Justia Environmental Law Opinion Summaries

Articles Posted in US Court of Appeals for the District of Columbia Circuit
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The Oglala Sioux Tribe and its nonprofit association Aligning for Responsible Mining seek a review of the Nuclear Regulatory Commission’s decision to grant Powertech (USA), Inc., a source material license to extract uranium from ore beds in South Dakota. The Tribe maintains that the Commission failed to meet its obligations under the National Environmental Policy Act and the National Historic Preservation Act.   The DC Circuit denied the Tribe’s petition because the Commission adequately complied with the relevant statutory and regulatory requirements. The court explained that the Tribe failed to demonstrate any NEPA deficiencies that require setting aside the Commission’s decisions.   First, the Tribe argues the agency did not adequately consult with the Tribe. The Tribe’s refusal to participate in the 2013 Survey and its challenges to the opportunity the Tribe was, in fact, afforded. The Commission satisfied its consultation obligations under the NHPA. Second, the Tribe maintains the agency impermissibly failed to survey the Dewey-Burdock area for the Tribe’s historic properties. NHPA regulations permit an agency to conduct a survey as part of its efforts to identify historic properties, but agencies are free to use a survey or some other method to gather information. Finally, the Tribe suggests the agency impermissibly postponed identifying historic properties until after Powertech had begun operations. NHPA regulations, however, expressly contemplate this approach. View "Oglala Sioux Tribe v. NRC" on Justia Law

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In 2015, the Environmental Protection Agency established federal standards for coal ash disposal facilities. Under the governing statute, a state, instead of submitting to federal oversight of coal ash facilities within its borders, can develop its own permitting program and seek EPA’s approval of the state program as consistent with federal standards. Oklahoma chose that path and obtained EPA’s approval of its permitting program. Plaintiffs, a trio of environmental groups, then brought this action contesting EPA’s approval. They challenged the adequacy of Oklahoma’s permitting program on several grounds. The district court granted summary judgment to EPA on most of the claims, and Plaintiffs appealed.   The DC Circuit did not reach the merits because the court concluded that Plaintiffs lack standing to bring them. Thus, the court vacated the district court’s grant of summary judgment to EPA and remanded for dismissal of the relevant claims. The court explained that Plaintiffs failed to show why compelling EPA to publish guidelines for public participation in state permitting programs would redress alleged injuries to their members from deficiencies in Oklahoma’s program. Thus they lack standing to bring the citizen-suit claim.   Further, the court wrote that Plaintiffs have made no effort to demonstrate, for instance, likely satisfaction of the condition that there be “appropriations specifically provided in appropriations Act to carry out a [federal permitting] program in a nonparticipating state.” Moreover, the court explained that Plaintiffs failed to establish their standing to bring that claim because they fail to demonstrate imminent injury in connection with it. View "Waterkeeper Alliance, Inc. v. Michael Regan" on Justia Law

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To determine whether to list a given site, the EPA primarily uses the Hazard Ranking System (“HRS”), a set of comprehensive scoring points for evaluating the potential damage from hazardous waste releases. After performing an HRS analysis of a site of groundwater contamination southwest of Minneapolis, Minnesota, the EPA determined that the HRS site score exceeded the required threshold for NPL listing.   Petitioners Daikin Applied Americas Inc. and Super Radiator Coils LP, former owners of a metal fabricating facility that is a possible source of the contaminants, challenged the listing as arbitrary and capricious and unsupported by substantial evidence. Petitioners contended that the EPA arbitrarily ignored other possible sources of contamination in determining the site and that the EPA both ignored evidence disproving, and failed to provide adequate evidence of, aquifer interconnectivity.   Petitioners argued that the EPA did not adequately establish observed releases. In particular, they contend that the EPA’s chemical analysis was flawed. The DC Circuit rejected the Petitioners’ claims and denied the petition for review. The Court held that the EPA was not required to attribute the contamination to a specific source and adequately supported aquifer interconnectivity. The court wrote that Petitioners misread the chart listing the wells and the hazardous substances exceeding the release threshold. Second, the EPA did not arbitrarily select well data. Further, the EPA correctly noted that “at this stage of the listing, groundwater modeling, 3D or otherwise, to predict migration pathways [is] not required as part of an HRS evaluation." View "Daikin Applied Americas Inc. v. EPA" on Justia Law

