Justia Environmental Law Opinion SummariesArticles Posted in US Court of Appeals for the Tenth Circuit
Center for Biological Diversity v. EPA, et al.
In a May 2022 final rule, the U.S. Environmental Protection Agency (EPA) approved a revision to Colorado’s State Implementation Plan (SIP) certifying Colorado’s existing, EPA-approved Nonattainment New Source Review (NNSR) permit program regulating new or modified major stationary sources of air pollution in the Denver Metro-North Front Range area met the requirements for attaining the 2015 National Ambient Air Quality Standards (NAAQS) for ozone. The Center for Biological Diversity challenged the final rule on procedural and substantive grounds. Procedurally, the Center argued the EPA violated the Administrative Procedure Act (APA) by failing to include the state regulations that comprised Colorado’s permit program in the rulemaking docket during the public-comment period. And substantively, the Center argued the EPA acted contrary to law when it approved Colorado’s SIP revision because Colorado’s permit program excluded all “temporary emissions” and “emissions from internal combustion engines on any vehicle” in determining whether a new or modified stationary source was “major” and therefore subject to the permit process. The Tenth Circuit found the EPA’s notice of proposed rulemaking was adequate under the APA, but agreed with the Center that the EPA acted contrary to law in allowing Colorado to exclude all temporary emissions under its permit program. The Court found the federal regulation the EPA relied on in approving this exclusion plainly did not authorize such an exclusion. But the Center identified no similar problem with the EPA allowing Colorado to exclude emissions from internal combustion engines on any vehicle. The Court therefore granted the Center’s petition in part, vacated a portion of the EPA’s final rule, and remanded for further proceedings. View "Center for Biological Diversity v. EPA, et al." on Justia Law
Wyoming v. EPA, et al.
This case involved Wyoming’s plan to regulate emissions from powerplants within its borders that produce pollutants that contribute to regional haze, reducing visibility in and the aesthetics to national parks and wilderness areas. Wyoming produced a state implementation plan (SIP) in 2011. In a 2014 final rule, the EPA approved the SIP in part (as to Naughton) and disapproved it in part (as to Wyodak). Through a federal implementation plan (FIP), the EPA also substituted its determination of the proper technology to install at Wyodak, replacing Wyoming’s SIP. Wyoming and PacifiCorp petitioned for review, arguing the SIP should be entirely approved and claiming the EPA failed to grant Wyoming the deference required by federal law when it disapproved the Wyodak portion. Several conservation groups also challenged the rule, arguing the Naughton 1 and 2 portion should have been disapproved because the EPA failed to require the best available technology to reduce regional haze in a timely manner. The Tenth Circuit Court of Appeals granted the petition as to Wyodak and vacated that portion of the final rule. The Court found the EPA erred in evaluating the Wyodak portion of the SIP because it treated non-binding agency guidelines as mandatory in violation of the Clean Air Act. The Court remanded that part of the final rule to the agency for further review. But because the EPA properly approved Wyoming’s determination of the best technology for Naughton, the Court denied the petition as to those units and upheld that portion of the final rule. View "Wyoming v. EPA, et al." on Justia Law
Heal Utah, et al. v. EPA, et al.
