Justia Environmental Law Opinion SummariesArticles Posted in Washington Supreme Court
Ctr. for Envtl. Law & Policy v. Dep’t of Ecology
The Spokane River originates at the outlet of Coeur d’Alene Lake in Idaho and flows west for approximately 111 miles to the Columbia River in eastern Washington. Flows in the river have been declining due to increased groundwater use from the aquifer. The Washington Department of Ecology (Ecology) ceased issuing new groundwater rights from the aquifer in the 1990s. Avista Corporation operated five hydroelectric projects located on the Spokane River in northern Idaho and eastern Washington. The uppermost project on the river, the Post Falls development, consisted of three dams on three channels with natural islands connecting the structures. The development impounded nine miles of the Spokane River to the outlet of Coeur d’Alene Lake. The issue this case presented for the Washington Supreme Court's review centered on Ecology's authority to set minimum instream flows for the rivers and streams in Washington, and the parameters of that authority under RCW 90.22.010 and RCW 90.54.020(3)(a). At issue was whether Ecology properly adopted a rule, WAC 173-557-050, setting a summertime minimum instream flow rate for the Spokane River at 850 cfs (cubic feet per second) from June 16 to September 30. The Supreme Court upheld that rule, determining that the Agency's challengers failed to carry their burden to show the rule’s invalidity. The Court reversed the Court of Appeals’ decision, which reversed the trial court’s dismissal of the challengers’ suit. View "Ctr. for Envtl. Law & Policy v. Dep't of Ecology" on Justia Law
Confederated Tribes & Bands of the Yakama Nation v. Yakima County
Granite Northwest sought to expand its mining operations in Yakima County, Washington. The Confederated Tribes and Bands of the Yakama Nation (Yakama) opposed the expansion, arguing it would disturb ancient burial grounds and a dedicated historical cemetery. Despite these objections, Yakima County issued a conditional use permit and a State Environmental Policy Act (SEPA), ch. 43.21C RCW, mitigated determination of nonsignificance to Granite Northwest. Yakama challenged both in superior court. The court later stayed the SEPA challenge while Yakama exhausted its administrative appeal of the conditional use permit as required by the Yakima county code. In Yakama’s administrative appeal, the hearing officer modified the conditional use permit to require a separate permit from the Washington State Department of Archaeology and Historic Preservation but affirmed Yakima County’s issuance of the permit. Yakama appealed the hearing examiner’s decision to the county board of commissioners. On April 10, 2018, at a public meeting where Yakama representatives were present, the board passed a resolution affirming the hearing officer’s decision and denying Yakama’s appeal. Three days later, a county planner sent an e-mail and letter to Yakama with the resolution attached. The letter noted the county code required written notification of the decision and stated that the administrative appeal had been exhausted. On May 2, 2018, 22 days after the resolution was adopted and 19 days after the county planner’s letter, Yakama filed a new petition in superior court. Yakima County and Granite Northwest (collectively, Granite NW) moved to dismiss the second petition as untimely under RCW 36.70C.040(4)(b) because the 21-day filing period began on the date the board of commissioners passed its resolution and Yakama’s petition was 1 day late. Granite NW also moved to dismiss the previously stayed petition, arguing the stay was conditional on Yakama timely filing its administrative appeal. Yakama responded that RCW 36.70C.040(4)(b) was inapplicable and instead RCW 36.70C.040(4)(a) governed the filing period, which began when the county planner transmitted the written resolution to Yakama. The superior court agreed with Yakama, finding Yakama’s land use petition was timely filed, and accordingly, did not dismiss Yakama’s earlier petition. The Court of Appeals reversed in an unpublished decision, concluding the later petition was not timely and did not address the previously stayed petition. After review, the Washington Supreme Court concluded Yakama's petition was timely filed. The Court of Appeals was reversed. View "Confederated Tribes & Bands of the Yakama Nation v. Yakima County" on Justia Law
Ass’n of Wash. Bus. v. Dep’t of Ecology
