Justia Environmental Law Opinion Summaries

The FCC regulates facilities and devices that transmit radio waves and microwaves, including cell phones and facilities for radio, TV, and cell phone communications, 47 U.S.C. 302a(a). Radio waves and microwaves are electromagnetic energy, “radiofrequency” that move through space, as “RF radiation.” RF radiation at sufficiently high levels can heat human body tissue, resulting in “thermal” effects. Exposure to lower levels of RF radiation might also cause other biological effects.The National Environmental Policy Act (NEPA) requires federal agencies to account for the environmental effects of their proposed actions; a “major Federal action” requires an environmental impact statement, 42 U.S.C. 4332(C). If it is unclear whether a proposed action will “significantly affect[] the quality of the human environment,” the agency may prepare a limited environmental assessment. An agency may also use “categorical exclusions.” Pursuant to NEPA, the FCC has guidelines for human exposure to RF radiation, last updated in 1996. In 2013, the FCC issued a notice of inquiry regarding the adequacy of its guidelines and sought comments on five issues in response to changes in the ubiquity of wireless devices and in scientific standards and research. In 2019, the FCC issued a final order, declining to undertake any of the changes contemplated in the notice of inquiry.The D.C. Circuit remanded. The FCC failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer. View "Environmental Health Trust v. Federal Communications Commission" on Justia Law

The Clean Air Act’s Renewable Fuel Standard Program (42 U.S.C. 7547(o)(2)(A)(i)) calls for annual increases in the amount of renewable fuel introduced into the U.S. fuel supply and sets annual targets for renewable fuel volumes. Each year, EPA implements those targets but has certain waiver authorities to reduce the annual targets below the statutory levels. Companies that produce renewable fuels argued that EPA’s 2019 volume levels (83 Fed. Reg. 63,704) were too low; fuel refiners and retailers argued that the 2019 volumes were too high. Environmental organizations challenged various aspects of the 2019 Rule relating to environmental considerations.The D.C. Circuit denied their petitions for review except for the environmental organizations’ challenges concerning whether the 2019 Rule would affect listed species, which it remanded without vacatur. The court upheld EPA’s 2019 continuation of its practice of granting exemptions to small refineries after promulgating the annual percentage standards; EPA’s decision to exclude electricity generated from renewable biomass (a form of cellulosic biofuel) from its cellulosic biofuel projection in the 2019 Rule; EPA’s determination that the 2019 volumes would not cause severe economic harm; and EPA’s decision not to obligate ethanol blenders under the RFS Program. EPA adequately explained its refusal to exercise the inadequate domestic supply waiver. EPA did not act arbitrarily in estimating that 100 million gallons of sugarcane ethanol were “reasonably attainable” for 2019. View "Growth Energy v. Environmental Protection Agency" on Justia Law

The plaintiffs are residents of Gujarat, India, an Indian governmental entity, and a nonprofit focused on fish workers' rights. IFC is an international organization of 185 member countries. The plaintiffs allege that they have been injured by operations of India's coal-fired Tata Mundra Power Plant, owned and operated by CGPL. IFC loaned funds for the project and conditioned disbursement of those funds on CGPL’s compliance with certain environmental standards. The plaintiffs allege that IFC negligently failed to ensure that the Plant’s design and operation complied with these environmental standards but nonetheless disbursed funds to CGPL. These supervisory omissions and disbursement decisions allegedly took place at IFC’s Washington, D.C. headquarters.On remand from the Supreme Court, which held that organizations such as IFC possess more limited immunity equivalent to that enjoyed by foreign governments, the district court again ruled that IFC was immune from the claims. The D.C. Circuit affirmed. United States courts lack subject-matter jurisdiction. The Foreign Sovereign Immunities Act provides that foreign states are immune from the jurisdiction of United States’ courts, 28 U.S.C. 1604; the commercial activity exception does not apply because the gravamen of the complaint is injurious activities that occurred in India. View "Jam v. International Finance Corp." on Justia Law

In 2018, the President directed the EPA to initiate rulemaking to consider expanding Reid Vapor Pressure waivers for fuel blends containing gasoline and up to 15 percent ethanol (E15), and to “increase transparency in the Renewable Identification Number (RIN) market,” a feature of the Renewable Fuel Standard (RFS) program. EPA issued a final rule in June 2019, after notice and comment, revising its regulations on fuel volatility and the RIN market. In Section II, EPA announced a new interpretation of when the limits on fuel volatility under the Clean Air Act could be waived under 42 U.S.C. 7545(h)(4), and relatedly reinterpreted the term “substantially similar” in Subsection 7545(f)(1)(A). The petroleum and ethanol industries and the Small Retailers Coalition challenged EPA’s decision to grant a fuel volatility waiver to E15.The D.C. Circuit vacated part of the E15 Rule. Section II exceeds EPA’s authority under Section 7545, which provides for a waiver: For fuel blends containing gasoline and 10 percent denatured anhydrous ethanol. The statute is straightforward in limiting waivers to 10 percent blends. A “petroleum engineer would not read instructions directing the preparation of a solution containing ‘10 percent denatured anhydrous ethanol’ to require the addition of anything other than 10 percent denatured anhydrous ethanol, and no more.” View "American Fuel & Petrochemical Manufacturers v. Environmental Protection Agency" on Justia Law

