Justia Environmental Law Opinion Summaries

The emergency military construction authority provided by 10 U.S.C. 2808 does not authorize eleven border wall construction projects on the southern border of the United States.The Organizational Plaintiffs and the State Plaintiffs filed separate actions challenging the Federal Defendants' anticipated diversion of federal funds to fund border wall construction pursuant to various statutory authorities, including Section 2808. The Federal Defendants timely appealed the district court’s grant of summary judgment and declaratory relief to Sierra Club and the States and the grant of a permanent injunction to Sierra Club. The States timely cross-appealed the denial of their request for a permanent injunction.The Ninth Circuit held that the States and Sierra Club both have Article III standing and a cause of action to challenge the Federal Defendants' border wall construction projects; Section 2808 did not authorize the challenged construction where the projects are neither necessary to support the use of the armed forces nor are they military construction projects; and the district court did not abuse its discretion in either granting a permanent injunction to Sierra Club or in denying a separate permanent injunction to the States. Although the panel recognized that in times of national emergency the panel generally owes great deference to the decisions of the Executive, the particular circumstances of this case require it to take seriously the limitations of the text of Section 2808 and to hold the Executive to them. The panel stated that where, as here, Congress has clung to this power with both hands—by withholding funding for border wall construction at great effort and cost and by attempting to terminate the existence of a national emergency on the southern border on two separate occasions, with a majority vote by both houses—the panel can neither pry it from Congress's grasp. View "Sierra Club v. Trump" on Justia Law

Plaintiffs filed suit against Sterling under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) to recover response costs incurred at a Superfund Site. Sterling filed a counterclaim, arguing that the United States was itself liable for response costs under CERCLA as a prior "operator" of the Lava Cap Mine during World War II.The Ninth Circuit affirmed the district court's judgment finding Sterling liable for response costs and that plaintiffs could recover all response costs. The court held that Sterling is subject to CERCLA liability as a prior operator of the Mine and that the United States is not subject to CERCLA liability as a prior operator. The court also held that the interim remedy selected by the EPA to supply non-contaminated drinking water at the Site was not arbitrary and capricious or otherwise not in accordance with law. Furthermore, Sterling failed to overcome the presumption of consistency with the National Contingency Plan. View "United States v. Sterling Centrecorp Inc." on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment in favor of the Service in an action brought by Pacific Choice challenging the agency's rule imposing a quota system for the Pacific non-whiting groundwater fishery. Pacific Choice alleged that the Service's 2.7 percent maximum share and its "control" rule exceeded its authority under the Magnuson-Stevens Fishery Conservation and Management Act of 1976 and violated the Administrative Procedure Act (APA).After determining that Pacific Choice's suit was timely, the panel held that the Service did not act arbitrarily or capriciously in setting the 2.7 percent maximum share. The panel rejected Pacific Choice's contention that the Service failed to consider market power and failed to articulate the methods by which, and the purposes for which, it set the maximum share percent. The panel also rejected Pacific Choice's statutory and APA challenges to the Service's control rule. The panel applied Chevron deference to the Service's interpretation of "hold, acquire, or use" to include "control," as well as to the Service's definition of "control," and held that nothing in the statute unambiguously foreclosed the Service's approach. View "Pacific Choice Seafood Co. v. Ross" on Justia Law

TWA challenged the Navy's decision to relocate troops to Guam and construct training facilities on the Commonwealth of the Northern Mariana Islands (CNMI). The U.S.-Japan Alliance Agreement was entered into by the United States and Japan to adapt their alliance to the changing regional and global security environment, resulting in the determination to move Marine troops from Okinawa to Guam.The Ninth Circuit affirmed the district court's grant of summary judgment in favor of the Navy and rejected TWA's procedural challenges under the National Environmental Policy Act (NEPA), holding that the Marine relocation and the placing of training facilities on Tinian are not connected for the purposes of an environmental impact statement (EIS). Furthermore, the Navy did not violate NEPA's mandate by deferring consideration of the cumulative impacts to a future EIS. The panel also held that TWA's remaining claim—that the Navy failed to consider stationing alternatives beyond Guam and the CNMI for Marines relocating out of Okinawa—also fails based on lack of standing because TWA's claim is not redressable by the judicial branch. Therefore, the panel affirmed the dismissal of this claim. Finally, the district court did not abuse its discretion in denying TWA's request for leave to amend. View "Tinian Women Ass'n v. United States Department of the Navy" on Justia Law

After Asarco entered into a settlement agreement and consent decree with the government, it filed a contribution action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) against Atlantic Richfield. The district court entered judgment in favor of Asarco, finding that Asarco had incurred $111.4 million in necessary response costs for the cleanup of a Superfund Site and that Atlantic Richfield was responsible for twenty-five percent of that sum.The Ninth Circuit held that the district court erred in its determination of the necessary response costs incurred by Asarco by including speculative future costs in its tabulation of necessary response costs eligible for contribution under CERCLA. However, the panel held that the district court did not err in allocating responsibility for twenty-five percent of the response costs to Atlantic Richfield. Accordingly, the panel vacated and remanded in part, and affirmed in part. View "ASARCO LLC v. Atlantic Richfield Company, LLC" on Justia Law

