Justia Environmental Law Opinion Summaries

DTE's Monroe plaint is the largest coal-fired power plant in Michigan; in 2010, DTE undertook a $65 million overhaul. The day before construction began, DTE submitted notice to the Michigan Department of Environmental Quality stating that DTE predicted an increase in post-construction emissions 100 times greater than the minimum necessary to constitute a “major modification” and require a preconstruction permit. DTE characterized the projects as routine maintenance,exempt from New Source Review (NSR) under the Clean Air Act, 42 U.S.C. 7475, 7503, and stated that it had excluded the entire predicted emissions increase from its projections of post-construction emissions based on “demand growth.” DTE began construction without an NSR permit. The EPA filed suit. In 2013, the Sixth Circuit held that a utility seeking to modify a source of air pollutants must “make a preconstruction projection of whether and to what extent emissions from the source will increase following construction,” which “determines whether the project constitutes a ‘major modification’ and thus requires a permit.” On remand, the district court again entered summary judgment for DTE, concluding that the EPA had to accept DTE’s projections at face value. The Sixth Circuit reversed. DTE was not required to secure the EPA’s approval of the projections, or the project, before construction, but in proceeding without a permit, DTE acted at its own risk. The EPA can challenge DTE’s preconstruction projections and there are genuine disputes of material fact that preclude summary judgment regarding compliance with NSR’s preconstruction requirements. The court noted that construction is complete and that actual post-construction emissions are irrelevant o whether DTE’s preconstruction projections complied with the regulations. View "United States v. DTE Energy Co." on Justia Law

Plaintiffs, several environmental groups, filed suit against the Fola Coal Company alleging that it had violated the Clean Water Act (CWA), 33 U.S.C. 1251, and seeking injunctive relief. Plaintiffs alleged that the company discharged ions and sulfates in sufficient quantities to cause increased conductivity in the Stillhouse Branch tributary and waterway, which resulted in a violation of water quality standards. The district court found that the company had indeed violated the Act and ordered it to take corrective measures. The court concluded that, because the company did not comply with the conditions of its National Pollution Discharge Elimination System (“NPDES”) permit, the permit does not shield it from liability under the CWA. Therefore, the district court properly ordered appropriate remedial measures. The court affirmed the judgment. View "Ohio Valley Environmental Coalition v. Fola Coal Company, LLC" on Justia Law

Plaintiff-Appellant Asarco, LLC appeals the entry of summary judgment against it in its contribution action against Noranda Mining, Inc., under Section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). The district court held that Asarco was judicially estopped from pursuing its claim because of representations it made to a bankruptcy court concerning its settlement agreement with the EPA for the site in question. After review, the Tenth Circuit reversed, finding that the district court abused its discretion in applying judicial estoppel: "The overall context of the CERCLA settlement approved by the bankruptcy court makes it apparent that Asarco's positions are not clearly inconsistent, that to allow Asarco to pursue its claim would not create the perception that a court was misled, and that Asarco would not necessarily gain an unfair advantage by being allowed to pursue its claim now." View "Asarco v. Noranda Mining" on Justia Law

Connecticut Energy Marketers Association brought this action against the Department of Energy and Environmental Protection and the Public Utilities Regulatory Authority (collectively, Defendants) alleging that Defendants violated the Environmental Policy Act when Defendants approved a plan for a significant expansion of the use of natural gas in the state without evaluating the environmental impact of an increase in the use of natural gas pursuant to Conn. Gen. Stat. 22a-1b(c). Defendants filed separate motions to dismiss, arguing that no environmental impact evaluation was required because Defendants’ activities did not constitute “actions which may significantly affect the environment” for purposes of section 22a-1b(c). The trial court agreed and dismissed the complaint. The Supreme Court affirmed, holding that the trial court did not err in granting Defendants’ motions to dismiss on the ground that the requirement of an environmental impact evaluation in section 22a-1b(c) does not apply to Defendants’ activities in this case. View "Connecticut Energy Marketers Ass’n v. Department of Energy & Environmental Protection" on Justia Law

