Justia Environmental Law Opinion Summaries

This appeal concerns the Navy’s peacetime use of Surveillance Towed Array Sensor System Low Frequency Active sonar (LFA sonar). At issue is whether NMFS correctly authorized the incidental take of marine mammals in connection with the Navy’s use of LFA sonar for training, testing, and routine operations. The district court granted summary judgment to defendants on the issue of Marine Mammal Protection Act (MMPA), 16 U.S.C. 1371(a)(5)(A)(i), compliance. The court concluded that NMFS is required to prescribe regulations to achieve the “least practicable adverse impact” before it can authorize incidental take, and NMFS's proposed mitigation measures failed to do so. In this case, NMFS should have considered whether additional mitigation measures were necessary to achieve the least practicable adverse impact on marine mammals, and also whether these mitigation measures would be practicable in light of the Navy’s need for effective military readiness training. While NMFS’s finding that LFA sonar operations will have a “negligible impact” on marine mammal populations is a required element for approval of incidental take, it is not a substitute for an analysis of whether the proposed mitigation measures in the 2012 Final Rule reduce the impact of incidental take on marine mammals to the lowest level practicable. NMFS also did not give adequate protection to areas of the world’s oceans flagged by its own experts as biologically important. Accordingly, the court reversed and remanded for further proceedings. View "NRDC v. Pritzker" on Justia Law

Petitioners challenge the EPA's action disapproving Oklahoma’s and Texas’s plans for controlling regional haze and imposing EPA’s own plans instead. The court denied EPA’s motion to dismiss or transfer because the Clean Air Act, 42 U.S.C. 7401, gives jurisdiction over petitions for review to the courts of appeal generally and because the Act’s forum selection clause designates the regional circuit as the appropriate venue for this challenge. The court granted the motion for a stay pending resolution of the petitions for review on the merits because petitioners have demonstrated a strong likelihood of success on the merits, because they are likely to suffer irreparable injury in the absence of a stay while EPA has not shown similar injury from the issuance of a stay, and because the public interest weighs in favor of a stay. View "State of Texas v. EPA" on Justia Law

The department and the developer appealed from a judgment granting a mandate petition. The litigation and appeal arise from the department's December 3, 2010: certification of the revised final environmental impact statement and impact report; approval of the Newhall Ranch Resource Management and Development Plan; the adoption of the Spineflower Conservation Plan and Master Streambed Alteration Agreement; and issuance of two incidental take permits. The court issued an opinion reversing the October 15, 2012 judgment, the Supreme Court granted review, and the case was remanded to the court. In the published portion of this opinion, the court discussed the developer's contention, concurred in by the department, that the court should supervise compliance with a writ of mandate. The court concluded that it does not have the authority to issue its own writ of mandate and then supervise compliance with its orders because the court is reviewing this case on direct appeal. Accordingly, the court reversed in part and affirmed in part. View "Center for Biological Diversity v. Dept. of Fish and Wildlife" on Justia Law

Petitioners were a group of miners who operated small suction dredges in Oregon waterways. They challenged the lawfulness of an order of the Department of Environmental Quality (DEQ) adopting a general five-year permit that regulated that type of mining. By the time the challenge reached the Court of Appeals, however, the permit had expired. The agency then moved to dismiss petitioners’ challenge on mootness grounds. The Court of Appeals agreed and dismissed. Petitioners sought review of the dismissal arguing that their case was not moot, or in the alternative, their challenge nevertheless was justiciable under ORS 14.175 because it is the sort of action that is capable of repetition and likely to evade judicial review. The Oregon Supreme Court concluded that the petitioners’ challenge to the now-expired permit was moot. But the Court agreed with petitioners that it was justiciable under ORS 14.175. The Court therefore reversed the decision of the Court of Appeals and remanded for further proceedings. View "Eastern Oregon Mining Association v. Dept. of Env. Quality" on Justia Law

Plaintiffs filed suit alleging that the FWS violated its statutory authority under Public Law 99-625 by terminating a translocation program for the southern sea otter. The district court dismissed the complaint, concluding that it constituted a facial challenge to a 1987 regulation and was thus untimely. The court concluded that the operative agency action challenged is the 2012 program termination, and therefore plaintiffs’ 2013 challenge is timely. The court held only that plaintiffs may challenge FWS’s termination of the program within six years of the decision to terminate the program, and plaintiffs were not required to bring suit within six years of the 1987 rulemaking espousing the authority to terminate the program. To hold otherwise would require plaintiffs to have filed suit nearly a decade before FWS took the action that caused their injury. Accordingly, the court reversed and remanded. The district court on remand should decide if there is merit to plaintiffs’ position that FWS was without Congressional authority to terminate the translocation program. View "Cal. Sea Urchin Comm'n v. Bean" on Justia Law