The issue this case presented for appellate review centered on the air pollution controls on certain coal-fired power plants in Utah that contributed to regional haze. This haze impaired visibility in national parks and wilderness areas across the United States (known as Class I areas). Following Congress’s direction in the Clean Air Act (the CAA or Act) to regulate regional haze, EPA promulgated the Regional Haze Rule to restore natural background visibility conditions in Class I areas by the year 2064. To comply with the CAA’s regional haze requirements, states with Class I areas, or states releasing emissions that may affect visibility in those areas, had to implement the best available retrofit technology (BART) on certain existing sources of air pollution or, alternatively, adopt measures that achieved greater reasonable progress towards improving visibility than BART. The Act required each state to develop a state implementation plan (SIP) for mitigating emissions that contribute to regional haze. The EPA then reviewed the SIP to determine if it satisfied the Act. EPA twice disapproved Utah’s SIPs addressing visibility-impairing emissions at power plants operated by Respondent-Intervenor PacifiCorp. Eventually, EPA approved Utah’s July 2019 revised SIP. In the Final Rule, EPA endorsed Utah’s decision to adopt an alternative measure instead of BART to control for visibility-impairing emissions at the power plants. Petitioners Heal Utah, National Parks Conservation Association, Sierra Club, and Utah Physicians sought review of the Final Rule. According to Petitioners, EPA abused its discretion by approving Utah’s revised SIP because Utah’s alternative measure did not satisfy the CAA’s national visibility goals. They also argued EPA failed to respond to certain comments Petitioners submitted during the rulemaking process. Finding no abuse of discretion, the Tenth Circuit denied the petition for review. View "Heal Utah, et al. v. EPA, et al." on Justia Law
Western Watersheds Project, et al. v. United States Bureau of Land Management, et al.
Three conservation groups challenged the U.S. Bureau of Land Management’s approval of Jonah Energy’s development project on state and federal land in Wyoming. The project was designed to drill exploratory wells on land for which Jonah possessed development rights. The conservation groups argued the district court erred in upholding the BLM’s approval under the National Environmental Protection Act and the Federal Land Polocy and Management Act. Specifically, they contended the BLM inadequately considered the impact of the project on the sage-grouse and pronghorn antelope migration and grazing patterns. The Tenth Circuit concluded the BLM adequately collected and considered information on the sage-grouse and pronghorn, and selected a development plan that met statutory requirements. View "Western Watersheds Project, et al. v. United States Bureau of Land Management, et al." on Justia Law
Center for Biological, et al. v. US Department of the Interior, et al.
This case arose from the Bureau of Reclamation’s ("Reclamation") Environmental Analysis of a proposed water contract between it and Utah involving water in the Green River Basin. The Green River Block Exchange contract allowed Utah to draw water from releases from Flaming Gorge Reservoir instead of depleting water from the Green River and its tributary flows to which Utah was entitled under Article XV(b) of the Upper Colorado River Basin Compact of 1948. Conservation groups sued Reclamation and the U.S. Department of the Interior alleging violations of the National Environmental Policy Act (NEPA) and the Administrative Procedure Act. The district court found that Reclamation’s NEPA analysis was not arbitrary and capricious, that the agency took a “hard look” at cumulative impacts, and that it properly determined that an Environmental Impact Statement was not required. The Tenth Circuit affirmed: the record adequately demonstrated that Reclamation took a hard look at the proposed action and provided a reasoned explanation of its decision. View "Center for Biological, et al. v. US Department of the Interior, et al." on Justia Law
Sinclair Wyoming v. EPA
Sinclair Wyoming Refining Company petitioned the Tenth Circuit Court of Appeals under the Clean Air Act and the Administrative Procedure Act to challenge an email from an Environmental Protection Agency (“EPA”) official denying the return of its Renewable Identification Numbers (“RINs”) that it had deposited with EPA when it was not exempted from the Renewable Fuel Standard program for the year 2018. Because the email was not a final agency action, the Court dismissed the petition for lack of jurisdiction. View "Sinclair Wyoming v. EPA" on Justia Law
Citizens for Constitutional Integrity, et al. v. United States, et al.