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Petitioners, all environmental organizations, sought to vacate the Federal Energy and Regulatory Commission’s (“FERC” or the “Commission”) order giving the green light to Mountain Valley, LLC to construct a new pipeline. That pipeline, the “Southgate Project,” would extend Mountain Valley’s Mainline System Project, connecting its terminus in Virginia to facilities in North Carolina. Its “newness,” as an extension of the nonoperational Mainline System Project, is one of the prime subjects of dispute.   Petitioners also requested that the DC Circuit vacate the Commission’s denial of rehearing. Petitioners challenged the Commission’s Certificate Order and its denial of rehearing as arbitrary and capricious on two bases: the approved return on equity rate and the adequacy of the Commission’s Environmental Impact Statement.     The DC Circuit denied the petition finding that the Commission’s decisions on both scores were reasonable and supported by substantial evidence. The court wrote that Petitioners’ fear that the return on equity presents a market-skewing incentive is misplaced. The long-term agreement shows an actual need for the Project, not an attempt to overbuild purely for profit.   Further, Petitioners do not marshal compelling evidence to counter the Commission’s cumulative impacts analysis. The City of Roanoke briefing lists downstream sediment as a concern of the Mountain Valley pipeline but does not present any statistical evidence contradicting FERC’s conclusions. Further, the research Petitioners presented in their rehearing request, allegedly demonstrating that fine sediment can travel hundreds of miles and therefore will accumulate between the two Projects, is taken from an environmental product company’s website. These sources thus do not call into question the Commission’s analysis. View "Sierra Club v. FERC" on Justia Law

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Appellants brought an action contesting a Department of Agriculture rulemaking in the district court. Appellants argued that the rule violated both the Food, Agriculture, Conservation, and Trade Act of 1990, as well as the Administrative Procedure Act. The district court granted summary judgment in favor of Appellees.   Appellants contested four aspects of the Final Rule: (1) that collection of a reserve surcharge violates the FACT Act; (2) that the Final Rule violates the FACT Act’s prohibition on cross-subsidization; (3) that the Final Rule violates the FACT Act and the APA by charging both a per-passenger and a per aircraft fee; and (4) that APHIS violated the APA by withholding certain information during the rulemaking process.   The DC Circuit affirmed the district court’s judgment in part, reversed it insofar as the challenged rule authorizes collecting fees to fund a reserve after 2002. The court explained that Congress has directly addressed the question of whether APHIS may continue to collect fees to fund a reserve after fiscal year 2002. They may not do so. Thus, the court remanded this case to the district court for vacating insofar as the Final Rule authorizes collecting fees to maintain a reserve account.  Further, the court wrote that all of Appellants’ arguments regarding the dual application of the Commercial Aircraft User Fee and the Commercial Air Passenger Fee fail. Moreover, Appellants’ argument that fees collected from multiple user classes cannot be comingled in a fund that pays for the inspections of fee-paying user classes fails because the FACT Act does not prohibit this form of cross-subsidization. View "Air Transport Association v. AGRI" on Justia Law

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The Federal Energy Regulatory Commission  (“FERC”) gave Mountain Valley Pipeline, LLC permission to build a natural-gas pipeline that will run through Appellants’ property. Appellants sued in district court to prevent the pipeline’s construction. The district court dismissed their suit because the Natural Gas Act’s  (“NGA”) exclusive review process precluded its jurisdiction.   The DC Circuit affirmed concluding that the NGA creates an exclusive review scheme for challenges to pipeline certificates, one that doesn’t allow for the Appellants’ district court filing. The court wrote that when, as here, Congress creates an exclusive review scheme, it precludes any other court’s jurisdiction over challenges that fit within that scheme. Therefore, Appellants may file their suit in district court only if their facial nondelegation challenge falls outside the NGA’s judicial-review scheme. The court explained that the mere fact that Appellants press constitutional claims (even facial ones) therefore does not control the preclusion inquiry. Further, the mere fact that Appellants are challenging FERC’s structure does not take their suit outside the NGA’s review provision. View "Cletus Bohon v. FERC" on Justia Law