At issue was the promulgation of a novel rule by the Washington Department of Ecology addressing climate change. Specifically, the Washington Supreme Court was asked to determine whether the Washington Clean Air Act granted the Department broad authority to establish and enforce greenhouse gas emission standards for businesses and utilities that did not directly emit greenhouse gases, but whose products ultimately did. The Department claimed and exercised such authority in promulgating the rule at issue. The Supreme Court held that by its plain language and structure, the Act limited the applicability of emissions standards to actual emitters. "Ecology's attempt to expand the scope of emission standards to regulate nonemitters therefore exceeds the regulatory authority granted by the Legislature." The Court invalidated the Rule to the extent that it exceeded the Department's regulatory authority, while recognizing the Department could continue to enforce the Rule in its authorized applications to actual emitters. View "Ass'n of Wash. Bus. v. Dep't of Ecology" on Justia Law
Spokane County v. Dep’t of Fish & Wildlife
At issue was the geographic scope of the permitting authority delegated to the Washington Department of Fish and Wildlife over hydraulic projects. A coalition of counties challenged the Department's statutory authority to regulate the construction or performance of work to occur exclusively above the ordinary high-water line. The Washington Supreme Court held the plain language of the statute at issue looked to the "reasonably certain" (not "absolutely certain") effects of hydraulic projects on state waters in determining the scope of the Department's permitting authority, and at least some projects above the ordinary high-water line were reasonably certain to affect those waters. An examination of relevant legislative history confirmed that the legislature intended the Department's regulatory jurisdiction to include projects above the ordinary high-water line that affected state waters. View "Spokane County v. Dep't of Fish & Wildlife" on Justia Law
Puget Soundkeeper All. v. Dep’t of Ecology
The issue this case presented for the Washington Supreme Court's review centered on whether the state Department of Ecology's then-current wast discharge permitting process complied with RCW 90.48.520 and its requirement for permit conditions to "require all known, available and reasonable methods" to control toxicants in the applicant's wastewater. Specifically, the issue was whether the statute required the Department to use a more sensitive testing method not recognized by the Department or the U.S. EPA as reliable for permit compliance purposes. The Supreme Court determined that it did not require such testing, and affirmed the Court of Appeals. View "Puget Soundkeeper All. v. Dep't of Ecology" on Justia Law
Pope Res., LP v. Dep’t of Nat. Res.
Between 1853 and 1995, the Port Gamble Bay facility in Kitsap County, Washington operated as a sawmill and forest products manufacturing facility by Pope & Talbot and its corporate predecessors. Close to four decades after Puget Mill Co., predecessor to Pope & Talbot, began operating the sawmill, the legislature authorized the disposal of certain occupied state-owned aquatic lands, including the tidal lands within Port Gamble Bay. The Washington Department of Natural Resources (DNR) issued the first lease for Pope & Talbot's use of the Port Gamble Bay submerged lands in 1974. In 1985, Pope & Talbot transferred 71,363 acres of its timberlands, timber, land development, and resort businesses in the State of Washington to Pope Resources, LP, which in turn leased the mill area to Pope & Talbot. Pope & Talbot ceased mill operations in 1995. Pope sought to develop their Port Gamble holdings for a large, high-density community with a marina. However, the Port Gamble site was contaminated, in part from the operation of sawmill buildings to saw logs for lumber, operation of chip barge loading facilities and a log-transfer facility, particulate sawmill emissions from wood and wood waste burning, in-water log rafting and storage, and creosote treated pilings placed throughout the bay to facilitate storage and transport of logs and wood products. After entering into a consent decree with the Washington Department of Ecology in 2013 for remediation of portions of the site exposed to hazardous substances, Pope/OPG filed a complaint in 2014 seeking a declaration that DNR was liable for natural resources damages and remedial costs, and for contribution of costs. The Superior Court granted summary judgment in favor of DNR in 2016. The Court of Appeals reversed, holding that DNR was an "owner or operator" with potential liability under the Washington Model Toxics Control Act (MTCA). DNR appealed, and the Washington Supreme Court reversed, finding DNR was neither an "owner" nor an "operator" of the Port Gamble Bay facility for purposes of MTCA. View "Pope Res., LP v. Dep't of Nat. Res." on Justia Law
Douglass v. Shamrock Paving, Inc.
