Justia Environmental Law Opinion Summaries

In 2011, EPA issued policy letters that explained and arguably changed two EPA policies with respect to publicly owned water treatment facilities. A group representing interests of municipalities prevailed in the Eighth Circuit on their challenge to the new EPA policy letters. In 2013, EPA made statements indicating that it would not acquiesce in or follow the Eighth Circuit's decision outside of that circuit. Petitioner filed suit raising multiple challenges to EPA's non-acquiescence statement's legality. The court explained that the non-acquiescence letter merely articulates how EPA will interpret the Eighth Circuit's decision. To the extent petitioner seeks to directly challenge EPA's non-acquiescence statement, it must first sue in district court under the Administrative Procedure Act (APA), 5 U.S.C. 702-704. To the extent petitioner seeks to directly challenge the 2011 policy letters, petitioner was well outside the 120-day window to directly challenge the letters in this court. To the extent petitioner believed EPA was violating the Eighth Circuit's mandate, the proper course of action was to seek mandamus or other appropriate relief in the Eighth Circuit. Accordingly, the court concluded that it lacked jurisdiction to directly review EPA's non-acquiescence statement and dismissed the petition. View "Center for Regulatory Reasonableness v. EPA" on Justia Law

In 2013, the Department of Justice issued a guidance memorandum, the Cole Memorandum, that addresses enforcement of the Controlled Substances Act (CSA), 21 U.S.C. 801 et seq., in cases involving marijuana. Plaintiff filed a pro se suit against state officials claiming that the Cole Memorandum unconstitutionally commandeers state officials and institutions, and claiming that all defendants violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., by failing to prepare an environmental impact statement before publishing the memorandum. The court agreed with the district court's dismissal of the complaint based on plaintiff's lack of standing because he has not sufficiently alleged that setting aside the Cole Memorandum would redress his alleged injuries from the wider availability of recreational marijuana and new restrictions on medical marijuana, and that any adverse environmental effects of recreational marijuana on his own particularized interests are traceable to the memorandum. Accordingly, the court affirmed the judgment. View "West v. Lynch" on Justia Law

Petitioner is a trade association representing the domestic biofuel industry. In this appeal, petitioner challenges EPA's decision to allow a group of Argentine biofuel producers and other companies to use certain recordkeeping practices in connection with sales of their product in the United States. Petitioner separately challenges the regulation, promulgated in 2010, pursuant to which EPA granted the Argentine application. The court concluded that petitioner's challenge to the 2010 regulation is untimely, and EPA’s decision to grant the Argentine application was neither arbitrary nor capricious, as it comports with agency regulations and rests upon the kind of highly technical judgments to which the court owes agencies great deference. Accordingly, the court dismissed the petition in case number 15-1073 and denied the petition in case number 15-1072. View "National Biodiesel Board v. EPA" on Justia Law

In this appeal, the United States challenges its liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-75, for a portion of the cost of cleaning up hazardous substances at three California facilities owned by Lockheed. The government acknowledges its own share of CERCLA liability and also that it agreed to reimburse Lockheed’s share via overhead charges on unrelated contracts. At issue is whether the government has a valid claim that the particular mechanism by which the United States will pay its share of the costs of environmental remediation under CERCLA interacts with the parties’ agreed-upon contract-based reimbursement method in a way that impermissibly requires the government to make double payment. The court concluded that the district court’s CERCLA judgment did not create any double recovery and the court rejected the government's arguments to the contrary; the government's protest that the crediting mechanism does not help, but instead harms it further, is unavailing; even assuming the court was in a position to review the equities of the parties’ own choice in their Billing Agreement to resort to the indirect-cost billing and crediting mechanism and their apparent decision to use that mechanism for payment and crediting of future costs, the government has not clearly identified how the crediting mechanism is a source of inequity; and, at this juncture, on appeal from the district court’s judgment imposing no liability on the government for past costs, section 114(b) simply is not implicated. Because the all of the government's claims fail, the court affirmed the judgment. View "Lockheed Martin Corp. v. United States" on Justia Law

After the Service issued Buckeye an incidental take permit to build a wind farm in Ohio, Union Neighbors filed suit challenging the issuance of the permit. Union Neighbors claimed that the Service failed to comply with its obligations under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and failed to make required findings under the Endangered Species Act (ESA), 16 U.S.C. 1531. The court concluded that the Service failed to comply with its NEPA obligations when it failed to consider an economically feasible alternative that would take fewer bats than Buckeye’s proposal. Therefore, the court reversed the district court on this issue. The court concluded, however, that the Service’s interpretation of the ESA is entitled to deference, and the Service complied with its ESA obligations. Therefore, the court affirmed as to this issue. View "Union Neighbors United, Inc. v. Jewell" on Justia Law

