Justia Environmental Law Opinion Summaries

Articles Posted in US Court of Appeals for the Federal Circuit
by
The Missouri River, in its natural state, experienced annual flooding that constantly morphed its path and the topography of its floodplain, rendering it unproductive for development. The 1944 Flood Control Act (FCA) authorized the construction of dams to create a reservoir storage system. The FCA required the Army Corps of Engineers to promote navigation and flood control and, secondarily, fish and wildlife conservation. Under the 1945 Bank Stabilization and Navigation Project, the Corps altered the River’s water flow (location, volume, and rate); the floodplain was no longer dynamic by 1980. The Corps' 1979 Master Manual prioritized flood control over recreation and wildlife By 2005, 95 percent of the floodplain was developed for agricultural, urban, and industrial uses. The programs had significant environmental side effects, eliminating fish and bird habitats and interrupting wildlife breeding cycles. In 1986, Congress authorized the Corps to purchase River-adjacent land to recreate lost habitats. The Fish and Wildlife Service (FWS) placed several species on the endangered species list. The Corps did not make changes recommended by FWS, concerned about exacerbating flooding. Lawsuits followed. The district court ordered the Corps to revise its Master Manual,.The 2004 Master Manual was intended to restore the River to a more natural state.About 372 plaintiffs who operate River-adjacent farms in six states sued, alleging the 2004 Changes caused frequent and severe flooding on their farms and amounted to permanent, physical takings under the Fifth Amendment. The Claims Court determined there was a taking and awarded compensation for the diminished value of the land but dened damages for lost crops. The Federal Circuit affirmed with respect to the takings claims but vacated the denial of crop damages and a finding that the Government did not causally contribute to 2011 flooding. View "Ideker Farms, Inc. v. United States" on Justia Law

by
Wilmington charges its residential and non-residential property owners a stormwater management fee, based on an estimation of each property’s contribution to stormwater runoff. Because a precise measure of the actual amount of stormwater pollution from each property is impossible, the city devised a methodology for approximating the runoff attributable to each property based on recommendations from an engineering firm. For non-residential properties, the city assesses the fee based on a formula comprised of four variables. The U.S. Army Corps of Engineers (USACE) owns five properties in Wilmington, comprising 270 acres, classified as vacant, and used to store dredged material. USACE disputed whether the Clean Water Act (CWA), 33 U.S.C. 1323, waived its sovereign immunity with respect to this fee.The Federal Circuit affirmed a Claims Court holding that the fees are not reasonable service charges, allowable under the CWA. Wilmington did not explain how the vacant land use code corresponded to the runoff coefficients nor whether its stormwater class fairly captured variability in vacant parcels, given that only one parcel contains any paved surface. Wilmington’s methodology, as applied, led to charges that are not a fair approximation of the properties’ proportionate contribution to stormwater pollution. View "City of Wilmington, Delaware v. United States" on Justia Law

by
In 1942-1943, the government contracted with the Oil Companies to rapidly expand aviation gas (avgas) production facilities and sell vast quantities of avgas to the government with an artificially low profit margin. The government assumed certain risks, agreeing to reimburse “any new or additional taxes, fees, or charges” which the Companies “may be required by any municipal, state, or federal law ... to collect or pay by reason of the production, manufacture, sale or delivery of the [avgas].” The increased production led to increased amounts of acid waste that overwhelmed existing reprocessing facilities. The Companies contracted to dispose of the acid waste at the McColl site in Fullerton, California.In 1991, the United States and California sued under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601, seeking to require the Companies to pay cleanup costs. The Ninth Circuit held that the government was 100% liable for the cost of cleaning up the benzol waste (about 5.5% of the waste) at the McColl site. The Companies have borne nearly all of the clean-up costs incurred since 1994; they submitted a contract termination claim, seeking reimbursement. The Claims Court ultimately found the government liable for all cleanup costs at the McColl site and awarded the Companies $99,509,847.32 for costs incurred through November 2015. The government paid. Remediation at McColl remains ongoing. The Companies sought damages incurred after November 2015. The Federal Circuit affirmed that the government is liable for those costs plus interest, rejecting arguments that res judicata bars the claims and that the Claims Court did not have jurisdiction under the Contract Settlement Act of 1944. View "Shell Oil Co. v. United States" on Justia Law

