Justia Environmental Law Opinion Summaries

Articles Posted in US Court of Appeals for the Fifth Circuit
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Petitioners filed a petition for review challenging the EPA's 2017 Rule, "Promulgation of Air Quality Implementation Plans; State of Texas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan." Petitioners also sought reconsideration of the 2017 Rule, contending that the 2017 Rule was adopted without following notice and comment requirements and that it was unlawful, arbitrary, and capricious in various ways. Petitioners and the EPA then filed a joint motion requesting the petition for review of the 2017 rule be held in abeyance pending the EPA's resolution of the petition for reconsideration and the completion of any reconsideration process. The Fifth Circuit granted the motion. The EPA subsequently issued the 2020 Rule. Petitioners sought review of the 2020 Rule and filed a motion requesting the D.C. Circuit to confirm that venue was proper in that court. Respondent-Intervenors jointly moved for reconsideration of an order denying without prejudice their motion to confirm venue and order transferring this consolidated proceeding to the Court of Appeals for the D.C. Circuit.The Fifth Circuit explained that it has employed a "first-filed" rule, much like the rule set forth in 28 U.S.C. 2112, when faced with a competing challenge to the same administrative action in another court of appeals. The court concluded that the 2020 Rule should be the agency action relied upon for purposes of section 2112 and the "first-filed" rule. Because petitioners first filed their challenge to the 2020 Rule in the D.C. Circuit, that court should be the first to determine the venue question. Finally, Respondent-Intervenors can show no prejudice from the court's orders consolidating and transferring the consolidated cases. Therefore, the court denied the motion for reconsideration. View "National Parks Conservation Ass'n v. EPA" on Justia Law

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The Fifth Circuit denied petitions for review of the Service's incidental take statement and biological opinion in connection with the construction and operation of a liquefied natural gas terminal in south Texas (the Annova project). The court held that the Service complied with its obligations under the Endangered Species Act in authorizing the harm or harassment of one ocelot or jaguarundi and in determining that the proposed project was not likely to jeopardize the continued existence of either cat.In this case, the incidental take statement is not arbitrary and capricious because it clearly specifies the anticipated take and specifies the amount or extent of the anticipated take. Furthermore, the reinitiation trigger is clear and enforceable. Finally, the failure to include the reasonable and prudent measures word-for-word in the terms and conditions does not render the incidental take statement arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. The court explained that the no-jeopardy conclusion is not arbitrary and capricious where the Service's conclusion was reached after evaluating both the direct and indirect effects of an action on the cats. The court rejected petitioners' challenge to the opinion's mitigation measures, namely the conservation of acreage, as arbitrary and capricious. View "Sierra Club v. Department of Interior" on Justia Law

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The Fifth Circuit denied petitions for review of the Service's incidental take statement and biological opinion in connection with the construction and operation of a liquefied natural gas terminal in south Texas (the Rio Grande project). The court held that the Service complied with its obligations under the Endangered Species Act in authorizing the harm or harassment of one ocelot or jaguarundi and in determining that the proposed project was not likely to jeopardize the continued existence of either cat.In this case, the incidental take statement is not arbitrary and capricious because it clearly specifies the anticipated take and specifies the amount or extent of the anticipated take. Furthermore, the reinitiation trigger is clear and enforceable. Finally, the failure to include the reasonable and prudent measures word-for-word in the terms and conditions does not render the incidental take statement arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. The court explained that the no-jeopardy conclusion is not arbitrary and capricious where the Service's conclusion was reached after evaluating both the direct and indirect effects of an action on the cats. View "Sierra Club v. Department of Interior" on Justia Law

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Since 2011, Jonesboro’s wastewater system has spewed sewage onto Stringer’s property and into her home during heavy rains. Stringer repeatedly complained to the town and its mayor, then brought a “citizen suit” under the Clean Water Act (CWA), 33 U.S.C. 1365, with constitutional claims under 42 U.S.C. 1983 for the uncompensated taking of her property and the mayor’s retaliation. Stringer ran against the mayor in 2014 and claims he retaliated by ignoring her pleas, getting the town to sue her frivolously, and refusing to provide sandbags. The Louisiana Departments of Health (LDOH) and Environmental Quality (LDEQ) have long known about the problems. LDEQ sent the town warning letters and issued compliance orders about unauthorized discharges, including those afflicting Stringer. LDOH issued a compliance order about the discharges on Stringer’s property, imposed mandatory ameliorative measures, and assessed a daily fine. The district court dismissed, finding that the CWA prohibits such suits when a state is addressing the problem through “comparable” state law and finding her section 1983 claims untimely under Louisiana’s one-year prescriptive period. The Fifth Circuit affirmed as to the section 1983 claims. Stringer was long aware of the underlying facts and failed to sue within a year. The Fifth Circuit reversed in part. The enforcement action to which the court pointed—the state health department’s enforcement of the sanitary code—is not “comparable” to the CWA under circuit precedent. View "Stringer v. Town of Jonesboro" on Justia Law

