Justia Environmental Law Opinion Summaries

Nearly 20 years after defendants built, sold, and leased back a Rockport Indiana coal-burning power plant, they committed, in a consent decree resolving lawsuits involving alleged Clean Air Act violations at their other power plants, to either make over a billion dollars of emission control improvements to the plant, or shut it down. The sale and leaseback arrangement was a means of financing construction. Defendants then obtained a modification to the consent decree providing that these improvements need not be made until after their lease expired, pushing their commitments to improve the air quality of the plant’s emissions to the plaintiff, the investors who had financed construction and who would own the plant after the 33-year lease term. The district court held this encumbrance did not violate the parties’ contracts governing the sale and leaseback, and that plaintiff’s breach of contract claims precluded it from maintaining an alternative cause of action for breach of the covenant of good faith and fair dealing. The Sixth Circuit reversed, holding that a Permitted Lien exception in the lease unambiguously supports the plaintiff’s position and that the defendants’ actions “materially adversely affected’ plaintiff’s interests. View "Wilmington Trust Co. v. AEP Generating Co." on Justia Law

SCAP petitioned for review of an objection letter sent by the EPA regarding draft permits for water reclamation plants in El Monte and Pomona, California. The court concluded that neither 33 U.S.C. 1369(b)(1)(E) or (F) provides the court subject matter jurisdiction to review the Objection Letter. The court explained that even when a state assumes primary responsibility for issuing National Pollutant Discharge Elimination System (NPDES) permits, EPA retains supervisory authority over state permitting programs under 33 U.S.C. 1342(d). In this case, the L.A. Board chose to revise the Draft Permits and retain control of the NPDES permitting process for the Plants, and the permits were issued through the State of California, not EPA. The court concluded that the appropriate avenue for SCAP to seek redress was through the State's review process. Accordingly, the court dismissed the petition for review. View "Southern California Alliance of Publicly Owned Treatment Works v. EPA" on Justia Law

The Services issued a Final Rule in 2012 designating 9.5 million acres of federal forest lands in California, Oregon, and Washington as critical habitat for the northern spotted owl. The Council filed suit challenging the legality of the critical habitat designation. The court concluded, in light of its decision in Mountain States Legal Foundation v. Glickman, that the Council had standing to challenge the designation because it has demonstrated a substantial probability that the critical habitat designation will cause a decrease in the supply of timber from the designated forest lands, that Council members obtain their timber from those forest lands, and that Council members will suffer economic harm as a result of the decrease in the timber supply from those forest lands. Accordingly, the court reversed the district court's decision stating otherwise and remanded for further proceedings. View "Carpenters Industrial Council v. Zinke" on Justia Law

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9603, and the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 11004, require parties to notify authorities when large quantities of hazardous materials are released into the environment. In 2008, the EPA issued a final rule that generally exempts farms from CERCLA and EPCRA reporting requirements for air released from animal waste. The EPA reasoned that the reports were unnecessary because, in most cases, federal response was impractical and unlikely. The court concluded that petitioners have informational standing and proceeded to the merits. The court granted the petition for review and vacated the Final Rule, concluding that the EPA's action cannot be justified either as a reasonable interpretation of any statutory ambiguity or implementation of a de minimis exception. The Pork Producers' challenge was moot and the court dismissed their petition. View "Waterkeeper Alliance v. EPA" on Justia Law

The State Air Resources Board (ARB) was charged with achieving the goal of regulating greenhouse gas pursuant to the California Global Warming Solutions Act of 2006, Health & Saf. Code, 38500 et seq. At issue are the low carbon fuel standards (LCFS) the ARB promulgated. In 2009, the ARB violated the California Environmental Quality Act (CEQA), Pub. Resources Code, 21000 et seq., when it adopted the original LCFS regulations. In 2013, the court identified the violations and directed the issuance of a writ of mandate compelling ARB to take corrective action. At issue in this appeal was whether ARB's disclosures about the project's effects on biodiesel consumption, and the related increases in nitrogen oxide (NOx) emissions, satisfied paragraph 3 of the writ of mandate. The court concluded that ARB's view that the "project" included only the regulations adopted in 2015 was wrong and explains why it incorrectly chose 2014 NOx emissions as the baseline. The court explained that the proper baseline for a project normally is the conditions existing when the environmental review of the project is commenced -- 2009, in this case. Therefore, ARB's use of 2014 NOx emissions as the baseline was improper and generated flawed results when that baseline was plugged into the formula for calculating environmental change. The court concluded that ARB's flawed analysis of NOx emissions did not cure the CEQA violation identified in Poet I or comply with paragraph 3 of the writ. The court reversed the order discharging the writ and remanded for further proceedings under a modified writ. View "Poet, LLC v. State Air Resources Board" on Justia Law