In consolidated petitions for review, petitioners challenged three regulations - the Major Boilers Rule, the Area Boilers Rule, and the Commercial/Industrial Solid Waste Incinerators (CISWI) Rule - promulgated by the EPA under the Clean Air Act (CAA), 42 U.S.C. 7401 et seq., that sets emissions limits on certain combustion machinery known to release hazardous air pollutants (HAPs). The court vacated the “maximum achievable control technology” (MACT) standards for all major boiler subcategories that would have been affected had the EPA considered all sources included in the subcategories. The court remanded, without vacature to the EPA to: (1) adequately explain how CO acts as a reasonable surrogate for nondioxin/furan organic HAPs; (2) set emission standards for cyclonic burn barrels; (3) determine whether burn-off ovens, soil treatment units, and space heaters are CISWI units and, if so, to set standards for those types of units; (4) adequately explain the exclusion of synthetic boilers from Title V’s permitting requirements; and (5) adequately explain the choice of “generally available control technologies” (GACT) standards over MACT standards for non-Hg metals. View "U.S. Sugar Corp. v. EPA" on Justia Law

During the time EPA had been applying the incorrect (and more relaxed) statutory framework to fine particulate matter, some of the stricter compliance deadlines that would have applied under the correct statutory framework had already elapsed. In its implementation rule, the agency made certain adjustments to those deadlines in an effort to avoid treating states as having already missed deadlines of which they were never aware. WildEarth Guardians challenges EPA’s authority to adjust the deadlines. The court held that, in the novel circumstances presented here, EPA reasonably acted within its statutory authority in adopting new deadlines aimed to avoid imposing retroactive burdens on states seeking to achieve compliance with governing air quality standards. Accordingly, the court dismissed the petition as it concerns the 1997 standard and otherwise denied the petition for review. View "WildEarth Guardians v. EPA" on Justia Law

The Cowlitz gained legal status as a tribe in the eyes of the government in 2002 and then successfully petitioned the Department of the Interior to take into trust and declare as their “initial reservation” a parcel of land. The Cowlitz wish to use this parcel for tribal government facilities, elder housing, a cultural center, as well as a casino. Two groups of plaintiffs, Clark County and Grande Ronde, filed suit under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., challenging the Interior Secretary’s decision to take the land into trust and to allow casino-style gaming. The district court consolidated the actions and subsequently ruled in favor of the Secretary and Cowlitz. The court concluded that the Secretary reasonably interpreted and applied the Indian Reorganization Act (IRA), 25 U.S.C. 461 et seq., to conclude that the Cowlitz are a recognized Indian tribe now under Federal jurisdiction; the Secretary reasonably determined that the Cowlitz meet the “initial-reservation” exception to the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701 et seq.; and the court rejected plaintiffs' remaining claims of error under the IRA, the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and 25 C.F.R. 83.12(b), based on the Secretary’s alleged failure independently to verify the Tribe’s business plan and membership figures. Accordingly, the court affirmed the judgment. View "Confederated Tribes of the Grand Ronde v. Jewell" on Justia Law

The Corps issued Mingo Logan a permit to excavate the tops of several West Virginia mountains, then the EPA withdrew approval from two of the disposal sites, and Mingo Logan challenged the EPA's statutory authority to withdraw the two sites from the Corps permit after it had been issued but the court determined that the Clean Water Act (CWA), 33 U.S.C 1251, authorized the EPA to do so. The court remanded for the district court to consider Mingo Logan's remaining challenges under the Administrative Procedure Act (APA), 5 U.S.C. 706. This appeal concerns the district court's resolution of the APA claims. The court concluded that the EPA did not violate the APA in withdrawing specification of certain disposal areas from the permit; rather, it considered the relevant factors and adequately explained its decision. The EPA’s ex post withdrawal is a product of its broad veto authority under the CWA, not a procedural defect. Accordingly, the court affirmed the judgment. View "Mingo Logan Coal v. EPA" on Justia Law

Plaintiffs filed suit alleging that the government violated various federal statutes by allowing Cape Wind's offshore energy project to move through the regulatory approval process. The Bureau allegedly violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4332(2)(C), the Shelf Lands Act, 43 U.S.C. 1337(p), the National Historic Preservation Act, 54 U.S.C. 306108, and the Migratory Bird Treaty Act, 16 U.S.C. 703(a). The Bureau and the United States Coast Guard allegedly violated the Coast Guard and Maritime Transportation Act, Pub. L. No. 109-241, 414, 120, Stat. 516, 540 (2006). The Fish and Wildlife Service allegedly violated the Endangered Species Act, 16 U.S.C. 1538. The district court rejected most of plaintiffs' claims and granted partial summary judgment to the government agencies. The district court then rejected plaintiffs’ remaining claims, granted summary judgment, and dismissed the case. The court reversed the district court’s judgment that the Bureau’s environmental impact statement complied with NEPA and that the Service’s incidental take statement complied with the Endangered Species Act, and the court vacated both statements. The court affirmed the district court's judgment dismissing plaintiffs' remaining claims, and remanded for further proceedings. View "Public Employees v. Hopper" on Justia Law