Justia Environmental Law Opinion Summaries

TVA, wholly owned by the U.S. government, 16 U.S.C. 831, operates Tennessee's Kingston Fossil Fuel Plant. A containment dike that retained coal-ash sludge failed in 2008, causing 5.4 million cubic yards of coal-ash sludge to spill to adjacent property. TVA and the EPA responded under the National Oil and Hazardous Substances Pollution Contingency Plan. TVA, as the lead agency, engaged Jacobs as its “prime contractor providing project planning, management, and oversight,” including evaluating potential hazards to human health and safety. Jacobs submitted a Safety and Health Plan. More than 60 of Jacobs’s former employees sued, claiming that they were exposed to coal ash and particulate “fly ash” during this cleanup. The suits were consolidated.The district court denied Jacobs’s motions seeking derivative discretionary-function immunity, reasoning that Jacobs would be entitled to immunity only if it adhered to its contract and there were genuine disputes of material fact as to whether Jacobs acted within the scope of its authority. A jury returned a verdict in favor of the plaintiffs but did not designate any particular theory, as listed in the jury instructions, for which Jacobs could be held liable, broadly finding that Jacobs “failed to adhere to the terms of its contract," or the Plan. The Sixth Circuit affirmed. Jacobs is immune from suit only if TVA is immune; TVA would not have been immune from suit on the grounds that the plaintiffs’ claims raise either “inconsistency” or “grave-interference” concerns. View "Greg Adkisson v. Jacobs Engineering Group, Inc" on Justia Law

Michigan's Kalamazoo River was contaminated by papermills for decades, including by the release of PCBs. In 1990 the EPA added the River to the National Priorities List of Superfund sites; three paper companies formed KRSG, which entered an Administrative Order on Consent (AOC), agreeing to perform a remedial investigation. KRSG sought a declaratory judgment under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against several firms (not including IP) that the defendants were liable for “any response costs that may be incurred" in the future "in connection with the Site.” In 1998, the district court found KRSG's members and defendants Rockwell and Eaton liable for the contamination. The Sixth Circuit affirmed in 2001.In 2010, GP sued NCR, IP, and Weyerhaeuser, alleging that NCR arranged the disposal of PCB-containing substances in the area and that Weyerhaeuser was an owner. IP argued that it was not liable because it owned papermill property only as a secured creditor. The defendants argued that GP’s claims were time-barred under CERCLA’s three-year limitations period for contribution and identified several events in the prior litigation that may have caused the limitations period to begin running. The district court found that the claims concerning 2006–07 Administrative Settlement Agreements and Orders on Consent and one sub-claim from the 1990 AOC were time-barred, but that the remaining claims were not.The Sixth Circuit reversed. When the district court entered the 1998 declaratory judgment in the KRSG litigation, CERCLA’s statute of limitations for contribution claims began running. View "Georgia-Pacific Consumer Products, LP. v. NCR Corp." on Justia Law

The Army Corps of Engineers designed a stormwater diversion system for Pond Creek, which drains into a large watershed in the Louisville area. It included Pond Creek’s tributary, Fishpool Creek, and a nearby basin, Vulcan Quarry. The Corps suggested connecting the two through a spillway. The Corps partnered with Metro Sewer District (MSD). MSD filed an eminent domain action. The court awarded MSD only an easement over the quarry and refused to impose water treatment obligations on the easement. MSD’s stream construction permit from the Kentucky Natural Resources and Environmental Protection Cabinet did not require treatment of the water or cleaning up any pollutants.In 2000, the project was completed. South Side bought Vulcan Quarry in 2012 and claimed that MSD had exceeded its easement by diverting all of Fishpool Creek. In 2018, South Side sent MSD notice of its intent to sue for violations of the Clean Water Act’s (CWA) “prohibition on the dumping of pollutants into U.S. waters,” the easement, and Kentucky-issued permits. The district court dismissed certain claims as time-barred and others because the notice failed to identify sewage as a pollutant, provide dates the pollution took place, and describe the source of the pollution.The Sixth Circuit affirmed. MSD did not need a CWA discharge permit when it built the spillway and does not need one now. The waters of Fishpool Creek and Vulcan Quarry are not meaningfully distinct; the spillway is the kind of water transfer that is exempt from the permitting process. View "South Side Quarry, LLC v. Louisville & Jefferson County Metropolitan Sewer District" on Justia Law

