Justia Environmental Law Opinion Summaries

After Big River, a Nucor competitor, received a permit from ADEQ to construct a new steel recycling and manufacturing facility in Osceola, Arkansas, Nucor filed a citizen suit under the Clean Air Act (CAA), 42 U.S.C. 7475, seeking injunctive relief to stop Big River from constructing or continuing to construct the steel mill. The district court dismissed the suit for lack of subject matter jurisdiction. The court concluded that, even though Nucor’s allegations that Big River violated the Arkansas State Implementation Plan (SIP) present a challenge to an “emission standard or limitation” as that term is defined in 42 U.S.C. 7604(f)(4), Nucor has not alleged the repeated or ongoing violations necessary to support a citizen suit under section 7604(a)(1). Accordingly, the district court did not err by concluding that it lacked jurisdiction under section 7604(a)(1). The court also concluded that the district court did not err by finding it lacked jurisdiction under section 7604(a)(3) to entertain Nucor’s allegations that Big River did not meet the requirements to obtain the Prevention of Significant Deterioration (PSD) permit needed to begin construction; the district court did not err by finding that the CAA does not authorize a preconstruction citizen suit against a party that already has obtained a permit; and the district court did not err in barring Nucor’s Title I claims based on the availability of Title V review. Therefore, the court affirmed the judgment. View "Nucor Steel - AR v. Big River Steel" on Justia Law

Plaintiffs challenged the BLM's decision to grant Tule a right-of-way on federal lands in southeast San Diego County. The BLM’s right-of-way grant permits Tule to construct and operate a wind energy project, which plaintiffs claim will harm birds in violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703–12, and the Bald and Golden Eagle Protection Act (Eagle Act), 16 U.S.C. 668–668d. Plaintiffs also allege that defendants failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321–70h, in a number of respects in preparing the Environmental Impact Statement (EIS). The court concluded that the district court properly determined that the EIS’s purpose-and need-statement was adequately broad, such that the agency’s decision was not foreordained; the BLM acted within its discretion in dismissing alternative proposals; the mitigation measures, including the 85-page Protection Plan, provide ample detail and adequate baseline data for the agency to evaluate the overall environmental impact of the Project; and the BLM's investigation took a hard look at the environmental impacts of the Project. The court held that plaintiffs’ argument that the Project will inevitably result in migratory-bird fatalities, even if true, is unavailing because the MBTA does not contemplate attenuated secondary liability on agencies like the BLM that act in a purely regulatory capacity, and whose regulatory acts do not directly or proximately cause the “take” of migratory birds, within the meaning of 16 U.S.C. 703(a). The court further held that the BLM’s regulatory role in this case is too far removed from the ultimate legal violation to be independently unlawful under the Administrative Procedure Act (APA), 5 U.S.C. 701-06. Finally, in regard to the Eagle Act, the court held that, in the narrow circumstances of this case, the BLM did not, by granting Tule the referenced right-of-way, take “agency actions . . . implemented by the agency itself” that would directly or proximately result in the incidental take of eagles by it or Tule. Accordingly, the court affirmed the district court's grant of summary judgment for federal agencies and officials, as well as Tule. View "Protect Our Communities Found. v. Jewell" on Justia Law

Cottonwood Creek watershed was an area covering approximately 379 square miles in parts of Logan, Oklahoma, Canadian and Kingfisher Counties. The area was prone to flooding, and in March of 1962, Logan County Soil and Water Conservation District No. 9 (LCSWCD), Cottonwood Creek Water and Soil Conservancy District No. 11 (CCWSCD), and the United States Department of Agriculture (USDA), prepared a plan to alleviate dangers associated with uncontrolled water flow. One of the structures included in the work plan was Floodwater Retarding Structure No. 54 (FWRS 54). On September 24, 1962, D.C. and Odessa Fitzwater granted an easement (Fitzwater Easement) to CCWSCD. Years later, changes in safety criteria and the development of houses downstream compelled the USDA and Oklahoma Water Resources Board (OWRB) to recast FWRS 54 as a high hazard class (c) dam.3 This new classification was based on changes in safety criteria, the development of 26 houses downstream, and the potential for loss of life following a structural failure. In March of 2006, the USDA issued a written proposal calling for the rehabilitation of FWRS 54. The USDA watershed plan suggested multiple repairs and improvements to FWRS 54. Logan County Conservation District (LCCD) filed a declaratory action seeking permission to perform rehabilitation work on FWRS 54. The petition alleged the Fitzwater and Impoundment Easements vested LCCD with the right to complete the rehabilitation project. Property owners Phyllis Crowder and John White, Jr. answered and claimed that the proposed work did not fall within the scope of the original easements. Accordingly, Crowder and White maintained the rehabilitation project would lead to an improper taking of their land. Pleasant Oaks Lake Association (POLA) and individual homeowners also answered, alleging the project would constitute a taking requiring payment of compensation. LCCD filed a motion seeking summary judgment. The motion asserted LCCD was authorized to perform work on FWRS 54 based upon the unambiguous language contained in deeds establishing the Fitzwater and Impoundment Easements. The homeowners and the homeowners association appealed a judgment finding Conservation District was authorized to enter their respective properties to perform the rehabilitation work. The Supreme Court affirmed, finding that the plain language in the deeds creating the easements included a right to ensure the dam's structural integrity through a rehabilitation project. View "Logan County Conservation Dist. v. Pleasant Oaks Homeowners Ass'n" on Justia Law

