Justia Environmental Law Opinion Summaries

The County of San Diego (the County) challenged a peremptory writ of mandate and injunction, along with a judgment directing it to set aside and vacate the "2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Document" and prohibiting it from using the Guidance Document or the "Efficiency Metric" defined in it as part of its California Environmental Quality Act (CEQA) review of greenhouse gas (GHG) impacts for development proposals in unincorporated areas of San Diego County. The County argued the matter was not justiciable because it was not ripe and the Guidance Document did not establish a threshold of significance for use in environmental review, nor did its use violate CEQA. Furthermore, the County contended its separate development of a Climate Action Plan (CAP) and threshold of significance was evidence the Guidance Document did not violate a previous writ or use piecemeal environmental review. The Court of Appeal disagreed with the County and affirmed the trial court writ and judgment in their entirety. View "Golden Door Properties v. Co. of San Diego" on Justia Law

In May 2017, Jerry Tarver, Sr., sued the Utilities Board of the City of Tuskegee ("UBT") and numerous other defendants seeking damages based on alleged exposure to contaminated water purportedly caused by defendants' combined and concurring negligence. The UBT petitioned the Alabama Supreme Court for a writ of mandamus to direct the Macon Circuit Court to vacate its December 2017 order disqualifying UBT's retained counsel, Huie, Fernambucq & Steward, LLP (the Huie Firm) from representing it in Tarver's suit. The Supreme Court determined Tarver did not present evidence indicating that a Huie firm lawyer, in his capacity as a commissioner of the Alabama Environmental Management Commission, was a conflict of interest regarding the attorney's representation of UBT. Therefore, the attorney was not disqualified under Rule 1.11(a), Ala. R. Prof. Cond., and no disqualification could be imputed to the Huie firm. View "Ex parte Utilities Board of the City of Tuskegee." on Justia Law

Defendants collectively referred to as "Advanced Disposal" petitioned the Alabama Supreme Court for mandamus relief to direct the circuit court to either join the City of Tallassee as a necessary and indispensable party, or dismiss this suit entirely. Advanced Disposal entered into an "Agreement for Acceptance and Treatment of Leachate" with the City ("the agreement") in which the City agreed to accept and treat, for a fee, leachate from Advanced Disposal's landfill. After the City accepts title to the leachate, it treats the leachate with chlorine at its stabilization pond. The City then discharges the effluent into the Tallapoosa River ("the river") pursuant to a National Pollutant Discharge Elimination System Permit ("the NPDES permit"). The effluent mixes with the river water, which flows several miles downstream to the intake point for the Utilities Board of Tuskegee ("the utilities board"), which treats the river water with chlorine and uses other methods to prepare the water for consumption by its consumers, including the plaintiff, Jerry Tarver, Sr. In May 2017, Tarver sued Advanced Disposal, the utilities board, and fictitiously named defendants seeking monetary damages as well as injunctive relief for exposure to allegedly contaminated water that had been illegally "discharged" into the river and ultimately sold by the utilities board for consumption by its customers. Although the Supreme Court concluded the City was a necessary party to Tarver's action, it could not determine whether its joinder is feasible, insofar as the City, once joined, might object to venue in Macon County. Accordingly, the Court issued the writ of mandamus and directed the trial court to join the City as a necessary party under Rule 19(a). If the City, once joined, objects to venue, Rule 19(a) requires the trial court to dismiss it from the action and then proceed under Rule 19(b) to determine, in accordance with the stated factors, "whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the [City] being thus regarded as indispensable." View "Ex parte Advanced Disposal Services South, LLC, et al." on Justia Law

The city’s General Plan policy LU-7 encourages new neighborhood commercial facilities and supermarkets to be located to maximize accessibility to all residential areas. Wal-Mart proposed to expand its store to add 36,000 square feet for a 24-hour grocery/supermarket. The city's draft environmental impact report (EIR) concluded the project was “consistent” with LU-7, stating: “There are no existing grocery stores within a 1-mile radius …project would install bicycle storage facilities and enhance pedestrian facilities to improve accessibility.” Objectors claimed that the project would close existing neighborhood-serving grocery stores, is located in a large commercial area, and would contribute to an over-concentrated area. The planning commission declined to approve the original EIR, citingPolicy LU-7. The city council granted an appeal. Previous litigation concerned noise and traffic impacts and resulted in a revised EIR and reapproval. Opponents then challenged the approval based on the General Plan. The trial court concluded the petition was barred by res judicata and the statute of limitations and that substantial evidence supported the approval. The court of appeal affirmed. The project is in a new growth area with increasing residential communities and is located at least a mile from the next closest supermarket but it may place stress on other local supermarkets. Considering the evidence as a whole, the decision was not palpably unreasonable, and did not exceed the city’s “broad discretion.” View "Atwell v. City of Rohnert Park" on Justia Law