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

In Montana’s ongoing water rights claims adjudication proceedings, the Bureau of Land Management (BLM) filed six water right claims related to one natural pothole and five reservoirs. The water sources were located wholly or partially on federal land. The BLM claimed the right to use each source for stock watering by its grazing permittees and for wildlife. Certain objectors (Objectors) raised objections to each claim, arguing that the BLM did not perfect any water rights. The Water Master recommended summary judgment in favor of the BLM on each claim. The Water Court granted partial summary judgment to the BLM and remanded a portion of the pothole claim to the Master for further proceedings. The Supreme Court affirmed, holding (1) the Water Court correctly found that the BLM properly perfected state law water rights in the reservoirs; and (2) The Water Court did not err in granting partial summary judgment on the pothole claim. View "Bureau of Land Management - Barthelmess" on Justia Law

Plaintiffs challenge the BLM's approval of the Mt. Hope Project, a proposed molybdenum mining operation near Eureka, Nevada. Plaintiffs argue that the BLM’s review of the Project under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., was inadequate and that the approval of the Project violated the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1732(b), and the laws governing lands withdrawn under the executive order known as Public Water Reserve No. 107 (PWR 107). The court agreed with plaintiffs' assertion that the BLM’s selection of baseline levels of certain air pollutants was unreasonable and that the BLM’s analysis of cumulative impacts was deficient. The court declined to address plaintiffs' PWR 107 claims because the BLM should be given an opportunity to fix the errors in its analysis of the Project under NEPA before challenges to the approval of the Project itself are entertained, and the proper analysis of the PWR 107 claim turns in large part on whether four springs in the area of the Project are “covered” by PWR 107, but the BLM’s position on that question is unclear. Accordingly, the court affirmed in part, reversed in part, vacated in part, and remanded with instructions to vacate the record of decision and remand to the BLM. View "Great Basin Resource Watch v. BLM" on Justia Law

Petitioner is a trade association representing the domestic biofuel industry. In this appeal, petitioner challenges EPA's decision to allow a group of Argentine biofuel producers and other companies to use certain recordkeeping practices in connection with sales of their product in the United States. Petitioner separately challenges the regulation, promulgated in 2010, pursuant to which EPA granted the Argentine application. The court concluded that petitioner's challenge to the 2010 regulation is untimely, and EPA’s decision to grant the Argentine application was neither arbitrary nor capricious, as it comports with agency regulations and rests upon the kind of highly technical judgments to which the court owes agencies great deference. Accordingly, the court dismissed the petition in case number 15-1073 and denied the petition in case number 15-1072. View "National Biodiesel Board v. EPA" on Justia Law

At issue in this case was the proposed construction of a twenty-two-mile toll road in North Carolina called the Gaston East-West Connector. Two Conservation Groups brought suit against the North Carolina Department of Transportation (NCDOT), the Federal Highway Administration (collectively, the Agencies), and others, challenging the environmental analysis conducted for the Connector. The district court granted summary judgment for the Conservation Groups, concluding that the alternatives analysis underlying the Connector violated National Environmental Policy Act and the Administrative Procedure Act and that the Agencies failed adequately to assess and disclose the Connector’s environmental impacts. NCDOT appealed. Before the district court ruled, however, the Connector was stripped of its funding, and the statute that expressly authorized its construction was repealed. Following the district court’s ruling, the Connector was removed from local and state transportation plans. The Fourth District vacated the district court’s judgment and remanded with instructions that the district court dismiss the action, holding that the appeal was moot where the Connector was no longer viable. View "Catawba Riverkeeper Foundation v. North Carolina Department of Transportation" on Justia Law

Appellants appeal the district court's grant of summary judgment in favor of Appellees on Appellants' claims under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321. Appellants argue that Appellees' environment impact analysis for a new underground light rail line project in downtown Los Angeles was inadequate. As a preliminary matter, the court declined to take judicial notice of the three documents on Metro’s website. The court declined to consider Japanese Village’s argument that the mitigation monitoring and report plan (MMRP) was not properly attached to the Record of Decision (ROD). The court rejected Japanese Village's challenges to the adequacy of the mitigation plan included in the Final Environmental Impact Statement (FEIS) regarding construction-related noise and vibration; operational noise and vibration; subsidence; and parking. The court also rejected Bonaventure's claims that Appellees (1) failed to analyze Closed-Face TBM construction as a reasonable alternative tunneling method for the Lower Flower portion of the Project in the FEIS; (2) failed to adequately analyze certain impacts and impermissibly deferred certain mitigation analyses in the FEIS; and (3) failed to prepare a Supplemental EIS to analyze nighttime construction. Accordingly, the court affirmed the judgment. View "Japanese Village, LLC v. FTA" on Justia Law