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The Fifth Circuit denied petitions for review by the State of Texas and Sierra Club, challenging the EPA's action designating Bexar County, Texas as in nonattainment and three neighboring counties as in attainment with the 2015 Ozone National Ambient Air Quality Standards (NAAQS).After determining that venue is proper in the Fifth Circuit, the court held that the relevant statutory language in the Clean Air Act grants EPA discretionary authority to make the changes it "deems necessary." The court also held that EPA's interpretation and implementation of the statute is reasonable. In this case, because Bexar County was not compliant with the 2015 NAAQS when EPA promulgated its designation, the court concluded that the Clean Air Act and the Administrative Procedure Act allowed the change. In regard to the three counties, the court concluded that EPA has not arbitrarily reversed its interpretation of "contribution" and EPA did not fail to articulate a rational connection between the facts in the record and its decision not to designate the disputed counties as nonattainment. In this case, EPA used a permissible, multi-factor analysis to determine that the contributions of Atascosa, Comal, and Guadalupe Counties to Bexar County's ambient ozone levels were insufficient to merit a nonattainment designation. View "Texas v. Environmental Protection Agency" on Justia Law

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The Fifth Circuit denied the petition for rehearing, withdrew its prior opinion, and substituted the following opinion.After ExxonMobil sought a revised Title V permit under the Clean Air Act concerning an expansion of a plant in Baytown, Texas, petitioners asked EPA to object on the grounds that the underlying Title I preconstruction permit allowing the expansion was invalid. EPA rejected petitioners' arguments and declined to object.The Fifth Circuit denied the petition for review, holding that EPA's interpretation that Title V permitting is not the appropriate vehicle for reexamining the substantive validity of underlying Title I preconstruction permits is independently persuasive. Therefore, EPA's interpretation is entitled to the mild form of deference recognized by Skidmore v. Swift & Co., 323 U.S. 134 (1944). View "Environmental Integrity Project v. Environmental Protection Agency" on Justia Law

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A federal agency may not create an "aquaculture," or fish farming, regime in the Gulf of Mexico pursuant to the Magnuson-Stevens Fishery Conservation and Management Act of 1976.The Fifth Circuit affirmed the district court's ruling that the Fisheries' challenged aquaculture rule exceeds the agency's statutory authority. The court explained that the Act neither says nor suggests that the agency may regulate aquaculture; the court rejected the agency's interpretation of Congress's silence on the matter as an invitation; explained that Congress does not delegate authority merely by not withholding it; and the court rejected the agency's argument that the Act's definition of "fishing" gives it authority to regulate aquaculture. The court noted that if anyone is to expand the forty-year-old Magnuson-Stevens Act to reach aquaculture for the first time, it must be Congress. View "Gulf Fishermens Ass'n v. National Marine Fisheries Service" on Justia Law

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The Fifth Circuit dismissed, based on lack of Article III standing, a petition for review of the TCEQ's decision granting air permits to Rio Grande LNG. Petitioners, two membership organizations, ask the court to vacate the agency's decision and order either a contested-case hearing before the SOAH or the denial of the permits.The court held that petitioners have not satisfied their burden to show their members' injuries in fact. In this case, petitioners' claims -- that their individual members who live, work, and drive within a roughly fourteen-mile radius of the proposed facility will suffer an increased risk of harm that those living further away will not suffer -- are too generalized and petitioners have not produced enough evidence to show an actual or imminent harm. The court also held that, even if petitioners' members did identify specific risks, there is no evidence of the extent to which those risks would be increased for those members by the expected emissions. Furthermore, petitioners' claim that the proposed facility would cause ozone levels to be very close to violating the federally mandated levels failed to identify what specific health risks their members expect to suffer. Finally, to the extent petitioners argue that the denial of a contested-case hearing is a procedural harm separate and distinct from the harms they expect to be caused by the proposed facility, the court rejected that alleged injury as a basis for standing. View "Shrimpers and Fishermen of the RGV v. Texas Commission on Environmental Quality" on Justia Law

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Plaintiffs filed a citizen suit against Exxon, seeking to recover from more than 16,000 Clean Air Act violations arising from the Baytown, Texas complex.The Fifth Circuit held that Clean Air Act plaintiffs must prove standing for each violation in support of their claims. The court held that the evidence supports the district court's findings of injury, traceability, and redressability for a number of the violations. However, a limited remand is needed for the district court to determine what other violations could have contributed to plaintiffs' members' injuries and then to tabulate its findings. The court noted that it does not require line-by-line findings, but that the district court may group violations. Furthermore, plaintiffs have standing for at least some of the violations that Exxon asserts affirmative defenses against. The court remanded for findings on whether Exxon proved its Act of God defense for the relatively small number of violations occurring during Hurricane Ike. The court affirmed the district court's rejection of Exxon's Rule 52(b) motion, because Exxon failed to meet its burden in supporting its no-fault defenses by failing to identify evidence establishing that it met the relevant criteria for each individual emissions event. Because the court remanded for the district court to determine the number of violations for which plaintiffs have standing, as well as whether Exxon proved its Act of God defense for any violations, the court will also have to reassess the penalties. View "Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp." on Justia Law

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Original petitioner filed suit under the Administrative Procedure Act (APA), challenging FWS's negative 90-day finding regarding the delisting of the Bone Cave harvestman arachnid as arbitrary and capricious. While the case was pending, the district court allowed intervening plaintiffs to separately argue that federal regulation of the purely intrastate species is unconstitutional because it exceeds Congress's power under the Commerce and Necessary and Proper Clauses. The district court subsequently rejected the intervening plaintiffs' arguments, but granted summary judgment to the original plaintiffs. FWS's negative 90-day finding was vacated and the FWS then issued a positive 90-day finding, beginning a 12-month review of whether the Bone Cave harvestman should be delisted.The Fifth Circuit dismissed the intervenor plaintiffs' appeal of the denial of their motion for summary judgment, holding that the appeal is alternatively moot or barred by sovereign immunity. Therefore, the court lacked jurisdiction to resolve the appeal. View "American Stewards of Liberty v. Department of Interior" on Justia Law