Plaintiffs challenge the adequacy of the environmental review conducted by the Corps before it issued a permit pursuant to section 404 of the Clean Water Act, 33 U.S.C. 1344, authorizing Raven Crest to discharge fill material into waters of the United States in conjunction with that mine. The district court granted the Corps’ and Raven Crest’s motions for summary judgment, holding that the Corps properly determined that the connection between surface coal mining and public health was an issue not properly within the scope of its environmental review. The court affirmed and concluded that this case is indistinguishable from the court's precedent in Ohio Valley Environmental Coalition v. Aracoma Coal Company, in which the court rejected a similar challenge. In Aracoma, the court held that the “specific activity” authorized by the section 404 permit was “nothing more than the filling of jurisdictional waters for the purpose of creating an underdrain system for the larger valley fill,” and that the Corps did not have sufficient control and responsibility over the entire valley fill to warrant including the entire project in the scope of the Corps’ environmental review. View "Ohio Valley Envtl. Coal. v. US Army Corps" on Justia Law

Plaintiffs filed suit alleging that the government violated various federal statutes by allowing Cape Wind's offshore energy project to move through the regulatory approval process. The Bureau allegedly violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4332(2)(C), the Shelf Lands Act, 43 U.S.C. 1337(p), the National Historic Preservation Act, 54 U.S.C. 306108, and the Migratory Bird Treaty Act, 16 U.S.C. 703(a). The Bureau and the United States Coast Guard allegedly violated the Coast Guard and Maritime Transportation Act, Pub. L. No. 109-241, 414, 120, Stat. 516, 540 (2006). The Fish and Wildlife Service allegedly violated the Endangered Species Act, 16 U.S.C. 1538. The district court rejected most of plaintiffs' claims and granted partial summary judgment to the government agencies. The district court then rejected plaintiffs’ remaining claims, granted summary judgment, and dismissed the case. The court reversed the district court’s judgment that the Bureau’s environmental impact statement complied with NEPA and that the Service’s incidental take statement complied with the Endangered Species Act, and the court vacated both statements. The court affirmed the district court's judgment dismissing plaintiffs' remaining claims, and remanded for further proceedings. View "Public Employees v. Hopper" on Justia Law

Defendants, four commercial boat captains, were charged with violating the Lacey Act, 16 U.S.C. 3372(a)(1), after they caught Atlantic striped bass in federal waters and later sold them. The district court granted defendants' motions to dismiss the indictment. The court concluded that the text of the fishery management plan created by the Commission and referenced by the Atlantic Striped Bass Conservation Act, 16 U.S.C. 5151, in fact regulates only state coastal waters, and accordingly does not regulate fishing in federal waters. Therefore, the court concluded that the Lacey Act does not except from prosecution defendants' conduct alleged in the indictments. The court also rejected the contention that the regulatory regime governing defendants' actions is unconstitutionally vague. Accordingly, the court reversed the orders of the district court dismissing the indictments and remanded the cases with instructions that the indictments be reinstated. View "United States v. Saunders" on Justia Law

The Association filed a petition for a writ of mandate challenging the approval of a shopping center project that would be adjacent to an established residential neighborhood. The trial court denied the writ petition and entered judgment in favor of the City. The court upheld the City's determination that the project was consistent with the Neighborhood Plan Prototype policies of the General Plan. The court concluded that when the rezoning policy is construed in light of the other provisions of the General Plan, the meaning of what is adequate mitigation under the circumstances must make allowances for the fact that mitigation is not required where it is infeasible. Therefore, the Association has failed to demonstrate that the City erred by simply adopting findings that did not require infeasible mitigation. Under the exhaustion doctrine, the court concluded that the Association's claims regarding other General Plan policies were not preserved and the court declined to consider them. The court also concluded that the City complied with the California Environmental Quality Act (CEQA), Public Resources Code section 21000 et seq. Finally, the court concluded that substantial evidence supports the City’s CEQA findings regarding urban decay and the statement of overriding considerations. Accordingly, the court affirmed the trial court's denial of the petition for writ of mandate. View "Naraghi Lakes Neighborhood Pres. Ass'n v. City of Modesto" on Justia Law

Panoche, a producer of electricity, and Pacific Gas and Electric Company (PG&E), a utility that purchases its electricity, disputed which of them should bear the costs of complying with a legislatively-mandated program to reduce greenhouse gas emissions pursuant to the Global Warming Solutions Act (Assem. Bill 32 (2005–2006 Reg. Sess.). PG&E invoked the arbitration clause in its agreement with Panoche. Panoche resisted arbitration, arguing that the controversy was not ripe for resolution because ongoing regulatory proceedings at the California Air Resources Board and the California Public Utilities Commission would at least provide guidance in the arbitration and could render the proceeding unnecessary. The arbitration panel denied Panoche’s motion, and after a hearing determined that Panoche had assumed the cost of implementing AB 32 under the agreement and understood that at the time of signing. The arbitrators also concluded that the parties “provide[ed] for recovery of GHG costs” by Panoche through a “payment mechanism” in the agreement. The trial court agreed with Panoche, ruled that the arbitration was premature, and vacated the award. The court of appeal reversed and ordered confirmation of the award. Panoche identified no procedural disadvantage it suffered in going forward with the arbitration as scheduled and failed to meet the “sufficient cause” prong under Code of Civil Procedure 1286.2(a)(5). View "Panoche Energy Ctr. v. Pac. Gas & Elec." on Justia Law