Justia Environmental Law Opinion Summaries

The DC Circuit denied Big Bend's petitions for review of FERC's two orders authorizing facilities to export natural gas from the United States to Mexico. The court held that it lacked jurisdiction to consider Big Bend's argument that the Trans-Pecos Pipeline is an export facility because Big Bend failed to present this argument to FERC on rehearing. The court also held that substantial evidence supported FERC's finding that the Trans-Pecos Pipeline was a non-jurisdictional intrastate pipeline subject to regulation by the State of Texas; the Trans-Pecos Pipeline was not subject to federal jurisdiction; and the court declined to adopt the theory that FERC's involvement in authorizing the Export Facility was enough to federalize the pipeline. View "Big Bend Conservation Alliance v. FERC" on Justia Law

In 2008, plaintiffs filed a class action concerning 540 properties in Dayton’s McCook Field neighborhood, alleging that the groundwater is contaminated with carcinogenic volatile organic compounds, released by defendants’ automotive and dry cleaning facilities. The EPA designated the area as a Superfund site. Plaintiffs have access to municipal drinking water but the contaminated groundwater creates the risk of VOC vapor intrusion into buildings so that Plaintiffs may inhale carcinogenic and hazardous substances. A school was closed and demolished when vapor mitigation systems were unable to adequately contain the levels of harmful substances. After the suit was removed to federal court under the Class Action Fairness Act, 28 U.S.C. 1332(d)(2) and consolidated with related actions, Plaintiffs sought Rule 23(b)(3) liability-only class certification for five of their 11 causes of action—private nuisance, negligence, negligence per se, strict liability, and unjust enrichment. Alternatively, they requested Rule 23(c)(4) certification of seven common issues. The court determined that although the proposed classes satisfied Rule 23(a)’s prerequisites, Ohio law regarding injury-in-fact and causation meant that plaintiffs could not meet Rule 23(b)(3)’s predominance requirement and denied certification of the proposed liability-only classes. The court then employed the “broad view” and certified seven issues for class treatment. The Sixth Circuit affirmed. The certified classes satisfy requirements of predominance and superiority. Each issue may be resolved with common proof and individualized inquiries do not outweigh common questions. Class treatment of the certified issues will not resolve liability entirely, but will materially advance the litigation. View "Martin v. Behr Dayton Thermal Products, LLC" on Justia Law

The Inholders own patented mining and homestead claims within the Santa Fe National Forest. The 2011 Las Conchas Fire caused widespread destruction of vegetation within the forest. Forest Roads 89 and 268, which the Inholders had used to access their properties, were severely damaged by subsequent flooding. The Forest Service notified them that the roads were “impassible” and that it would provide them with limited access: “a combination of driving and hiking over specific routes and under specific weather conditions.” Later, the Service sent a letter stating that “public safety would be highly threatened by use of” the roads; that it would close the roads to public access for the foreseeable future; that because of continuing terrain instability, any reconstruction would likely be destroyed by future flooding; and, even if reconstruction were possible, the Service could not justify expending public funds when there is no general public need. The Service suggested that the Inholders work “collectively” to reconstruct the roads. The Inholders claimed that they held statutorily-granted easements. The USDA disagreed, citing 90 Stat. 2743, but acknowledged that the Inholders had a right to access their properties, “subject to reasonable regulations.” The Inholders claimed a compensable taking. The Federal Circuit affirmed the Claims Court’s dismissal, finding that the Inholders had not adequately pled a physical taking and that any regulatory taking claim was not ripe because the Inholders had not applied for a permit to reconstruct the roads. View "Martin v. United States" on Justia Law

In 2015, PennEast Pipeline sought a certificate to build a natural gas pipeline running through Pennsylvania and New Jersey. Riverkeeper intervened to oppose the project. In 2016, while the Commission was still reviewing the proposal, Riverkeeper filed suit seeking declaratory relief against the Commission and its members, alleging that FERC's funding structure creates structural bias, in violation of the Due Process Clause of the Fifth Amendment, by incentivizing the Commission to approve new pipelines in order to secure additional sources for its future funding. Riverkeeper also challenged the Commission's use of tolling orders to satisfy its 30-day deadline for acting on rehearing applications. The district court dismissed the complaint for failure to state a claim.The DC Circuit held that Riverkeeper properly filed this case in the district court; Riverkeeper established Article III standing; and Riverkeeper had a viable cause of action. On the merits, the court held that the Environmental Rights Amendment did not create federally protected liberty or property interests, much less ones that FERC could infringe; and regardless of whether any protected liberty or property interests were implicated, the Commission was not a structurally biased adjudicator, and its use of tolling orders was not facially unconstitutional. View "Delaware Riverkeeper Network v. FERC" on Justia Law