by
Taylor Energy leased and operated Gulf of Mexico oil and gas properties, on the Outer Continental Shelf, offshore Louisiana. In 2004, Hurricane Ivan destroyed those operations, causing oil leaks. The Outer Continental Shelf Lands Act, the Clean Water Act, and the Oil Pollution Act required Taylor to decommission the site and stop the leaks. Taylor and the Department of the Interior developed a plan. Interior approved Taylor’s assignments of its leases to third parties with conditions requiring financial assurances. Three agreements addressed how Taylor would fund a trust account and how Interior would disburse payments. Taylor began decommissioning work. In 2009, Taylor proposed that Taylor “make the full final deposit into the trust account,” without any offsets, and retain all insurance proceeds. Interior rejected Taylor’s proposal. Taylor continued the work. In 2011, Taylor requested reimbursement from the trust account for rig downtime costs. Interior denied the request. In 2018, the Interior Board of Land Appeals (IBLA) affirmed Interior’s 2009 and 2011 Decisions.Taylor filed suit in the Claims Court, asserting contract claims. The Federal Circuit affirmed the dismissal of the suit, rejecting “Taylor’s attempt to disguise its regulatory obligations as contractual ones,” and stating an IBLA decision must be appealed to a district court.In 2018, Taylor filed suit in a Louisiana district court, seeking review of the IBLA’s 2018 decision and filed a second complaint in the Claims Court, alleging breach of contract. On Taylor's motion, the district court transferred the case, citing the Tucker Act. The Federal Circuit reversed. The Claims Court does not have subject matter jurisdiction over this case. Taylor is challenging the IBLA Decision and must do so in district court under the APA. View "Taylor Energy Co., L.L.C. v. Department of the Interior" on Justia Law

by
Taylor's leases for the Outer Continental Shelf (OCS), set to expire in 2007, incorporated Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1301, regulations. They required Taylor to leave the leased area “in a manner satisfactory to the [Regional] Director.” Taylor drilled 28 wells, each connected to an oil platform. In 2004, Hurricane Ivan toppled Taylor’s platform, rendering the wells inoperable. Taylor discovered leaking oil but took no action. In 2007, Taylor was ordered to decommission the wells within one year. Taylor sought extensions. The government required Taylor to set aside funds for its decommissioning obligations. For Taylor to receive reimbursement, the government must confirm the work was conducted “in material compliance with all applicable federal laws and . . . regulations" and with the Leases. The resulting Trust Agreement states that it “shall be governed by and construed in accordance with the laws of" Louisiana. Taylor attempted to fulfill its obligations. The government approved a departure from certain standards but ultimately refused to relieve Taylor of its responsibilities.Taylor filed claims involving Louisiana state law: breach of the Trust Agreement; request for dissolution of the trust account based on impossibility of performance; request for reformation for mutual error; and breach of the duty of good faith and fair dealing. The Federal Circuit affirmed the dismissal of the complaint. OCSLA makes federal law exclusive in its regulation of the OCS. To the extent federal law applies to a particular issue, state law is inapplicable. OCSLA regulations address the arguments underlying Taylor’s contract claims, so Louisiana state law cannot be adopted as surrogate law. View "Taylor Energy Co. LLC v. United States" on Justia Law

by
The Federal Highway Administration (FHA) issued a solicitation for the "Deweyville" project, consisting of reconstructing approximately 12 miles of road running through Alaska's Tongass National Forest. The FHA provided a Waste Site Report, which identified sites that a contractor could use to dispose of waste materials and provided access to the “Categorical Exclusion,” prepared under the National Environmental Policy Act, 42 U.S.C. 4321–70.2, which stated that waste sites are expected to be sourced at existing quarries identified in the Waste Site Report. The solicitation placed responsibility for licenses and permits on the contractor, including Clean Water Act permits, 33 U.S.C. 1344, and purchasing wetland mitigation credits. Kiewit’s successful bid included approximately $1,000,000 for wetland mitigation fees. Kiewit requested an equitable adjustment for the cost of purchasing mitigation credits for the wetlands it encountered at government-designated waste sites. The Claims Court upheld the denial of that request.The Federal Circuit reversed. The contract documents dictate that, unless a contractor decided to expand the government-designated waste sites, “[n]o further analysis of the environmental impacts of” such sites would be necessary. That the FHA, during the NEPA process, had already assessed the project’s effects on wetlands bolstered Kiewit’s reasonable conclusion that it would not need to conduct further wetlands analysis at designated waste disposal areas. Kiewit reasonably interpreted the documents to mean what they say—that no further environmental impacts analysis would be required if a contractor chose to dispose of waste at government-designated sites. The FHA effected a constructive contract change when it required Kiewit to perform wetland delineation at those sites. View "Kiewit Infrastructure West Co. v. United States" on Justia Law