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An applicant for a federal license to operate a hydroelectric facility must seek a State certification that the facility’s discharges will comply with the water quality standards specified in federal law. The State may grant the applicant’s request outright, or it may grant the request subject to conditions relating to water quality, or it may deny the request, or it may fail to act.The Federal Energy Regulatory Commission (“FERC”) decides whether to license hydroelectric projects subject to federal jurisdiction. Two hydroelectric facilities (“Districts”) filed certification requests for both projects with the California State Water Resources Control Board. The Districts object to the conditions that the California Board imposed in granting their requests for certification. FERC denied the Districts’ petition for a declaratory orderThe DC Circuit denied the petitions for judicial review. The court found that because section 401 requires only action within a year to avoid waiver, FERC also rejected the Districts’ argument that the California Board’s denials were “invalid” as a matter of federal law because they were “on non-substantive grounds” and not “on the technical merits of the certification requests.” The court wrote that it agreed with FERC that the California Board did not waive its certification authority under section 401(a)(1) and that FERC’s ruling is not contrary to Hoopa Valley. The court explained that unlike in Hoopa Valley, here the Districts’ requests were not complete and they were not ready for review. The Board’s denials were “without prejudice,” but those rulings still had the legal effect under section 401 of precluding FERC from issuing licenses to the Districts. View "Turlock Irrigation District v. FERC" on Justia Law

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The Federal Power Act (“FPA”), 16 U.S.C. Section 824d(d), ISO-NE filed tariff revisions with the Federal Energy Regulatory Commission (“FERC” or “the Commission”) to compensate generators for maintaining an inventory of energy during the winter months of 2023–24 and 2024–25. The revisions implemented the Inventoried Energy Program (“IEP”), under which ISO-NE will provide additional payments to generators to maintain up to three days’ worth of fuel on-site and convert it into electricity.  The Commission issued an order accepting ISO-NE’s proposed tariff revisions. Petitioners contended that FERC’s decision to approve IEP imposes unjust and unreasonable, discriminatory, and preferential rates.   The DC Circuit upheld all but one component of the Commission’s decision to approve ISO-NE’s proposed tariff revisions implementing the Inventoried Energy Program. The court left in intact the Commission’s June 2020 order except for the portion of IEP that is arbitrary and capricious: the agency’s inclusion of nuclear, biomass, coal, hydroelectric generators. The court wrote that it believes there is no substantial doubt that FERC would have adopted IEP if it had not included these resources in the first place, and IEP can function sensibly without them. View "Belmont Municipal Light Department v. FERC" on Justia Law

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The Natural Gas Act (“NGA”) vests the Federal Energy Regulatory Commission (“Commission “) with broad authority to regulate the transportation and sale of natural gas. The case at issue concerns the Commission’s application of its pipeline requirement to a liquified natural gas (“LNG “) handling facility in San Juan, Puerto Rico. The facility, constructed and operated by New Fortress Energy LLC (“NFE”) receives LNG from a floating storage unit moored at San Juan Harbor which, in turn, receives LNG from shuttle vessels that deliver LNG imports from ocean-going, bulk-carrier tankers.   While constructing the facility, New Fortress received “informal advice” from Commission staff suggesting the Commission would not assert jurisdiction. Shortly after the facility began operating, the Commission issued an order to show cause why the facility is not subject to Commission jurisdiction as an LNG terminal operating in foreign commerce. In response, NFE argued among other things that the 75-foot pipe is not a “pipeline,” but the Commission disagreed, finding the facility “connected to a pipeline” because the pipe “sends out gas” to San Juan Power Plant.   The DC Circuit denied NFE’s petition seeking review of the Federal Energy Regulatory Commission’s application of its pipeline requirement. The court explained that the physical characteristics of piping are merely a function of the volume of LNG to be imported or exported and the relative distance between the LNG terminal and the ultimate end-user. The Commission also pointed out that it “has never considered” a pipeline’s physical characteristics when determining whether a facility is an LNG import or export terminal. View "New Fortress Energy Inc. v. FERC" on Justia Law

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In this claim brought by an organization dedicated to ocean preservation against the National Marine Fisheries Service, a division of the U.S. Department of Commerce, the DC Circuit affirmed the judgment of the trial court in favor of the government defendants. In doing so, the court rejected both of the organization's claims that the National Marine Fisheries Service failed to provide sufficient protection for the dusky shark.The court held that the National Marine Fisheries Service did not violate the Magnuson-Stevens Act by failing to actually limit bycatch of the overfished dusky shark or hold fisheries accountable to any level of dusky shark bycatch. Nor did the national Marine Fisheries Service violate the Magnuson-Stevens Act by failing to establish a reasonable likelihood that training measures, communication protocols, and minor gear changes would reduce dusky shark bycatch by 35 percent, which is the minimum reduction needed to meet the statutory requirement to rebuild the dusky shark population. View "Oceana, Inc. v. Gina Raimondo" on Justia Law