Justia Environmental Law Opinion Summaries

Articles Posted in US Court of Appeals for the Ninth Circuit
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The City and County of San Francisco (“San Francisco”) petitions for review of a final order of the U.S. Environmental Protection Agency (“EPA”) denying review of San Francisco’s federal National Pollutant Discharge Elimination System (“NPDES”) permit for its Oceanside combined sewer system and wastewater treatment facility (“wastewater system”). This NPDES permit, issued pursuant to the Clean Water Act of 1972 (“CWA”), 33 U.S.C. §§ 1251–1387, allows San Francisco to discharge from its wastewater system into the Pacific Ocean. San Francisco contends that EPA acted arbitrarily and capriciously.   The Ninth Circuit denied San Francisco’s petition. The panel held that the EPA had authority under the CWA to include the two general narrative prohibitions. Noting that Supreme Court precedent, this Circuit’s prior cases, and prior Environmental Appeals Board decisions support the legality and confirm the enforceability of general narrative prohibitions in permits issued under the CWA, the panel held that the two narrative provisions were consistent with the CWA and its implementing regulations. The panel further held that the EPA was not required to follow the procedures set forth in 40 C.F.R. Section 122.44(d)(1)(i)-(vii) for deriving pollutant-specific effluent limitations in imposing the general narrative provisions and that the EPA’s decision to impose the general narrative provisions was rationally connected to evidence in the record indicating that a “backstop” to the more specific provisions would be useful in protecting beneficial uses. The panel next held that the EPA had authority under its Combined Sewer Overflow Control Policy to require San Francisco to update its long-term control plan for its combined sewer overflows. View "CITY & COUNTY OF SAN FRANCISCO V. USEPA" on Justia Law

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The Forest Service developed the Project to replace trees infested with laminated root rot and bark beetles with disease-resistant ones. In May 2016, the Service contracted with T2, a private company, for logging to implement the decision. The Service issued a revised Environmental Assessment (“EA”) in July 2020 and a revised decision notice in December 2020. BMBP filed this action challenging the 2020 decision notice. The Service filed an administrative record (“AR”) in 2021.   The Ninth Circuit affirmed the district court’s summary judgment in favor of the U.S. Forest Service. The panel first addressed BMBP’s argument that the AR was incomplete. First, BMBP argued that deliberative materials were part of the “whole record” and that a privilege log was required if they were not included in the AR. The panel held that deliberative materials are generally not part of the AR absent impropriety or bad faith by the agency. Because deliberative materials are not part of the administrative record, to begin with, they are not required to be placed on a privilege log. The district court did not abuse its discretion by declining to order the production of a privilege log. Second, BMBP argued that all documents in the 2016 AR should be in the AR for this case. BMBP contended that the documents in the 2016 AR were necessary before the agency in the 2020 process because the Project was a continuation of the withdrawn one. The panel held that BMBP’s arguments failed to overcome the presumption of regularity. View "BMBP V. SHANE JEFFRIES, ET AL" on Justia Law

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The United States Forest Service oversees livestock grazing in the Colville National Forest in Eastern Washington, but it does not regulate or participate in the killing of wolves by the Department. Environmental organizations concerned about the wolves sued the Forest Service, challenging its grazing decisions. They alleged that those decisions will lead to an increase in the number of wolf attacks on livestock, which in turn will cause the Department to kill more wolves. The district court dismissed the lawsuit for lack of standing.   The Ninth Circuit affirmed. The panel explained to establish Article III standing, a plaintiff must show it has suffered an injury in fact, the injury is fairly traceable to the challenged action of the defendant, and it is likely that the injury will be redressed by a favorable decision. The Service did not dispute that Plaintiffs had a concrete interest in the welfare of gray wolves in the Colville National Forest. The key issues were whether any injury to the wolves would be caused by the allegedly unlawful conduct of the Service and whether a change in that conduct would redress that injury. Here, the claimed injury arose from the actions of a third party that is two steps removed from the Service. The Service does not kill wolves, nor does it regulate those that do. Rather, Plaintiffs object to grazing because it may lead to depredations, which may, in turn, lead the Department to consider and, in some cases, exercise its discretion to lethally remove wolves. Accordingly, the panel held that Plaintiffs lacked standing to assert their claims against the Service. View "WILDEARTH GUARDIANS, ET AL V. USFS, ET AL" on Justia Law