Nanouk uses her 160-acre Alaska Native allotment for traditional subsistence activities. In the 1980s, Nanouk built a small cabin, which she and her family reached by using a trail that runs from the main road through the U.S. Air Force North River Radio Relay Station, which closed in 1978. In 1981, the General Accounting Office criticized the Air Force’s failure to maintain shuttered sites, including North River, which contained hazardous chemicals. The Air Force and the Army Corps of Engineers began remediation, removing 500 gallons of transformer oil containing PCBs and PCB-contaminated soil. Surveys taken in 1987 and 1989 revealed that 6,700 cubic yards of contaminated soil remained. The Air Force and the Corps released a new plan in 2001; clean-up resumed. The trail that Nanouk used ran through a “hot spot” where PCB-contaminated soil was picked up by her vehicles. Nanouk did not learn about the PCBs on her property until 2003 when she reported a strong chemical odor. The Air Force then undertook extensive environmental remediation at the Station and Nanouk’s allotment. Nanouk sued, alleging trespass and nuisance. She and several family members have experienced serious health problems.The Ninth Circuit vacated the dismissal of her suit. The Federal Tort Claims Act's discretionary exception barred claims predicated on two of the acts she challenged as negligent--the government’s alleged failure to supervise contractors during the Station’s operation, and its abandonment of the property between the 1978 closure and 1990. The government did not establish that the exception barred the claims relating to the failure to identify and remediate the hot spot in a timely manner after 1990. View "Nanouk v. United States" on Justia Law

The Ninth Circuit reversed the district court's grant of summary judgment for defendants in an action seeking contribution for cleanup costs under Section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA requires parties to pursue contribution for their cleanup costs within three years of the "entry of a judicially approved settlement with respect to such costs."The panel held that, to trigger CERCLA's limitations period, a settlement must impose costs on the party seeking contribution. The panel applied a straightforward interpretation of the limitations provision and explained that, since a party can obtain contribution only for costs incurred in excess of its own liability, an action under Section 113(f)(1) is necessarily for another's share of the costs faced or imposed under Sections 106 or 107(a). Accordingly, a settlement starts the limitations period on a Section 113(f)(1) claim for response costs only if it imposed those costs and serves as the basis for seeking contribution. In this case, it was inaccurate to characterize the 2007 settlement as covering the costs at issue and the 2007 settlement did not extinguish OPOG's and the APC defendants' common liability to the United States. Therefore, the agreement did not start the limitations period. Finally, the panel held that OPOG is not judicially estopped from seeking contribution. View "Arconic, Inc. v. APC Investment Co." on Justia Law

The Ninth Circuit reversed the district court's order denying EPIC's request for a preliminary injunction, challenging the Forest Service's approval of the Ranch Fire Roadside Hazard Tree Project in Northern California. In this case, rather than preparing an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) for the Project, the Forest Service relied on a categorical exclusion (CE) for road repair and maintenance in 36 C.F.R. 220.6(d)(4).The panel held that EPIC will likely succeed on the merits of its claim that an extensive commercial logging project that includes felling large, partially burned merchantable trees is not considered "repair and maintenance" within the meaning of section 220.6(d)(4). The panel also held that EPIC will suffer irreparable, though limited harm. Furthermore, EPIC has demonstrated that the balance of the equities and the public interest weigh in its favor. Accordingly, the panel remanded for further proceedings. View "Environmental Protection Information Center v. Carlson" on Justia Law

Petitioners filed suit alleging that the EPA's decisions to register Enlist Duo—a pesticide designed to kill weeds on corn, soybean, and cotton fields—in 2014, 2015, and 2017, violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA).After determining that the petitions for review were timely and that petitioners have Article III standing, the Ninth Circuit held that NRDC waived any argument that EPA applied the incorrect standard when it registered Enlist Duo in 2014. Even absent waiver, the panel held that the NRDC's argument that the EPA applied the wrong standard is not persuasive. The panel also held that, although the EPA concedes that it cited the wrong standard, any error is harmless because the standard for unconditional registration is higher, not lower, than the standard for conditional registration. Furthermore, the panel held that substantial evidence supports the EPA's factual findings for its 2014, 2015, and 2017 registration decisions. In regard to the ESA claims, the panel held that the EPA's "no effect" findings, decision about the scope of the "action area," and "critical habitat" determinations survive deferential review. Accordingly, the court denied NFFC's petition for review; granted in part and denied in part NRDC's petition for review; and remanded without vacatur. View "National Family Farm Coalition v. Environmental Protection Agency" on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment for federal agencies and officials and ConocoPhillips in an action brought under the National Environmental Policy Act (NEPA) challenging the BLM's 2017 offer and sale of oil and gas leases in the National Petroleum Reserve-Alaska.The panel first held that plaintiffs' actions are not entirely time barred by the Naval Petroleum Reserves Production Act (NPRPA). To the extent plaintiffs argued that the 2017 lease sale was a distinct federal action requiring a tiered or stand-alone NEPA analysis, the panel found that their challenge is justiciable. Because the panel can reasonably construe the defined scope of the 2012 environmental impact statement (EIS) to include the 2017 lease sale, the panel deferred to BLM's position that the 2012 EIS was the EIS for the 2017 lease sale. Therefore, the panel found that the BLM met the NEPA requirement for the 2017 lease sale of preparing at least an initial EIS, any challenge to the adequacy of which is now time barred. Furthermore, although plaintiffs alleged significant new information and circumstances known to BLM before the 2017 lease sale, the panel stated that the appropriate rubric for considering these allegations—given the existence of an initial EIS—is supplementation, and plaintiffs have waived any supplementation claim. View "Northern Alaska Environmental Center v. Department of the Interior" on Justia Law