Justia Environmental Law Opinion Summaries

Articles Posted in US Court of Appeals for the Fifth Circuit
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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

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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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The General Land Office challenged both the Service's listing of the Golden-Cheeked Warbler as an endangered species in 1990 and, about 26 years later, the Service's denial of a petition seeking to delist the Warbler.The Fifth Circuit held that the General Land Office's challenge to the Service's decision to list was untimely. The court held that the Service did not violate the National Environmental Policy Act or its implementing regulations when it declined to delist the Warbler, and thus the district court correctly granted the Service's motion to dismiss.However, the court agreed with the General Land Office that the Service applied the incorrect heightened standard when reviewing the delisting petition. Therefore, the court held that the Service's decision denying the delisting petition was arbitrary and capricious, and vacated the decision, remanding for further proceedings. Accordingly, the court affirmed in part, reversed in part, vacated in part, and remanded. View "General Land Office of the State of Texas v. United States Department of the Interior" on Justia Law

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Petitioners challenged EPA's 2017 Final Rule approving Louisiana's state implementation plan (SIP) for controlling regional haze. Environmental Petitioners contend that Louisiana's SIP does too little to curb regional haze at federally protected areas. Industry Petitioners contend that Louisiana's SIP overestimates the amount of pollution that their power plants produce.The Fifth Circuit denied Industry Petitioners' petition, holding that EPA did not act arbitrarily and capriciously in relying on the CALPUFF model to approve Louisiana's "subject to BART" determinations. The court applied deferential standards of review and held that, although Environmental Petitioners' challenge presented a closer question, the court denied the petition because EPA's approval of Louisiana's SIP was not arbitrary and capricious. Even though the court noted that Louisiana’s explanation of its BART determination for the Nelson power plant omitted two of the five mandatory factors and failed to compare—or even set out—the numbers for the costs and benefits of the control options Louisiana considered. Furthermore, Louisiana failed to explain how its decision accounted for the EPA-submitted analyses that pointed out substantial flaws in other analyses in the administrative record. View "Sierra Club v. EPA" on Justia Law

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The Fifth Circuit dismissed a petition for review of the EPA's issuance of a general permit for various oil and gas operations to discharge pollutants in federal waters in parts of the Gulf of Mexico. The court held that petitioners lacked associational standing to bring their challenges, because the declarations from petitioners' members either inadequately satisfied the geographic-nexus requirement or failed to aver an injury in fact. Furthermore, even if petitioners could show injury, they could not demonstrate traceability. In this case, petitioners failed to show a causal connection between the EPA's allegedly unlawful conduct and their members' asserted injuries. View "Center for Biological Diversity v. EPA" on Justia Law

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This case concerned the EPA's review and decision to revise the earliest compliance dates for new, stringent best available technology economically achievable (BAT) effluent limitations and pretreatment standards for existing source (PSES) concerning two waste streams from steam electric power generating point sources that had previously been promulgated in a 2015 Rule.The Fifth Circuit denied the petition for review challenging the EPA's decision to postpone for two years only the earliest compliance dates mandated by the 2015 Rule for flue gas desulfurization (FGD) wastewater and bottom ash transport water. The court held that the EPA had statutory authority to pass this tailored rule and explained its decision adequately. The court also held that the EPA's decision was reasonable, and was neither arbitrary nor capricious. View "Clean Water Action v. EPA" on Justia Law