Department of Environmental Protection (DEP) regulations require that those deemed to be liable after a spill of hazardous materials within a specified radius of a public water supply undertake cleanup and monitoring to ensure the spill does not pose a danger to that water supply, 310 Code Mass. Regs. 40.0801, 40.0810, 40.0993(3)(a), 40.1030(2)(e). A 2007 modification exempts "oil" from some requirements when specific conditions are met, 310 Code Mass. Regs. 40.0924(2)(b)(3)(a). Peterborough owns a now-vacant Athol property, within a protection area, where it operated a gasoline station for more than 10 years. In 1994, a release of leaded gasoline from a subterranean gasoline storage tank was detected in soil on the site. DEP required Peterborough to undertake supervised cleanup and monitoring activities. In 2008, after the oil exemption was established, Peterborough submitted a revised plan, stating that further remediation was not required because the entirety of the spill fell within the exemption's definition of "oil." DEP responded that the meaning of "oil" in the exemption does not include gasoline additives such as lead, but refers only to petroleum hydrocarbons naturally occurring in oils, so that a spill of leaded gasoline could not be completely excluded from further remediation. The trial court, on summary judgment, and the Massachusetts Supreme Judicial Court, upheld the DEP interpretation of the regulation as reasonable. View "Peterborough Oil Co., LLC v. Dep't of Envtl. Prot." on Justia Law

The Service listed three antelope species – the scimitar-horned oryx, addax, and dama gazelle – as endangered. On the same day that the Service designated the antelope species as endangered, it issued a blanket exemption for qualifying domestic entities and individuals that breed the antelope species in captivity. The district court determined that the Captive-Bred Exemption violated Section 10(c) of the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq. President Obama then signed into law the Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, div. G, tit. I, 127, 128 Stat. 5, 315-16 (Section 127), which reinstated the Captive-Bred Exemption. Friends of Animals filed suit alleging that the Reinstatement Rule violates the Act and the Administrative Procedure Act (APA), 5 U.S.C. 706, and that Section 127 violates the United States Constitution. The district court granted appellees' motion for summary judgment and denied Friends of Animals' motion for summary judgment. The court concluded that, under FEC v. Akins, Friends of Animals has informational standing to pursue its claims, so there is no jurisdictional impediment to this lawsuit. The court rejected Friends of Animals' claims on the merits, concluding that Congress acted within its constitutional bounds when it passed Section 127. Therefore, the court concluded that there can be no doubt that the Service was fully authorized to reinstate the Captive-Bred Exemption. View "Friends of Animals v. Jewell" on Justia Law

Petitioners challenge the NRC's rule and generic environmental impact statement (GEIS) concerning the continued, and possibly indefinite, storage of spent fuel from nuclear power plants in the United States. Petitioners contend that the NRC failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. The court concluded that the NRC appropriately characterized its rule and considered alternatives and mitigation measures; the GEIS sufficiently analyzes the impacts of continued storage of spent nuclear fuel where the GEIS considered essentially common risks to reactor sites and the NRC evaluated the probability of failure to site a repository, the GEIS assessed the cumulative impacts of the continued storage of spent nuclear fuel, the NRC did not ignore short-term high-volume leaks, and the NRC's waiver process ensures consideration of site-specific impacts; and the NRC's assumptions are not arbitrary or capricious. Accordingly, the court denied the petitions for review. View "State of New York v. NRC" on Justia Law

