. The district court concluded that the claims fell within the ambit of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9601- 9675, and were challenges under that Act to ongoing cleanup efforts at the facilities. The court decided that it lacked subject matter jurisdiction and dismissed the cases. The Third Circuit affirmed in part; the claim for a health assessment or health effects study is barred because it challenges ongoing cleanup efforts. The court vacated in part, finding that the medical monitoring claim is not a challenge under CERCLA and is not barred by sovereign immunity. View "Giovanni v. United States Department of Navy" on Justia Law

An action to recover civil penalties for violation of the preconstruction requirements for major emitting facilities under 42 U.S.C. 7475(a) must be brought within five years of the first day of the alleged construction period. The Government filed suit against Luminant, alleging that the company violated the Clean Air Act by failing to obtain a statutorily mandated preconstruction permit for the modification of their facilities. The district court dismissed the government's civil penalty and injunctive relief claims as time barred, and held that the injunctive relief claims were subject to dismissal for lack of jurisdiction. The Fifth Circuit held that the government, in its sovereign capacity, was exempted from the concurrent remedies doctrine; the statute of limitations did not apply to the government's claims for injunctive relief that were not civil fines, penalties, or forfeitures; there was no support for the district court's assumption that it was without jurisdiction to entertain any injunctive relief based on past violations of section 7475(a); and thus the district court was not barred by the statute of limitations, nor by the absence of jurisdiction, from further considering whether equitable relief may in some form be available to the government. Accordingly, the court remanded the injunctive relief claims for further consideration. View "United States v. Luminant Generation Co." on Justia Law