Justia Environmental Law Opinion Summaries

This appeal concerns the Navy’s peacetime use of Surveillance Towed Array Sensor System Low Frequency Active sonar (LFA sonar). At issue is whether NMFS correctly authorized the incidental take of marine mammals in connection with the Navy’s use of LFA sonar for training, testing, and routine operations. The district court granted summary judgment to defendants on the issue of Marine Mammal Protection Act (MMPA), 16 U.S.C. 1371(a)(5)(A)(i), compliance. The court concluded that NMFS is required to prescribe regulations to achieve the “least practicable adverse impact” before it can authorize incidental take, and NMFS's proposed mitigation measures failed to do so. In this case, NMFS should have considered whether additional mitigation measures were necessary to achieve the least practicable adverse impact on marine mammals, and also whether these mitigation measures would be practicable in light of the Navy’s need for effective military readiness training. While NMFS’s finding that LFA sonar operations will have a “negligible impact” on marine mammal populations is a required element for approval of incidental take, it is not a substitute for an analysis of whether the proposed mitigation measures in the 2012 Final Rule reduce the impact of incidental take on marine mammals to the lowest level practicable. NMFS also did not give adequate protection to areas of the world’s oceans flagged by its own experts as biologically important. Accordingly, the court reversed and remanded for further proceedings. View "NRDC v. Pritzker" on Justia Law

Plaintiffs filed suit alleging that the FWS violated its statutory authority under Public Law 99-625 by terminating a translocation program for the southern sea otter. The district court dismissed the complaint, concluding that it constituted a facial challenge to a 1987 regulation and was thus untimely. The court concluded that the operative agency action challenged is the 2012 program termination, and therefore plaintiffs’ 2013 challenge is timely. The court held only that plaintiffs may challenge FWS’s termination of the program within six years of the decision to terminate the program, and plaintiffs were not required to bring suit within six years of the 1987 rulemaking espousing the authority to terminate the program. To hold otherwise would require plaintiffs to have filed suit nearly a decade before FWS took the action that caused their injury. Accordingly, the court reversed and remanded. The district court on remand should decide if there is merit to plaintiffs’ position that FWS was without Congressional authority to terminate the translocation program. View "Cal. Sea Urchin Comm'n v. Bean" on Justia Law

Petitioner filed suit under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., challenging the agencies' decision to change how they operated the Albeni Falls Dam during the winter months. The environmental assessment (EA) here concludes that no environmental impact statement (EIS) is required because the proposed action will not “result in any new significant impacts to the human environment.” The court concluded that NEPA only requires the preparation of an EIS when a proposed federal action is major. In this case, actions taken with respect to winter dam management since 1995 reinforce the conclusion that there was no change to the status quo. Because the period when the agencies held winter lake levels constant did not change the operational status quo, neither does the decision to revert to flexible winter operations. The court also concluded that, because the decision adopting flexible winter operations does not trigger NEPA’s requirement to publish an EIS, this and petitioner’s other challenges to the EA’s finding of no significant impact are moot. The court rejected petitioner's challenge to the BPA's failure to prepare a supplemental EIS. Accordingly, the court denied the petition for review. View "Idaho Conservation League v. BPA" on Justia Law

After Whittaker was found liable for injuries caused by its pollution and paid to clean up the pollution, Whittaker filed suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., against the United States to recover expenses that it had incurred. The district court concluded that the Castaic Lake lawsuit triggered Whittaker’s right to bring an action for contribution, and that the instant lawsuit sought expenses that could have been reimbursed through such a contribution action. The court held, however, that Whittaker was not required to bring its claims in this case in a section 113(f) contribution action after its liability was resolved in Castaic Lake. In this case, Whittaker was found liable to the Castaic Lake plaintiffs for the expenses specifically related to removing perchlorate from the plaintiffs’ wells and replacing their water. Whittaker now seeks reimbursement from the government for a different set of expenses, for which Whittaker was not found liable in Castaic Lake. The court did not believe that Congress mandated parties who have been sued in section 107 cost recovery actions to bring all of their own CERCLA claims in the form of a contribution action, on an accelerated timeframe, regardless of the merit or the result of the section 107 cost recovery suit. Accordingly, the court reversed and remanded. View "Whittaker Corp. v. United States" on Justia Law

JAC filed suit contending that the NIGC violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370h, when it approved the Tribe's gaming ordinance without first conducting a NEPA environmental review. The district court denied JAC's petition for a writ of mandamus under the Administrative Procedure Act (APA), 5 U.S.C. 706, holding that NIGC’s approval of the 2013 gaming ordinance was not “major federal action” within the meaning of NEPA. Even if NIGC's approval of the ordinance was a major Federal action, the court held that an agency need not adhere to NEPA where doing so would create an irreconcilable and fundamental conflict with the substantive statute at issue. In this case, the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701–2721, requires NIGC to approve a gaming ordinance or resolution pursuant to a mandatory deadline. There is no question that it would be impossible for NIGC to prepare an environmental impact statement (EIS) in the ninety days it has to approve a gaming ordinance. Contrary to JAC’s arguments, NIGC’s approval of the Tribe’s gaming ordinance without conducting a NEPA environmental review did not violate NIGC’s obligations under NEPA because "where a clear and unavoidable conflict in statutory authority exists, NEPA must give way.” Accordingly, the court affirmed the denial of plaintiff's requested writ of mandamus. View "Jamul Action Comm. v. Chaudhuri" on Justia Law