Sawyer, with co-defendants, formed A&E to recover salvageable materials (copper, steel, aluminum) from the 300-acre Hamblen County site of the former Liberty Fibers rayon plant, which contained buildings, a water treatment facility, and extensive above-ground piping. The defendants knew that many of the buildings contained regulated asbestos-containing material (RACM), such as pipe-wrap, insulation, roofing, and floor tiles, much of which was marked. Demolition did not comply with National Emission Standards for Hazardous Air Pollutants (NESHAP) governing the handling and disposal of asbestos. Workers were not provided with proper respirators or protective suits; some were asked to remove or handle friable asbestos without adequately wetting it. In a 2008 consent agreement, A&E agreed to correct the violations and comply with NESHAP during future removal and demolition. In 2009, the EPA terminated the agreement and issued an immediate compliance order. Federal agents searched the site, seized documents, and took samples of RACM. EPA, acting under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), cleaned up the site, at a cost of $16,265,418. In 2011, Sawyer and his co-defendants were charged. Sawyer pled guilty to conspiring to violate the Clean Air Act, 18 U.S.C. 371. His PSR calculated a guideline sentencing range of 87-108 months. The statutory maximum under 18 U.S.C. 371 is 60 months, so his effective range was 60 months. The Sixth Circuit affirmed Sawyer’s 60-month sentence and an order holding the co-defendants jointly and severally liable for $10,388,576.71 in restitution to the EPA. View "United States v. Sawyer" on Justia Law

On July 4, 2004, the Upper Eagle Regional Water Authority (the “Authority”) diverted 0.716 cubic feet per second (“cfs”) of water at the Edwards Drinking Water Facility on the Eagle River and delivered that water to the Cordillera area for beneficial use. On that date, there was a “free river” (meaning that there was no call on the Colorado or Eagle Rivers). Of the water diverted and delivered to Cordillera, the Authority allocated 0.47 cfs to its Eagle River Diversion Point No. 2 conditional water right (the “Junior Eagle River Right”) and filed an application to make this amount absolute. The State and Division Engineers opposed the application, asserting that the Authority could not make its Junior Eagle River Right absolute when it owned another, more senior conditional water right, the SCR Diversion Point No. 1 water right (the “Senior Lake Creek Right”), decreed for the same claimed beneficial uses at the same location and for diversion at the same point. The water court agreed with the Engineers, and held that the July 4, 2004, diversion had to be allocated first to the Senior Lake Creek Right. The Authority appealed, and the Colorado Supreme Court reversed, holding that where there was no evidence of waste, hoarding, or other mischief, and no injury to the rights of other water users, the owner of a portfolio of water rights was entitled to select which of its different, in-priority conditional water rights it wished to first divert and make absolute. "[T]he portfolio owner must live with its choice. Since it has chosen to make a portion of the Junior Eagle River Right absolute, the Authority may not now divert and use the Senior Lake Creek Right unless it demonstrates that it needs that water right in addition to the Junior Eagle River Right." View "Upper Eagle Reg'l Water Auth. v. Wolfe" on Justia Law

Peat mining companies sought a Clean Water Act, 33 U.S.C. 1311(a), 1362, permit from the Army Corps of Engineers, to discharge material onto wetlands on property that they own and hope to mine. The Corps issued a jurisdictional designation (JD) stating that the property contained “waters of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located 120 miles away. The district court dismissed their appeal for want of jurisdiction, holding that the JD was not a “final agency action for which there is no other adequate remedy,” 5 U.S.C. 704. The Eighth Circuit reversed. The Supreme Court affirmed. The Corps’ approved JD is a final agency action judicially reviewable under the Administrative Procedures Act. An approved JD clearly “mark[s] the consummation” of the Corps’ decision-making on whether particular property contains “waters of the United States.” It is issued after extensive fact-finding regarding the property’s physical and hydrological characteristics and typically remains valid for five years. The Corps describes approved JDs as “final agency action.” The definitive nature of approved JDs gives rise to “direct and appreciable legal consequences.” A “negative” creates a five-year safe harbor from governmental civil enforcement proceedings and limits the potential liability for violating the Act. An “affirmative” JD, like issued here, deprives property owners of the five-year safe harbor. Parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of “serious criminal and civil penalties.” The permitting process is costly and lengthy, and irrelevant to the finality of the approved JD and its suitability for judicial review. View "Army Corps of Eng'rs v. Hawkes Co." on Justia Law

Plaintiffs filed suit against Exxon, alleging that Exxon violated the federal permits governing operations at the Baytown industrial complex thousands of times over a nearly eight year period. The district court issued findings of fact and conclusions of law denying most of plaintiffs’ claims and declining to order any relief. Exxon's Baytown industrial complex is governed by the five federal operating permits issued under Title V of the the Clean Air Act (CCA), 42 U.S.C. 7661a-7661d. The court concluded that the district court erred in its analysis of Exxon’s liability under Counts I through IV and abused its discretion in assessing three of the CAA’s mandatory penalty factors. Accordingly, the court vacated the district court's judgment and remanded for assessment of penalties based on the violations that are properly considered “actionable” in light of this opinion. View "Environment Texas Citizen Lobby v. ExxonMobil" on Justia Law