Plaintiffs, individuals who breed and sell animals, filed the underlying action in district court, challenging a 2012 rule in which the Fish and Wildlife Service designated as injurious four species of snakes. At issue on appeal was the shipment clause in the Lacey Act, 18 U.S.C. 42(a)(1), which bars "any shipment" of certain injurious species of animals "between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States." Plaintiffs argued that the Service lacks authority under the Lacey Act to prohibit transportation of the listed species between the 49 continental States. The court agreed with the district court that the shipment clause has no bearing on shipments of animals from one of the 49 continental States to another. Accordingly, the court affirmed the district court's judgment in favor of plaintiffs. View "U.S. Assoc. of Reptile Keepers v. Zinke" on Justia Law

Transco, which operates the 10,000-mile-long Transcontinental Pipeline from South Texas to New York City, sought a certificate of public convenience and necessity for the Leidy Southeast Expansion Project, including construction of four new pipeline “loops” and the upgrade of turbines at four compressor stations. The Skillman Loop and the Pleasant Run Loop, totaling 13.23 miles, would be located in New Jersey; the Franklin Loop and Dorrance Loop, totaling 16.74 miles, would be located in Pennsylvania. The Federal Energy Regulatory Commission (FERC) completed the requisite Environmental Assessment and issued the certificate in December 2014, conditioned on Transco’s receipt of “all applicable authorizations under federal law” enumerated in the Environmental Assessment, including from New Jersey and Pennsylvania. Pursuant to the Clean Water Act, the Pennsylvania and New Jersey Departments of Environmental Protection (PADEP, NJDEP) reviewed Transco’s proposal for potential water quality impacts and issued. In consolidated appeals, the Third Circuit upheld the approvals. NJDEP and PADEP did not act arbitrarily or capriciously in issuing the permits. View "New Jersey Conservation Foundation v. New Jersey Department of Environmental Protection" on Justia Law

This extensive litigation arose when Arizona clashed with the EPA over its State Implementation Plan (SIP) required under a new regulatory scheme codified in Section 169A of the Clean Air Act (CAA), 42 U.S.C. 7491(b). The scheme required each state with emissions impacting protected federal lands to create a SIP describing how the state intended to make reasonable progress toward the national goal to improve air visibility in federal parks and forests. The EPA determined that Arizona could do better in improving visibility even if the SIP listed proposals to manage and reduce emissions from various industrial sources operated within the state. Arizona and several private companies (petitioners) subsequently objected to the EPA's most recent Federal Implementation Plan (FIP), which petitioners claim constituted invalid agency action. The court held that several of petitioners' objections to the FIP were not properly before it because they were not presented to the EPA during the notice-and-comment period. In regard to the remaining objections that were ripe for review regarding regulation of the cement kiln and copper smelters at issue, the court concluded that the EPA's emission-control measures were not arbitrary or capricious and thus constituted valid agency rulemaking. View "Arizona ex rel. Darwin v. EPA" on Justia Law

This California Environmental Quality Act (CEQA) dispute centered on whether an environmental impact report (EIR) must identify areas that might qualify as environmentally sensitive habitat areas (ESHA) under the California Coastal Act and account for those areas in its analysis of mitigation measures and project alternatives. The City of Newport Beach approved a project for the development of a parcel known as Banning Beach. Banning Ranch Conservancy (BRC) sought a writ of mandate to set aside the approval, alleging (1) the EIR was inadequate, and (2) the City violated a general plan provision by failing to work with the California Coastal Commission to identify wetlands and habitats. The trial court found the EIR sufficient but concluded that the general plan required the City to cooperate with the Coastal Commission before approving the project. The Court of Appeal (1) agreed that the EIR complied with CEQA requirements; but (2) reversed on the general plan issue. The Supreme Court reversed and granted BRC relief on its CEQA claim, holding (1) CEQA requires an EIR to identify areas that might qualify as ESHA under the Coastal Act; and (2) the City’s failure to discuss ESHA requirements and impacts was neither insubstantial nor merely technical. View "Banning Ranch Conservancy v. City of Newport Beach" on Justia Law

Santa Cruz County adopted three ordinances that extended minor exceptions to zoning site standards; altered certain height, density, and parking requirements for hotels in commercial districts; and established an administrative process for approving minor exceptions to the sign ordinance. Aptos argued that the county engaged in piecemeal environmental review in violation of the California Environmental Quality Act (CEQA) (Pub. Resources Code, 21000) when it considered the ordinances separately and failed to act in the manner prescribed by CEQA when it approved a negative declaration for the ordinance altering height, density, and parking requirements for hotels in commercial districts, because it failed to consider the environmental impacts that may ensue from future hotel developments. The court of appeal rejected those arguments. Although the county is in the process of modernizing some of its zoning regulations, this modernization process does not constitute a single project under CEQA. The court upheld the negative declaration for the hotel ordinance as adequate. The county should consider the potential environmental impacts resulting from reasonably foreseeable future development resulting from the ordinance. Future hotel developments, however, were wholly speculative at the time the negative declaration was adopted. View "Aptos Council v. County of Santa Cruz" on Justia Law