Landowners Harlan and Maxine Douglass (Douglass) brought a private right of action against Shamrock Paving Inc. under the Model Toxics Control Act (MTCA), chapter 70.105DRCW, to recover costs incurred from an alleged remedial action. Shamrock trespassed onto Douglass' vacant property and spilled an unknown amount of lube oil.Douglass paid for soil testing and soil removal to clean up his property and sought recovery of those costs under the MTCA. At issue for the Washington Supreme Court's consideration was the interpretation of "remedial action" within the statute, whether the lube oil on Douglass' property created a "potential threat" to human health or the environment, in addition to which party would thus be considered the "prevailing party." The Supreme Court affirmed the Court of Appeals' holding that Douglass' soil testing was a remedial action, but the soil removal was not. The Court also reversed the appellate court's prevailing party designation because it was premature. The matter was remanded to the trial court for further proceedings. View "Douglass v. Shamrock Paving, Inc." on Justia Law
Chelan Basin Conservancy v. GBI Holding Co.
Petitioner Chelan Basin Conservancy (Conservancy) sought the removal of six acres of fill material that respondent GBI Holding Co. added to its property in 1961 to keep the formerly dry property permanently above the artificially raised seasonal water fluctuations of Lake Chelan. At issue was whether the State consented to the fill's impairment of that right and, if so, whether such consent violated the public trust doctrine. After review, the Washington Supreme Court found the Court of Appeals correctly concluded that the legislature consented to the fill's impairment of navigable waters under RCW 90.58.270 (the Savings Clause), but the Court of Appeals prematurely concluded such consent did not violate the public trust doctrine. Because the trial court never reached the highly factual public trust issue, the Court reversed and remanded to the trial court to determine in the first instance whether RCW 90.58.270 violated the public trust doctrine. View "Chelan Basin Conservancy v. GBI Holding Co." on Justia Law
Columbia Riverkeeper v. Port of Vancouver USA
This case stemmed from a dispute over the regulatory schemes of the State Environmental Policy Act (SEPA) and the energy facilities site locations act (EFSLA), and how those schemes applied to a lease agreement between respondents, the Port of Vancouver USA and its board of commissioners (Port), and Tesoro Corporation and Savage Companies (Tesoro). The lease agreement permitted Tesoro to construct a petroleum based energy facility on the Port's property. The agreement remained contingent on review by, and certification from, the Energy Facility Site Evaluation Council (EFSEC), the primary decision-making authority in the field of energy facilities siting and regulation under EFSLA. EFSLA incorporated by reference numerous regulations from SEPA, including WAC 197-11-714(3) and -070(1)(b) which precluded agencies "with jurisdiction" from taking actions that would "[l]imit the choice of reasonable alternatives" prior to the issuance of an environmental impact statement (EIS). The Port entered into the lease agreement with Tesoro prior to EFSEC's issuance of an EIS. Columbia Riverkeeper, Sierra Club, and Northwest Environmental Defense Center (collectively, “Riverkeeper”) sued the Port, alleging, among other things, that the lease agreement limited the choice of reasonable alternatives available to the Port, thereby violating SEPA. The trial court summarily dismissed Riverkeeper's SEPA claims in favor of the Port, holding that the contingencies contained within the lease preserved reasonable alternatives available to the Port. The Court of Appeals affirmed. After review, the Washington Supreme Court affirmed the Court of Appeals, finding the Port's lease with Tesoro did not violate SEPA. However, the Court affirmed only the outcome; the Court adopted the trial court’s reasoning and affirmed. View "Columbia Riverkeeper v. Port of Vancouver USA" on Justia Law
Snohomish County v. Pollution Control Hr’gs Bd.
The issue this case presented for the Washington Supreme Court's review centered on whether Washington's vested rights doctrine excused compliance with the requirements of a municipal storm water permit. The Washington State Department of Ecology issued the third iteration of a municipal storm water permit pursuant to the Federal Water Pollution Control Act the National Pollutant Discharge Elimination System permitting program (established by the Act). Various permittees appealed this portion of the permit to the Pollution Control Hearings Board, claiming that it violated the vested rights doctrine because it compelled them to retroactively apply new storm water regulations to completed development applications. The Pollution Control Hearings Board held that the vested rights doctrine did not apply to storm water regulations permittees must implement as part of the National Pollutant Discharge Elimination System permitting program. The Court of Appeals reversed, finding that the vested rights doctrine excused compliance with the storm water regulations because they were "land use control ordinances." Finding that the Court of Appeals erred in its judgment, the Supreme Court reversed and reinstated the Pollution Control Hearings Board's order. View "Snohomish County v. Pollution Control Hr'gs Bd." on Justia Law