Justia Environmental Law Opinion Summaries

The Supreme Judicial Court upheld 310 Code Mass. Regs. 7.74 (Cap Regulation), which imposes declining greenhouse gas emissions limits on the in-State electric sector through 2050, holding that none of the arguments raised by Plaintiffs against the Cap Regulation was meritorious.Plaintiffs argued, among other things, that a key provision of the Global Warming Solutions Act, Mass. Gen. Laws ch. 21N, 3(d), which directs the Department of Environmental Protection to promulgate regulations establishing declining annual aggregate emission limits for sources that emit greenhouse gas emissions, does not apply to the electric sector because that sector is regulated by a separate provision, Mass. Gen. Laws ch. 21N, 3(c). The Supreme Judicial Court disagreed, holding (1) the Department and the Executive Office of Energy and Environmental Affairs have the authority to promulgate regulations under section 3(d) to establish emission limits on the electric sector; (2) the projected effects of the Cap Regulation do not render section 3(d) arbitrary and capricious or inconsistent with the statutory purpose of reducing emissions; and (3) the Legislature did not intend to render section 3(d) meaningless after December 31, 2020. View "New England Power Generators Ass’n v. Department of Environmental Protection" on Justia Law

The Natural Gas Act (NGA) requires a Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission, 15 U.S.C. 717f(c)(1)(A), for construction or operation of a natural gas pipeline, which requires compliance with other legal mandates. Transco sought a Certificate for expansion of its natural-gas distribution network, then received Water Quality Certification under the Clean Water Act, (CWA) 33 U.S.C. 1341(a)(1) from the Pennsylvania Department of Environmental Protection (PADEP), subject to conditions requiring a permit under the National Pollutant Discharge Elimination System, for discharges of water during hydrostatic pipeline testing, and state permits, covering erosion and sediment disturbance and obstructions and encroachments on Pennsylvania waters. Transco challenged the conditions in the Third Circuit under the NGA and before the Pennsylvania Environmental Hearing Board.The Third Circuit concluded that it has jurisdiction; NGA provides “original and exclusive jurisdiction" to review a state agency’s “action” taken “pursuant to Federal law to issue . . . any . . . concurrence” that federal law requires for the construction of a natural-gas transportation facility. PADEP issues Water Quality Certifications “pursuant to federal law," which requires PADEP concurrence before construction can proceed. The court then rejected claims that PADEP failed to provide public notice the CWA requires and acted arbitrarily by issuing a Certification that was immediately effective despite being conditioned on obtaining additional permits; that PADEP’s decision violated the Due Process and Takings Clauses, given that the approval was necessary for Transco to begin eminent domain proceedings; and that the approval violated PADEP’s obligation to safeguard the Commonwealth’s natural resources. View "Delaware Riverkeeper Network v. Secretary Pennsylvania Department of Environmental Protection" on Justia Law

At issue was whether dredging and beach nourishment projects undertaken by the Town of Dennis requiring that materials dredged from the mouth of a tidal river be deposited on a publicly-owned beach rather than a privately-owned beach violated state environmental regulations.Plaintiffs sought injunctive relief and a declaratory judgment claiming that the Town’s actions violated a regulation of the Department of Environmental Protection designed to protect beaches that are downdraft from jetties from loss of sediments caused by the jetties. The superior court allowed Plaintiffs’ motion for summary judgment and issued an injunction permanently requiring the Town periodically to redredge the river and to deposit the dredged material on Plaintiffs’ private beach.The Supreme Judicial Court vacated the order of injunction and reversed the judgment allowing summary judgment for Plaintiffs, holding (1) Plaintiffs failed to show that the Town’s extension of the jetty violated the requirements of 310 Code Mass. Regs. 10.27(4)(c); and (2) the Town’s subsequent dredging of the river did not trigger the requirements of that regulation. View "Miramar Park Ass’n. v. Town of Dennis" on Justia Law

The Ninth Circuit denied a petition for review challenging the EPA's approval of a 1994 revision to Montana's State Implementation Plan. The panel held that the EPA's interpretation of "a 2-year period which precedes the particular date" was a permissible one. Therefore, the EPA's approval of Montana's 2015 Implementation Plan was neither arbitrary nor capricious, and Information Center's comment regarding Montana's interpretation of the language in question raised a question of implementation, better addressed at a different time. View "Montana Environmental Information Center v. Thomas" on Justia Law

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

The subject of the public trust at issue in this case was the Scott River in Siskiyou County, California, a tributary of the Klamath River and a navigable waterway for the purposes of the public trust doctrine. The Court of Appeal surmised this appeal presented two questions involving the application of the public trust doctrine to groundwater extraction: whether the doctrine had ever applied to groundwater, and if so, whether the 2014 Sustainable Groundwater Management Act (SGMA) abrogated whatever application it might have had, replacing it with statutory rules passed by the Legislature. The Court felt there was no specific and concrete allegation that any action or forbearance to act by the State Water Resources Control Board (Board) or permit issued by County of Siskiyou (County) to extract groundwater actually violated the public trust doctrine by damaging the water resources held in trust for the public by the Board or the County. Rather, the Environmental Law Foundation and associated fishery organizations Pacific Coast Federation of Fishermen’s Association and Institute for Fisheries Resources (collectively ELF), the Board, and the County sought the Court's opinion as to whether the public trust doctrine mandated the Board and the County a public trust duty to consider whether the extractions of groundwater adversely affected public trust uses of the Scott River and whether SGMA took those duties away. The scope of the Court's ruling was narrow; the Court found the Legislature had not released the Scott River from the public trust nor dissolve the public trust doctrine within the text or scope of SGMA. View "Environmental Law Foundation v. State Water Resources Control Bd." on Justia Law