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Disputes over the allocation of water within the Klamath Basin in southern Oregon and northern California, particularly during the recent period of severe and prolonged drought, have prompted many lawsuits in this and other courts. In this episode, Klamath Irrigation District (“KID”) petitions for a writ of mandamus to compel the district court to remand KID’s motion for preliminary injunction to the Klamath County Circuit Court in Oregon. The motion had originally been filed by KID in that Oregon court but was removed to federal district court by the U.S. Bureau of Reclamation (“Reclamation”), a federal agency within the U.S. Department of Interior. Reclamation was identified by KID as the respondent for KID’s motion.   The Ninth Circuit denied KID’s petition for writ of mandamus. The panel considered the five factors in Bauman v. U.S. District Court, 557 F.3d 813, 817 (9th Cir. 2004), in determining whether mandamus was warranted. The panel began with the third factor—clear error as a matter of law— because it was a necessary condition for granting the writ of mandamus. The panel rejected KID’s attempt to circumvent KID II, the Tribes’ rights, and the effect of the ESA by characterizing the relief it sought as an application of the ACFFOD. The panel expressed no views on the merits of KID’s underlying motion for preliminary injunction and concluded only that the district court did not err in declining to remand the motion for preliminary injunction to the state court. The panel held that it need not consider the remaining Bauman factors because the third factor was dispositive. View "IN RE: KLAMATH IRRIGATION DISTRICT V. USDC-ORM" on Justia Law

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Plaintiff, the current owner of environmentally contaminated real property, brought CERCLA cost recovery claims against the Estates of Norma and Edgar Beard and Etch-Tek, Inc. Mayhew Center, LLC, had purchased the property from the Beards. Walnut Creek Manor, LLC, owner and operator of a retirement community adjacent to the property, sued Mayhew. The district court concluded that Mayhew’s property was the source of the tetrachloroethylene, or PCE, found on Walnut Creek Manor’s site and held Mayhew liable under CERCLA and the California Hazardous Substance Account Act for any future response costs. Mayhew sued Norma Beard, asserting cost recovery and contribution claims under CERCLA and other claims seeking to hold her liable for the judgment against it in the Walnut Creek Manor action and the contamination on both properties. The district court consolidated the two actions, and the parties settled. Mayhew defaulted on its mortgage, and the property was placed in a state court receivership. The district court concluded that the claims against the Beard Estates and Etch-Tek were barred by claim preclusion.   The Ninth Circuit reversed the district court’s dismissal, as barred by claim preclusion, of claims brought under the CERCLA and remanded for further proceedings. The panel concluded that the Mayhew/Beard action ended in a final judgment on the merits. As to the identity of claims, however, the panel concluded that claim preclusion did not apply. Mayhew’s CERCLA claim, which sought apportionment of the liability stemming from the Walnut Creek Manor action, was distinct from GP Vincent’s CERCLA claim, which sought reimbursement for costs incurred in connection with the remediation of GP Vincent’s property’s own contamination. View "GP VINCENT II V. THE ESTATE OF EDGAR BEARD, ET AL" on Justia Law

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Rosemont Copper Company (Rosemont) challenged the U.S. Fish and Wildlife Service’s (FWS) designation of certain areas in southern Arizona as critical habitat for jaguar under the Endangered Species Act (ESA). Rosemont sought to develop a copper mine and related processing facilities in the area. The Center for Biological Diversity (Center) sued after the FWS concluded that Rosemont’s proposed mine project would not destroy or adversely modify the designated critical habitat. Rosemont intervened and filed crossclaims against the FWS. The district court concluded that the FWS erred in designating occupied critical habitat because the record did not establish that jaguar occupied this area when this species was listed as endangered. But it upheld the FWS’s designation of this same area and an adjacent area as unoccupied critical habitat. The district court also granted summary judgment in favor of the Center.   The Ninth Circuit reversed the grant of summary judgment in favor of the FWS, vacated the grant of summary judgment in favor of the Center, remanded with instructions for the district court to vacate the FWS’s critical-habitat designations, and remanded to the agency for further proceedings. The panel held that because the FSW did not comply with Section 424.12(e) its designation of Unit 3 and Subunit 4b as unoccupied critical habitat was arbitrary and capricious. The panel concluded that the FWS did not provide a rational connection between the facts found and the choice made, or articulate a satisfactory explanation to justify its designations of Unit 3 and Subunit 4b as unoccupied critical habitat. View "CTR. FOR BIOLOGICAL DIVERSITY V. USFWS, ET AL" on Justia Law