Ammex operates a duty-free gas station in Wayne County, Michigan, near the bridge to Canada, but positioned “beyond the exit point” for domestic commerce established by U.S. Customs and Border Protection. In 2012, the Michigan Department of Agriculture and Rural Development (MDARD) sought to enforce an Environmental Protection Agency (EPA) rule requiring Wayne County gas stations to dispense low-pressure gasoline in the summer. MDARD, in conjunction with the EPA, implemented this rule to bring Southeast Michigan’s ozone levels into compliance with the Clean Air Act.Because of its unique location and certain sales privileges granted to it by U.S. customs law, Ammex resisted efforts to apply the rule to its gasoline sales. In 2019, the Sixth Circuit determined that MDARD was enforcing federal regulatory law, and was not in violation of the Supremacy Clause or dormant Foreign Commerce Clause. Ammex then argued that the environmental rule, properly construed, did not apply to Ammex and that the customs statute giving Ammex the right to sell duty-free goods supersedes the environmental regulation and renders it unenforceable against Ammex. The Sixth Circuit affirmed the dismissal of those claims. the Summer Fuel Law unambiguously applies to Ammex and does not impact Ammex’s ability to sell gas duty-free. View "Ammex, Inc. v. Michigan Department of Agriculture" on Justia Law

Canton’s 2006 Tree Ordinance prohibits the unpermitted removal, damage, or destruction of trees of specified sizes, with exceptions for agricultural operations, commercial nurseries, tree farms, and occupied lots smaller than two acres. If Canton issues a permit, the owner must replace removed trees on its own or someone else’s property or pay into Canton’s tree fund. For every landmark tree removed, an owner must replant three trees or pay $450. For every non-landmark tree removed as part of larger-scale tree removal, an owner must replant one tree or pay $300.In 2016, Canton approved the division of F.P.'s undeveloped property, noting the permitting requirement. The parcels were bisected by a county drainage ditch that was clogged with fallen trees and debris. The county refused to clear the ditch. F.P. contracted for the removal of the trees and debris and clearing other trees without a permit. Canton determined that F.P. had removed 14 landmark trees and 145 non-landmark trees. F.P. was required to either replant 187 trees or pay $47,898. F.P. filed suit under 42 U.S.C. 1983.The Sixth Circuit affirmed summary judgment for F.P. on its as-applied Fifth Amendment claim; although the ordinance, as applied to F.P., was not unconstitutional as a per se physical taking, it was unconstitutional as a regulatory taking and as an unconstitutional condition. Canton has not made the necessary individualized determination; the ordinance fails the “rough proportionality” required by Supreme Court precedent. View "F.P. Development, LLC. v. Charter Township of Canton" on Justia Law

In the 1930s and 1940s GE designed and manufactured self-propelled, electric passenger railcars that included liquid-cooled transformers. The transformers, which generated a great deal of heat, used a coolant called Pyranol that contains toxic polychlorinated biphenyls (PCBs). GE sold some railcars to government entities whose trains operated on Penn Central lines. Pyranol from the transformers escaped and contaminated four Penn Central rail yards. APU, Penn Central’s successor, had to pay for the costly environmental cleanup and sued GE under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which makes four classes of “[c]overed persons” strictly liable for environmental contamination, 42 U.S.C. 9607(a). APU argued that GE “arranged for disposal” of hazardous PCB because it designed and manufactured transformers with pressure-release valves whose “natural function” was to discharge Pyranol when conditions required, it knew that “[t]he frequency of minor spills [was] large,” it took affirmative steps to direct spills onto the roadbed; and it implemented a fail-and-fix policy for defective transformers rather than recall them.The Sixth Circuit affirmed summary judgment. GE is neither an arranger nor an operator under CERCLA. APU assigned away its contractual right to indemnification; any claims based on reassigned indemnity rights are time-barred. View "American Premier Underwriters, Inc. v. General Electric Co." on Justia Law