The DC Circuit denied Delaware's petition for review of the EPA's grant of an extension for a multistate region to comply with national ozone standards. After determining that Delaware may petition the court for review of the EPA's decision, the court held on the merits that the EPA had authority under 42 U.S.C. 7511(a)(5) to grant three states' requests to extend the Philadelphia Area's attainment date, even though Delaware was not among them. The court also held that the EPA did not act arbitrarily or capriciously when requiring New Jersey to comply only with its EPA-approved state implementation plans (SIP). Finally, the court rejected Delaware's contention that Maryland and Pennsylvania could not submit certifications of compliance with their SIPs without evidence to substantiate the certifications. View "Delaware Department of Natural Resources v. EPA" on Justia Law

The First Circuit upheld the decision of the Environmental Protection Agency (EPA) to impose a limit - through a National Pollutant Discharge Elimination System permit - on the amount of nitrogen that the Taunton Wastewater Treatment Plant may discharge.After the final permit issued, the City of Taunton, Massachusetts appealed to the Environmental Appeals Board (EAB), challenging both the need for any nitrogen limit and the specific limit that the permit imposed. The EAB denied the City’s administrative appeal on the merits. The City then appealed to the First Circuit, challenging the final agency action on various procedural and substantive grounds. The First Circuit affirmed, holding that none of the City’s procedural or substantive challenges had merit. View "City of Taunton v. United States Environmental Protection Agency" on Justia Law

The Corps and Bayou Bridge appealed the district court's grant of a preliminary injunction preventing Bayou Bridge from constructing a pipeline in part through the Atchafalaya Basin of southern Louisiana. The Fifth Circuit vacated the preliminary injunction, holding that the district court misperceived the applicable regulations, and the Corps' analysis, properly understood, vindicated its decision that an environmental assessment sufficed under these circumstances. In this case, the environmental assessments concerning the permit did not exhibit the Supreme Court's criteria for an arbitrary and capricious decision. Furthermore, the district court abused its discretion by misapplying applicable legal principles and by inadvertently but critically overlooking the Louisiana Wetland Rapid Assessment Method. Accordingly, the court remanded for further proceedings. View "Atchafalaya Basinkeeper v. U.S. Army Corps" on Justia Law

Petitioners challenged FERC's grant of a 30 year license to continue power generation on a portion of the Coosa River. The DC Circuit held that the Commission's environmental review and a biological opinion it relied on were unreasoned and unsupported by substantial evidence, and thus its issuance of the license was arbitrary and capricious. In this case, a review of the licensed project's impact on the environment and endangered species documented that the project would cause a 100% take of multiple endangered species; the Commission concluded that licensing the generation project would have no substantial impact on either the River's ecological condition or endangered species; and thus the Commission declined to factor in the decades of environmental damage already wrought by exploitation of the waterway for power generation and that damage's continuing ecological effects. The court dismissed the first petition, granted the second petition, vacated the licensing decision, and remanded for further proceedings. View "American Rivers and Alabama Rivers Alliance v. FERC" on Justia Law

Petitioners challenged the EPA's final rule entitled "NESHAP for Brick and Structural Clay Products Manufacturing; and NESHAP for Clay Ceramics Manufacturing" and the EPA's partial denial of reconsideration of the rule. Environmental petitioners contended that the EPA erred in its use of health-based standards for acid gas emissions, failed to properly explain its methodology in setting maximum achievable control technology-based (MACT) standards, and improperly allowed brick plants to meet alternative emissions floors. Industry petitioners contended that the EPA made multiple errors in its methodology in the rule.The DC Circuit denied the industry petitioners' petitions for review and granted the environmental petitioners' petition for review as to the EPA's use of a health threshold to set the emissions limit for acid gases; the EPA's ad hoc adjustments of upper prediction limit calculations; and the EPA's provision of alternative MACT floors for brick plants. The court denied the environmental petitioners' petition for review as to the general application of the upper prediction limit to limited datasets as defined by the EPA. The court remanded the rule for further proceedings. View "Sierra Club v. EPA" on Justia Law

The Clean Air Act did not grant movant an "unconditional right" to intervene in the government's suit. The Ninth Circuit affirmed the district court's denial of a motion to intervene in the government's Clean Air Act enforcement action against Volkswagen. The panel held that the Act's citizen suit provision did not grant movant an unconditional right to intervene under Federal Rule of Civil Procedure 24(a)(1) where 42 U.S.C. 7604(b)(1)(B)'s diligent prosecution bar circumscribed a citizen's right to intervene in an enforcement action under that same provision; a citizen who retained the right to file suit on his own, despite a government enforcement action, had no statutory right to intervene in that action; and the government was not suing to enforce a "standard, limitation, or order" within the meaning of the Act, and thus the diligent prosecution bar did not preclude movant's claims and he was free to bring his own citizen suit. In the alternative, movant's proposed complaints-in-intervention demonstrated that he was not seeking to enforce the provisions invoked by the government, and thus he could have filed his own suit and was not entitled to intervene in the government's action. View "Hill v. Volkswagen, AG" on Justia Law