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The United States Forest Service designated several thousand acres of national forest for various treatments, including commercial logging, to reduce the risk of wildfires and disease. The Forest Service invoked a categorical exclusion from National Environmental Policy Act (NEPA) review for projects in the wildland-urban interface. In Hanna Flats I, the district court granted summary judgment for Alliance for the Wild Rockies based on the reasoning that the record did not show that the Project fell within the statutory definition of the wildland-urban interface. Subsequently, the Forest Service issued a Supplement to the Decision Memo, further justifying the categorical exclusion. In Hanna Flats II, the district court issued a preliminary injunction based on the reasoning that the Forest Service could not invoke the categorical exclusion.   The Ninth Circuit vacated the district court’s grant of summary judgment in Hanna Flats I, and vacated the district court’s preliminary injunction in Hanna Flats II. The panel held that in Hanna Flats I, the district court erred in finding that Alliance’s public comments adequately put the Forest Service on notice of its eventual claim. The panel concluded that it had appellate jurisdiction. The panel held that the Forest Service sufficiently preserved its notice argument, even though it framed notice as an exhaustion requirement below and as a waiver issue on appeal. Second, the panel held that Alliance’s comments did not put the Forest Service on notice of the wildland-urban interface issue. The panel held that there was no reason to conclude that it should exercise its equitable discretion to leave an injunction in place that was wrongly granted. View "ALLIANCE FOR THE WILD ROCKIES V. CARL PETRICK, ET AL" on Justia Law

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President Obama issued a Proclamation under the Antiquities Act expanding the Cascade-Siskiyou National Monument (“Monument”) in southwestern Oregon. Proclamation 9564 (“Proclamation”). Murphy Timber Company and Murphy Timber Investments, LLC (collectively, “Murphy”) are Oregon timber businesses. Murphy owns woodlands and purchases timber harvested in western Oregon to supply its wood products manufacturing facilities. Concerned that the Proclamation imposed a new limitation on its timber supply and deleterious effects on its woodlands adjacent to the expanded Monument, Murphy sued the President, the Secretary of the Interior (“Secretary”), and the Bureau of Land Management (“BLM”) seeking declaratory and injunctive relief.   The Ninth Circuit affirmed the district court’s summary judgment in favor of the United States and intervenor environmental organizations. First, the Court has recognized constitutional challenges to presidential acts as reviewable. Second, the Court has held that actions by subordinate Executive Branch officials that extend beyond delegated statutory authority— i.e., ultra vires actions—are reviewable. The panel concluded that Murphy’s particularized allegations that the O&C Act restricts the President’s designation powers under the Antiquities Act satisfied the applicable jurisdictional standard. The panel held that the Proclamation’s exercise of Antiquities Act power was consistent with the text, history, and purpose of the O&C Act. Third, the panel held that the dissent’s concerns that the Proclamation and the O&C Act are in conflict are unsubstantiated. View "MURPHY COMPANY, ET AL V. JOSEPH BIDEN, ET AL" on Justia Law

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The Energy Policy and Conservation Act (“EPCA”), expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens. Instead of directly banning those appliances in new buildings, the City of Berkeley took a more circuitous route to the same result. It enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless. The California Restaurant Association (“CRA”), whose members include restaurateurs and chefs, challenged Berkeley’s regulation, raising an EPCA preemption claim. The district court dismissed the suit.   The Ninth Circuit reversed the district court’s dismissal. The panel held that the CRA demonstrated that (1) at least one of its members had suffered an injury in fact, that was (a) concrete and particularized and (b) actual or imminent rather than conjectural or hypothetical; (2) the injury was fairly traceable to the challenged action; and (3) it was likely, not merely speculative, that the injury would be redressed by a favorable decision. The panel held that, by its plain text and structure, the Act’s preemption provision encompasses building codes that regulate natural gas use by covered products. By preventing such appliances from using natural gas, the Berkeley building code did exactly that. The panel reversed and remanded for further proceedings. View "CRA V. CITY OF BERKELEY" on Justia Law

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The State of Alaska Department of Fish and Game brought this action against the Board and several federal officials, alleging that the changes violated the Alaska National Interest Lands Conservation Act (“ANILCA”) and the Administrative Procedure Act. Before the district court issued its decision, the Kake Hunt ended, and the district court deemed the challenge to it moot. And while this appeal was pending, the partial Unit 13 closure expired.   The Ninth Circuit reversed in part and vacated in part the district court’s decision in an action challenging the Federal Subsistence Board’s approval in 2020 of two short-term changes to hunting practices on federal public lands in Alaska, specifically (1) the Board’s opening of an emergency hunt for Intervenor, the Organized Village of Kake; and (2) the Board’s partial temporary closure of public lands in game management Unit 13 to nonsubsistence users.   The panel first held that Alaska’s claim that the Board violated ANILCA by opening the 60-day emergency Kake hunt without statutory authority was not moot because it fit within the mootness exception of being capable of repetition yet evading review. Alaska’s claim that ANICLA did not authorize the federal government to open emergency hunting seasons raised a question of first impression in this circuit and required resolution of complicated issues of statutory interpretation. Noting that the district court had not reached the merits, the panel remanded this claim to the district court. With regard to Alaska’s partial Unit 13 closure claim, the panel vacated the part of the district court’s order that addressed the claim. View "STATE OF ALASKA DEPARTMENT OF V. FEDERAL SUBSISTENCE BOARD, ET AL" on Justia Law