A prospective farmer sought loans for a poultry farm to be built in Caroline County, Maryland. The lender applied for a Farm Service Agency (FSA) loan guarantee. Regulations interpreting the National Environmental Policy Act (NEPA), 42 U.S.C. 4321, then required FSA to conduct an environmental assessment. FSA consulted with local, state, and federal agencies; published drafts of an environmental assessment for public comment; and considered a private environmental consulting firm's recommendations. FSA issued a “finding of no significant impact” rather than a more detailed environmental impact statement. FSA provided the loan guarantee. The farm has been operating since 2016 and houses 192,000 birds. Two years after the loan was approved, FWW, an environmental group, filed suit, alleging that the failure to prepare an environmental impact statement violated NEPA, purportedly injuring thousands of FWW members, including one who lived adjoining the farm and was subjected to loud noises, bright lights, foul odors, and flies. Another FWW member, who fishes nearby, asserted concerns about pollution and aesthetic and recreational impacts. The district court granted FSA summary judgment on the merits.The D.C. Circuit vacated and remanded for dismissal. FWW lacks standing; it failed to establish that its claims are redressable by favorable judicial action. It is not “likely, as opposed to merely speculative,” that vacatur of the loan guarantee would redress its members’ alleged injuries. The loan guarantee might have been a “substantial contributing factor” to the farm’s construction, but a new status quo existed when FWW filed suit. View "Food & Water Watch v. United States Department of Agriculture" on Justia Law

The Grand Cayman Blue Iguana is protected by the Endangered Species Act, 16 U.S.C. 1531, and by the Convention on International Trade in Endangered Species, which ban their collection, trade, and export. The Secretary of the Interior may permit “any” otherwise prohibited conduct “to enhance the propagation or survival” of a protected species. The nonprofit Phoenix Herpetological Society applied for permits to export four blue iguanas to a Danish zoo and continue its captive-bred wildlife program at its Arizona facility. For export, the Fish and Wildlife Service must find that “proposed export would not be detrimental to the survival of the species.” The Service also evaluates—under Endangered Species Act criteria—whether a permit “would be likely to reduce the threat of extinction facing the species.” The applicant bears the burden of showing that its specimens were lawfully acquired, including lawful importation of the ancestors of specimens it has bred.The D.C. Circuit affirmed the denial of the permits. The agency determined that exporting the iguanas would not be “detrimental” to the species but that exporting them would not “reduce the threat of extinction” for the species. The court concluded that its reasoning was not inconsistent. The Service appropriately acknowledged the prior permits and explained that inconsistent assertions about the parental stock raised new questions about lawful acquisition. View "Phoenix Herpetological Society, Inc. v. Fish and Wildlife Service" on Justia Law

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

In 2012, U.S. Fish and Wildlife Service scientists discovered that endangered mussels were dying on the banks of Indiana's Tippecanoe River. The Service focused on the upstream Oakdale Dam, which significantly restricts the flow of water downstream in order to generate hydroelectricity and to create a lake. The Service worked with Oakdale's operator to develop new procedures that would require the dam to release more water during droughts. After a lengthy process of interagency cooperation and public dialogue, the new procedures were approved by the Federal Energy Regulatory Commission, which has licensing authority over hydroelectric dams on federally regulated waters.Local governmental entities sought review of the Commission’s decision and the Service’s Biological Opinion upon which the Commission relied. The D.C. Circuit affirmed in part. The court rejected some challenges to the validity of the Biological Opinion, which were not raised on rehearing before the Commission. There was otherwise no error in the agencies’ expert scientific analyses. The agencies failed to adequately explain why the new dam procedures do not violate a regulation prohibiting the Service from requiring more than “minor” changes to the Commission’s proposal for dam operations. Because vacating the agencies’ decisions would subject the dam operator to contradictory legal obligations imposed by separate agencies, the court remanded to the Commission without vacatur for further proceedings. View "Shafer & Freeman Lakes Environmental Conservation Corp. v. Federal Energy Regulatory Commission" on Justia Law

The DC Circuit denied the State of New Jersey's petition for review of an EPA rule promulgated in response to New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005). In New York, environmental organizations and industrial entities challenged the revision of the Clean Air Act's new source review (NSR) program for preconstruction permitting of stationary sources of air pollution.As a threshold matter, the court concluded that challenges to the State's Article III standing lack merit. In this case, petitioner has identified two injuries, either of which suffices to establish standing to challenge the rule. On the merits, the court concluded that the record confirms that EPA engaged in reasoned decisionmaking. The court explained that EPA's obligation was to analyze the trade-off between compliance improvement and the burdens of data collection and reporting and articulate a reasoned judgment as to why any proposed additional burden would not be justifiable in terms of the likely enhancement of compliance. By adequately considering NSR enforcement concerns raised during this rulemaking and offering a reasoned explanation for its 50 percent trigger, the court concluded that EPA satisfied this obligation. On this record, petitioner otherwise fails to show that EPA's action was arbitrary or capricious. View "New Jersey v. Environmental Protection Agency" on Justia Law

In these consolidated cases, petitioners challenge four provisions of the EPA's 2015 and 2018 rules implementing the National Ambient Air Quality Standards for ozone. Petitioners challenge four features of the 2018 Rule: (1) the interprecursor trading program, as well as provisions (2) allowing states to demonstrate compliance with the Act’s reasonable further progress milestone requirements through an implementation-based method, (3) allowing states to choose between two options for the reasonable further progress baseline year, and (4) allowing nonattainment areas to use already-implemented measures to satisfy the Act's contingency measures requirements.The DC Circuit vacated two provisions—the interprecursor trading program and the interpretation of the Clean Air Act's contingency measures requirements—because they contravene the statute's unambiguous language. The court vacated another provision—the implementation of the milestone compliance demonstration requirement—because it rests on an unreasonable interpretation of the statute. Finally, the court denied the petition for review with respect to the alternative baseline years provision. Therefore, the court granted in part and denied in part the petitions for review. View "Sierra Club v. Environmental Protection Agency" on Justia Law