by
Water levels in Eagle Lake, near Vicksburg, are controlled by the Muddy Bayou Control Structure, part of the Army Corps of Engineers’ Mississippi River flood control program. Eagle Lake's predictable water levels allowed the plaintiffs to build piers, boathouses, and docks. In 2010, the Corps determined that “sand boils” threatened the stability of the nearby Mississippi River Mainline Levee, a component of the same flood-control program. Unusually wet weather in 2011 exacerbated the problem. The Corps declared an emergency, finding that the rise in nearby water levels threatened the structural integrity of the levee and “that the likelihood of breach was over 95%.” The Corps decided to flood Eagle Lake to reduce pressures along the levee. Because of that action, the levee did not breach. A breach would have resulted in widespread flooding affecting “about a million acres and possibly between four thousand to six thousand homes and businesses.” The damage to the plaintiffs’ properties would have exceeded the damage caused by raising the lake level. The plaintiffs sued, seeking compensation. The Federal Circuit reversed the Claims Court’s finding that the government was liable and award of $168,000 in compensatory damages. The relative benefits doctrine bars liability. The plaintiffs were better off as a result of the Corps’ actions. If the government had not raised the water level, the levee would almost certainly have breached, and the plaintiffs would have suffered more damage. View "Alford v. United States" on Justia Law

by
GIP purchased property from a steel mill’s bankruptcy estate, omitting the “Eastern Excluded Property” (EEP). GIP purchased some personal property located on the EEP, which contains two piles comprising slag (a steel manufacturing byproduct), kish (a byproduct of a blast furnace operation), and scrap. Each pile occupied more than 10 acres and was more than 80 feet high. GIP's "Itemization of Excluded Item from Sale” referred to: “All by-products of production other than kish and 420,000 cubic yards of slag” on the EEP “with a reasonable period of time to remove such items.” The EPA began investigating contaminants leaching from the piles. While GIP was negotiating for the separation of recoverable metals, the EPA decided to reduce the size of the piles. In 2009-2013, EPA contractors recovered and sold 245,890 tons of material and recovered and used 92,500 cubic yards of slag onsite for environmental remediation; they processed approximately 50% of the piles, spending about $14.5 million, about a million more than income from sales. The EPA compacted the materials to minimize leachate, leaving further remediation to state environmental authorities. GIP did not attempt its own recovery operation during the EPA remediation.GIP sued, alleging “takings” of the slag, kish, and scrap. The trial court awarded GIP $755,494 for the slag but awarded zero damages for the kish and scrap. The Federal Circuit vacated in part. GIP had no claim to any particular subset of slag. The trial court erred in finding that the EPA somehow prevented GIP from recovering its full allotment of slag; GIP cannot establish a cognizable property interest in the slag that was recovered. The court affirmed in part. GIP’s unreliable calculations left the trial court without competent evidence relating to a critical component of the damages calculation with respect to the kish and scrap. View "Gadsden Industrial Park, LLC v. United States" on Justia Law

by
Syngenta sued Willowood, a Hong Kong company that sells fungicide to its Oregon-based affiliate, for infringement of patents directed to a fungicide compound and its manufacturing processes and infringement of copyrights for detailed product labels that provide directions for use, storage, and disposal, plus first-aid instructions and environmental, physical, and chemical hazard warnings. The district court dismissed the copyright claims as precluded by the Federal Insecticide Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. 135 and granted-in-part Syngenta’s summary judgment motion with respect to patent infringement. After a jury trial, the court entered a defense judgment on the patent claims. The Federal Circuit affirmed-in-part, reversed-in-part, and vacated in part. The district court did not provide an adequate analysis of the potential conflict between FIFRA and the Copyright Act. Because FIFRA does not, on its face, require a “me-too” registrant to copy the label of a registered product, FIFRA only conflicts with the Copyright Act to the extent that some particular element of Syngenta’s label is both protected under copyright doctrines and necessary for the expedited approval of Willowood’s generic pesticide. The court erred by imposing a single-entity requirement on the performance of a patented process under 35 U.S.C. 271(g); practicing a patented process abroad does not trigger liability under section 271(g) in the same manner that practicing a patented process domestically does under section 271(a). View "Syngenta Crop Protection, LLC v. Willowood, LLC" on Justia Law

by
The Klamath River Basin Reclamation Project straddles the Oregon-California border and provides water to hundreds of farms. The Project is managed by the Bureau of Reclamation. In 2001, the Bureau temporarily halted water delivery to farms and water districts in order to comply with its tribal trust obligations under the Endangered Species Act, 16 U.S.C. 1531. Plaintiffs alleged that action amounted to a taking without compensation, impaired their rights under the Klamath River Basin Compact, and caused the breach of water delivery contracts. The Claims Court rejected the suit on summary judgment. On remand, the Claims Court dismissed the breach of contract claims, determined that the takings claims should be analyzed as “physical takings,” and held a trial. The districts had been voluntarily dismissed as plaintiffs. As to the individual farmers, the Claims Court held that the Bureau’s actions did not amount to a taking and did not violate the Compact because the rights reserved for tribal fishing were superior. The Federal Circuit affirmed, finding the plaintiffs’ state water rights subordinate to the federal tribal rights, which were recognized in an 1864 treaty. The Bureau acted reasonably to preserve water levels necessary to avoid endangering fish. View "Baley v. United States" on Justia Law