Tennessee Valley Authority (TVA) operates the coal-fired electricity-generating Gallatin Fossil Plant on a part of the Cumberland River called Old Hickory Lake, a popular recreation spot. The plant supplies electricity to approximately 565,000 households in the Nashville area but generates waste byproducts, including coal combustion residuals or coal ash. The plant disposes of the coal ash by “sluicing” (mixing with lots of water) and allowing the coal ash solids to settle unlined man-made coal ash ponds adjacent to the river. The plant has a permit to discharge some coal combustion wastewater, which contains heavy metals and other pollutants, into the river through a pipe. Other wastewater is allegedly discharged through leaks from the ponds through the groundwater into the Cumberland River, a waterway protected by the Clean Water Act (CWA), 33 U.S.C. 1251. The district court found that TVA violated the CWA because its coal ash ponds leak pollutants through groundwater that is “hydrologically connected” to the Cumberland River without a permit. The theory is called the “hydrological connection theory” by the federal Environmental Protection Agency (EPA). The Sixth Circuit reversed, finding no support for the hydrological connection theory in either the text or the history of the CWA and related environmental laws. View "Tennessee Clean Water Network v. Tennessee Valley Authority" on Justia Law

Kentucky Utilities (KU) burns coal to produce energy, then stores the leftover coal ash in two man-made ponds. Environmental groups contend that the chemicals in the coal ash are contaminating the surrounding groundwater, which in turn contaminates a nearby lake, in violation of the Clean Water Act (CWA), 33 U.S.C. 1251(a), and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6902(a). The Sixth Circuit affirmed, in part, the dismissal of their suit. The CWA does not extend liability to pollution that reaches surface waters via groundwater. A “point source,” of pollution under the CWA is a “discernible, confined and discrete conveyance.” Groundwater is not a point source. RCRA does, however govern this conduct, and the plaintiffs have met the statutory rigors needed to bring such a claim. They have alleged (and supported) an imminent and substantial threat to the environment; they have provided the EPA and Kentucky ninety days to respond to those allegations, and neither the EPA nor Kentucky has filed one of the three types of actions that would preclude the citizen groups from proceeding with their federal lawsuit, so the district court had jurisdiction. View "Kentucky Waterways Alliance v. Kentucky Utilities Co." on Justia Law

Language in a 1993 appropriations act does not require the Corps to continue to use a 1987 guidance manual for delineating wetlands under the Clean Water Act. In an action seeking to set aside the Corps' decision for an excavation permit in Alaska, the Ninth Circuit held that the 1993 Budget Act prohibited the Corps from using the 1987 Manual during fiscal year 1993, and Congress included a second paragraph to explain what it expected the Corps to do instead. Accordingly, the panel affirmed the district court's grant of summary judgment for the Corps. View "Tin Cup, LLC v. US Army Corps of Engineers" on Justia Law

The Supreme Court affirmed the order of the Water Court granting the United States Bureau of Land Management’s (BLM) motion for summary judgment, holding that the Water Court correctly determined that the BLM was the owner of certain stock claims and correctly affirmed other claims for wildlife use.Specifically, the Court held that the Water Court (1) properly determined that Ron and Maxine Korman forfeited interests claimed for stockwater use in the Chevy and Poker Reservoirs; and (2) did not err when it determined that the wildlife claims at issue were valid and did not expand the original appropriation. View "United States Bureau of Land Management v. Korman" on Justia Law

Francis Bottini, Jr., Nina Bottini, and the Bernate Ticino Trust (the Bottinis) applied to the City of San Diego for a coastal development permit (CDP) to construct a single-family home on a vacant lot in La Jolla. City staff determined that the Bottinis' proposed construction project was categorically exempt from environmental review under the California Environmental Quality Act, but the City Council of San Diego reversed that determination. In reaching its decision, the City Council found that full environmental review was necessary because the Bottinis had removed a 19th century cottage from the lot on which they planned to build their residence shortly before they applied for a CDP. The City had previously voted against designating that cottage as a historical resource, declared that the cottage was a public nuisance, and authorized the Bottinis to demolish the cottage. Nevertheless, after the cottage's demolition, the City Council declared the cottage "historic," concluded that the cottage's demolition must be considered part of the Bottinis' project for purposes of CEQA, and found that there was a reasonable possibility that CEQA's "historical resources" and "unusual circumstances" exceptions applied to the Bottinis' construction project, thus requiring full environmental review. The Bottinis filed a petition for a writ of administrative mandamus seeking to compel the City Council to set aside its decision, as well as a complaint for damages against the City, based on alleged violations of the takings, due process, and equal protection clauses of the California Constitution. The City moved for summary judgment on the Bottinis' constitutional causes of action. The court granted the Bottinis' petition concluding the demolition of the cottage was not a component of the Bottinis' construction project and, as a result, the City Council's determination that the project was not categorically exempt from CEQA review lacked substantial evidentiary support. The court also granted the City's motion for summary judgment on the Bottinis' constitutional claims. Finding no reversible error, the Court of Appeals affirmed the trial court. View "Bottini v. City of San Diego" on Justia Law

The Ninth Circuit affirmed the district court's judgment for plaintiffs in an action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This case involved Teck Metals' liability for dumping several million tons of industrial waste into the Columbia River.Determining that it had jurisdiction, the panel held that the district court properly awarded the Colville Tribes all investigation expenses as costs of removal, even though many of these activities played double duty supporting both cleanup and litigation efforts; the district court properly awarded the Colville Tribes their attorney's fees, and the panel did not disturb the finding that approximately $4.86 million was a reasonable award in this case; and Teck did not make a sufficient showing to establish that liability for environmental harm to the Site was theoretically capable of apportionment. View "Pakootas v. Teck Cominco Metals, Ltd." on Justia Law