Portersville Bay Oyster Company, LLC ("the Oyster Company"), and its members, filed suit against 4H Construction Corporation, Greystone Industries, LLC, and Christopher Blankenship, in his official capacity as Commissioner of the Alabama Department of Conservation and Natural Resources, and filed an interlocutory appeal challenging the trial court's order dismissing Commissioner Blankenship as a defendant in this action. Tensaw Land & Timber Company, Inc. ("Tensaw"), owned land fronting on Portersville Bay which it leased its statutory right to grow and to harvest oysters on the bottom in Portersville Bay to the Oyster Company. The Alabama Department of Conservation and Natural Resources ("the Department") grants shellfish aquaculture easements on state-owned submerged lands for the purpose of cultivating and harvesting shellfish, including oysters. The Department conveyed to the Corneliuses a shellfish aquaculture easement allowing them to raise oysters in cages above the area encompassed by one of the Tensaw leases. Subject to certain exceptions, the riparian landowner does not have the right to harvest oysters in elevated cages within 600 yards from the shoreline in front of the waterfront property; the shellfish aquaculture easement enables the oyster farmers to grow oysters in elevated cages in the area of the easement. The oysters grown elsewhere on the Tensaw leases were grown on the bottom. 4H Construction Corporation contracted with the Department to construct a breakwater and marsh for coastal protection in Mobile Bay ("the Marsh Island project"). According to the allegations of the complaint, the sediment and silt deposits have increased over time and are killing the oysters being farmed on those oyster beds. The Oyster Company sued the Commissioner alleging negligence and nuisance relating to the easement. The Commissioner moved to dismiss for failure to state a claim and improper venue; the trial court granted the motion to transfer but not the motion to dismiss. After filing an amended complaint, the trial court dismissed the amended complaint against the Commissioner. The Alabama Supreme Court determined that dismissal was made in error, and reversed the trial court's order. View "Portersville Bay Oyster Company, LLC v. Blankenship" on Justia Law

After a challenge to its 2004 general plan, San Francisco, acting under court order, prepared an environmental impact report (EIR) pursuant to the California Environmental Quality Act (Pub. Resources Code 21000) and approved revisions of the housing element of its general plan. The 2009 Housing Element examined the type, amount, and affordability of new construction needed, as determined by the Association of Bay Area Governments, which determined that San Francisco’s fair share of the regional housing for January 2007 through June 2014 would be 31,190 units, or about 4,160 units per year. The stated goal was to “alleviate a tight housing market.” In certifying the EIR, the planning department notified the public that the 2009 Housing Element, by encouraging housing near transit lines, will have a single, significant, unavoidable environmental impact on transit that cannot be mitigated to a level of insignificance. Opponents filed a petition for writ of mandate challenging the adequacy of EIR. The trial court denied relief. The court of appeal affirmed. The EIR addresses mitigation measures proposed by the opponents. The Housing Element EIR adequately analyzed the impacts on water, traffic, land use, and visual resources by using the future conditions projected by ABAG, rather than analyzing the existing conditions. View "San Franciscans for Livable Neighborhoods v. City and County of San Francisco" on Justia Law

The Court of Appeal reversed the trial court's ruling that the city violated the California Environmental Quality Act (CEQA) because the city treated the creation of a new subzone as follow-on to its prior, initial approval of a Target store rather than as an entirely new "project" under CEQA. The court held that the city's ordinance should be examined under Public Resources Code section 21166, and that the city complied with CEQA in proceeding by way of an addendum to the prior environmental impact report because substantial evidence supported the city's finding that the specific plan amendment would not have any reasonably foreseeable environmental consequences beyond the construction of the Super Target store. The court also held that the ordinance constituted "spot zoning," but that it was permissible because the city did not abuse its discretion in finding that its amendment to the specific plan was in the public interest and compatible with the general plans of which it was a part. View "Citizens Coalition Los Angeles v. City of Los Angeles" on Justia Law

Coal residuals, “one of the largest industrial waste streams,” contain myriad carcinogens and neurotoxins. Power plants generally store it on site in aging piles or pools, risking protracted leakage and catastrophic structural failure. Regulations implementing the 1976 Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901, were long delayed. The Environmental Protection Agency (EPA), facing public outrage over catastrophic failures at toxic coal residual sites, and directed by a federal court to comply with its obligations under RCRA, promulgated its first Final Rule regulating coal residuals in 2015, 80 Fed. Reg. 21,302. Opponents challenged that Rule under the Administrative Procedure Act and RCRA, which requires EPA to promulgate criteria distinguishing permissible “sanitary landfills” from prohibited “open dumps.” Each claim relates to how coal residuals disposal sites qualify as sanitary landfills. EPA announced its intent to reconsider the Rule. The D.C. Circuit denied the EPA’s abeyance motion; remanded as to pile-size and beneficial-use issues; vacated 40 C.F.R. 257.101, which allows for the continued operation of unlined impoundments and a provision that treats “clay-lined” units as if they were lined; found the Rule’s “legacy ponds” exemption unreasoned and arbitrary; rejected claims by industry members that EPA may regulate only active impoundments; found that EPA provided sufficient notice of its intention to apply aquifer location criteria to existing impoundments; and held that EPA did not arbitrarily issue location requirements based on seismic impact zones nor arbitrarily impose temporary closure procedures. View "Utility Solid Waste Activities v. Environmental Protection Agency" on Justia Law