In 2007, GM sold a power plant to DTEPN, which leased the land under the plant for 10 years. DTEPN agreed to sell utilities produced at the plant to GM, to maintain the plant according to specific criteria, and to address any environmental issues. DTEPN’s parent company, Energy, guaranteed DTEPN’s utility, environmental, and maintenance obligations. Two years later, GM filed for bankruptcy. GM and DTEPN agreed to GM’s rejection of the contracts. DTEPN exercised its right to continue occupying the property. An environmental trust (RACER) assumed ownership of some GM industrial property, including the DTEPN land. DTEPN remained in possession until the lease expired. RACER then discovered that DTEPN had allowed the power plant to fall into disrepair and contaminate the property.The district court dismissed the claims against Energy, reasoning that RACER’s allegations did not support piercing the corporate veil and Energy’s guaranty terminated after GM rejected the contracts in bankruptcy.The Sixth Circuit reversed. Michigan courts have held that a breach of contract can justify piercing a corporate veil if the corporate form has been abused. By allegedly directing its wholly-owned subsidiary to stop maintaining the property, Energy exercised control over DTEPN in a way that wronged RACER. DTEPN is now judgment-proof because it was not adequately capitalized by Energy. RACER would suffer an unjust loss if the corporate veil is not pierced. Rejection in bankruptcy does not terminate the contract; the contract is considered breached, 11 U.S.C. 365(g). The utility services agreement and the lease are not severable from each other. Energy guaranteed DTEPN’s obligations under the utility agreement concerning maintenance, environmental costs, and remediation, so Energy’s guaranty is joined to DTEPN’s section 365(h) election. View "EPLET, LLC v. DTE Pontiac North, LLC" on Justia Law

Ohio and Tennessee filed suit in 2015 to enjoin the Clean Water Rule, which purported to interpret the phrase “waters of the United States,” as used in the Clean Water Act, 33 U.S.C. 1362(7), and, in 2018, sought a preliminary injunction against the Rule’s enforcement within their borders. In a 2018 Rule, the EPA and the Army Corps of Engineers suspended enforcement of the 2015 Rule; the Agencies gave notice of their intent to repeal (rather than merely suspend) the 2015 Rule. In 2019, the court denied the states’ motion with respect to the 2015 Rule on the ground that, suspended or not, the states had not shown a likelihood of imminent, irreparable harm. The Agencies formally repealed the 2015 rule. In 2020 they replaced the 2015 Rule with the “Navigable Waters Protection Rule.”The Sixth Circuit dismissed the states’ appeal as moot. Since the district court’s decision, the Agencies have repealed and replaced the rule that the states sought preliminarily to enjoin. The Agencies have already provided the states with relief; a preliminary injunction against the 2015 Rule’s enforcement in Ohio and Tennessee would lack any practical effect. There is no reasonable possibility that the 2015 Rule will again become effective in Ohio or Tennessee while this case remains pending. View "Ohio v. United States Environmental Protection Agency" on Justia Law

The City of Flint and city and state officials allegedly caused, sustained, and covered up the poisoning of the people of Flint. Plaintiffs filed a 2017 “Master Complaint,” containing the allegations and claims made by plaintiffs across the coordinated litigation; “short-form” complaints charted certain components of the Master Complaint, including named defendants, alleged injuries, and claims. In this case, the district court declined to dismiss all defendants other than former State Treasurer Andy Dillon.Earlier in 2020, the Sixth Circuit, in "Waid," decided that the same officials who are defendants in this case plausibly violated plaintiffs’ substantive due process right to bodily integrity and are not entitled to qualified immunity and rejected Flint’s and Michigan Governor Whitmer’s arguments that the Eleventh Amendment required their dismissal. Defendant Johnson argued that the allegations against him in this case differently than those levied against him in Waid. The court concluded that there is no reason to treat Johnson differently. The Sixth Circuit affirmed, rejecting an argument that higher-ups should be treated differently than officials making decisions on the ground. . View "In re Flint Water Cases" on Justia Law

For more than 60 years, Line 5 has carried oil from northwestern Wisconsin, across Michigan's Upper Peninsula, across the Straits of Mackinac, through the Lower Peninsula, ending in southwestern Ontario. The Clean Water Act requires oil pipeline operators to submit response plans to address the risk of a potential oil spill, 33 U.S.C. 1321(j)(5)(A)(i). The Act provides that the administering agency “shall . . . approve any plan” that satisfies six enumerated criteria. Over the past five years, Line 5’s operator (Enbridge) has submitted two response plans. The Pipeline and Hazardous Materials Safety Administration evaluated the plans, determined each met the enumerated criteria, and approved both. The National Wildlife Federation sued. The district court found that the response plans satisfied the enumerated criteria but granted the Foundation summary judgment, holding that the agency had to comply with the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA).The Sixth Circuit reversed. ESA's requirement that federal agencies consult with the appropriate environmental authorities in order to ensure that the action is not likely to jeopardize the continued existence of any endangered or threatened species, 16 U.S.C. 1536(a)(2), and NEPA's requirement that federal agencies prepare an environmental impact statement for major federal actions that will affect the environment, 42 U.S.C. 4332(C), apply only to discretionary actions. Although the agency exercises “judgment” in applying the Clean Water Act criteria, its actions are not discretionary. View "National Wildlife Federation v. Secretary of the United States Department of Transportation" on Justia Law