Plaintiffs challenged the BLM's decision to grant Tule a right-of-way on federal lands in southeast San Diego County. The BLM’s right-of-way grant permits Tule to construct and operate a wind energy project, which plaintiffs claim will harm birds in violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703–12, and the Bald and Golden Eagle Protection Act (Eagle Act), 16 U.S.C. 668–668d. Plaintiffs also allege that defendants failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321–70h, in a number of respects in preparing the Environmental Impact Statement (EIS). The court concluded that the district court properly determined that the EIS’s purpose-and need-statement was adequately broad, such that the agency’s decision was not foreordained; the BLM acted within its discretion in dismissing alternative proposals; the mitigation measures, including the 85-page Protection Plan, provide ample detail and adequate baseline data for the agency to evaluate the overall environmental impact of the Project; and the BLM's investigation took a hard look at the environmental impacts of the Project. The court held that plaintiffs’ argument that the Project will inevitably result in migratory-bird fatalities, even if true, is unavailing because the MBTA does not contemplate attenuated secondary liability on agencies like the BLM that act in a purely regulatory capacity, and whose regulatory acts do not directly or proximately cause the “take” of migratory birds, within the meaning of 16 U.S.C. 703(a). The court further held that the BLM’s regulatory role in this case is too far removed from the ultimate legal violation to be independently unlawful under the Administrative Procedure Act (APA), 5 U.S.C. 701-06. Finally, in regard to the Eagle Act, the court held that, in the narrow circumstances of this case, the BLM did not, by granting Tule the referenced right-of-way, take “agency actions . . . implemented by the agency itself” that would directly or proximately result in the incidental take of eagles by it or Tule. Accordingly, the court affirmed the district court's grant of summary judgment for federal agencies and officials, as well as Tule. View "Protect Our Communities Found. v. Jewell" on Justia Law

ONDA filed suit challenging a wind-energy development on the ground that the BLM's environmental review of the project did not adequately address impacts to the greater sage grouse. The court concluded that the BLM’s review did not adequately assess baseline sage grouse numbers during winter at the Echanis site, where the wind turbines are to be installed. Because this error was not harmless, the court reversed the district court's grant of summary judgment for the BLM and others as to this issue. However, the court concluded that ONDA did not exhaust its argument regarding genetic connectivity where ONDA did not bring the issue to the BLM's attention during the environmental review process. Accordingly, the issue was not exhausted and is not subject to review. View "ONDA v. Jewell" on Justia Law

The Coalition filed suit under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., challenging the issuance of a 2009 Finding Of No Significant Impact based on a 2009 Environmental Assessment for redevelopment of a four-block site owned by the United States Navy in downtown San Diego. On appeal, the Coalition challenged the district court's grant of summary judgment for the Federal Defendants, as well as the denial of the Coalition's motion for summary judgment against the Federal Defendants. In San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, this court held that while “security considerations may permit or require modification of some . . . NEPA procedures,” such modifications do not absolve an agency for its legal duty to fulfill NEPA’s requirements, such as public contribution to the NRC’s decision-making process. The court determined that the NRC’s categorical dismissal of the possibility of a terrorist attack was unreasonable and remanded for further proceedings. In this case, given the government’s assessed general risk of terrorism, the location of the redevelopment project, and the military commands to be housed in the Navy Broadway Complex, the court rejected the Federal Defendants’ arguments against applying Mothers for Peace I and find that they must address the risk of a possible terrorist attack in their NEPA analysis. The court further concluded that Federal Defendants did not abuse their discretion in determining that there was no significant impact from the possible environmental effects of potential terrorism at the Navy Broadway Complex, and a Supplemental Environmental Impact Statement is thus not required. Accordingly, the court affirmed the judgment. View "SDNBCC v. USDOD" on Justia Law

This appeal stems from a dispute between Shell and Greenpeace over the search for oil in the Chukchi Sea. The parties now dispute the propriety of a preliminary injunction entered by the district court to protect Shell from certain more vigorous and more intrusive aspects of Greenpeace’s activism. The court did not reach any of Greenpeace's challenges to the injunction because the court concluded that the appeal is moot. Here, the preliminary injunction has expired and will not be renewed. Accordingly, the court dismissed the appeal and remanded for further proceedings. View "Shell Offshore Inc. v. Greenpeace" on Justia Law

Petitioners challenged the FAA's decision that no Environmental Impact Statement (EIS) is necessary to commence operating commercial passenger service at Paine Field in Snohomish County. The court held that the scope of the FAA's demand-based projections were not arbitrary and capricious. In this case, the FAA determined that there were no connected actions for this project and petitioners have failed to provide anything more than mere speculation that the FAA’s actions now will lead to more aircraft activity at Paine Field in the future than covered in the Environmental Assessment (EA). Therefore, it was not arbitrary for the FAA to have included no connected actions in the final EA. The court also concluded that the FAA’s Finding of No Significant Impact was not predetermined by the creation of an optimistic schedule for completing the environmental review or statements favoring commercial service at Paine Field. Here, the FAA performed its National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370h, obligations in good faith and did not prematurely commit resources to opening the terminal. Accordingly, the court denied the petition for review. View "City of Mukilteo v. US DOT" on Justia Law