Plaintiffs Citizens for Constitutional Integrity and Southwest Advocates, Inc. appealed the denial of their motion for temporary relief by the United States District Court for the District of Colorado. The Department of the Interior’s Office of Surface Mining Reclamation and Enforcement (the Office) granted a coal-mining permit for an expansion of the King II Mine (the Mine) in the Dunn Ranch Area of La Plata County, Colorado. Plaintiffs sought to enjoin mining under the expansion and ultimately vacate the permit. They alleged the Office conducted flawed assessments of the probable hydrologic impacts of the expansion, contrary to the requirements of the Surface Mining Control and Reclamation Act (the SMCRA or the Act). As authority for their motion, they invoked the Act’s citizen-suit provision, or alternatively, the Administrative Procedure Act (the APA). The Tenth Circuit Court of Appeals concluded Plaintiffs were not entitled to temporary relief because their claims under the SMCRA and the APA were not likely to succeed on the merits. View "Citizens for Constitutional Integrity, et al. v. United States, et al." on Justia Law
Western Watersheds Project, et al. v. Haaland, et al.
In 2019, the United States Forest Service (“FS”) issued a Record of Decision (“ROD”) authorizing livestock grazing for 10 years on land in the Upper Green River Area Rangeland (“UGRA”) in Wyoming. Two sets of petitioners-appellants, the Center for Biological Diversity and Sierra Club (collectively, “CBD”) and Western Watersheds Project, Alliance for Wile Rockies and Yellowstone to Unitas Connection (collectively “WWP”) challenged the UGRA Project under the Endangered Species Act (“ESA”), the National Forest Management Act (“NFMA”), and the Administrative Procedures Act. The Tenth Circuit Court of Appeals concluded: (1) the Fish and Wildlife Service’s failures in the Biological Opinion to consider certain impacts the UGRA would have on female grizzly bears was arbitrary and capricious, but that the Opinion’s reliance on certain conservation measures was not; and (2) the Forest Service’s reliance on the Fish and Wildlife Service’s Biological Opinion was arbitrary and capricious. As to WWP’s NFMA claims, the Court determined the ROD’s failure to consider the adequacy of forage and cover for migratory birds in the Project area was arbitrary and capricious. The Court remanded without vacated to the agencies to address deficiencies identified. View "Western Watersheds Project, et al. v. Haaland, et al." on Justia Law
Audubon of Kansas v. United States Department of Interior, et al.
Appellant Audubon of Kansas (Audubon) was frustrated with federal bureaucracy: the United States Fish and Wildlife Service (the Service) knew for decades that junior water-rights-holders were impairing its senior water right in Quivira Wildlife Refuge (the Refuge), threatening the endangered species there. Despite years of study and negotiation between the Service, state agencies, and Kansas water districts, the Refuge water right remained impaired. Audubon filed this lawsuit seeking to force the Service to protect the Refuge water right. But in 2023, the Service did act by requesting full administration of the Refuge water right, which was a remedy Audubon sought for its failure-to-act claim. For its claims of unlawful agency action, Audubon also sought to set aside an agreement between the Service and a water district. The Tenth Circuit determined all material terms of this agreement expired. The Service argued Audubon’s claims were moot; Audubon countered that its claims weren't moot or that a mootness exception should apply. To this, the Tenth Circuit concluded Audubon’s claim of unlawful agency action under 5 U.S.C. § 706(2) was moot, and that claim was dismissed for lack of jurisdiction. As for Audubon’s claim of agency inaction under § 706(1), the Court found the mootness exception of “capable of repetition but evading review” applied, but the Court lacked jurisdiction under the Administrative Procedure Act. View "Audubon of Kansas v. United States Department of Interior, et al." on Justia Law
Western Watersheds Project v. Interior Board of Land Appeals, et al.
In 2019, Western Watersheds Project sued to challenge the issuance of permits that expired in 2018. The district court dismissed the case for lack of Article III standing. The Tenth Circuit Court of Appeals agreed with that decision: Western Watersheds Project’s claims were brought against expired permits that had already been renewed automatically by 43 U.S.C. § 1752(c)(2). And the timing of a new environmental analysis of the new permits was within the Secretary’s discretion under 43 U.S.C. § 1752(i). Western Watersheds Project, therefore, lacked Article III standing because its claims were not redressable. View "Western Watersheds Project v. Interior Board of Land Appeals, et al." on Justia Law