Justia Environmental Law Opinion Summaries

Hawkes wishes to mine peat from wetland property owned by affiliated companies in northwestern Minnesota. The U.S. Army Corps of Engineers issued an Approved Jurisdictional Determination (JD) that the property constitutes “waters of the United States” within the meaning of the Clean Water Act, requiring a permit to discharge dredged or fill materials into the “navigable waters,” 33 U.S.C. 1344(a), 1362(7). The district court dismissed a challenge, holding that an approved JD, though the consummation of the Corps’ jurisdictional decision-making process, was not a “final agency action” within the meaning of the Administrative Procedure Act, 5 U.S.C. 704. While the appeal was pending, a panel of the Fifth Circuit reached the same conclusion. The Eighth Circuit reversed, finding that both courts misapplied the Supreme Court’s 2012 decision, Sackett v. EPA. A “properly pragmatic analysis of ripeness and final agency action principles compels the conclusion that an Approved JD is subject to immediate judicial review. The Corps’s assertion that the Revised JD is merely advisory and has no more effect than an environmental consultant’s opinion ignores reality.” View "Hawkes Co., Inc. v. U.S. Army Corps of Eng'rs" on Justia Law

A landowner sued its neighbor, the operator of an adjacent wastewater disposal facility, alleging that wastewater had migrated into the deep subsurface of its land, possibility contaminating the groundwater beneath it. The jury returned a verdict in favor of the wastewater disposal facility. After a series of appeals, the court of appeals reversed the jury’s verdict. The Supreme Court reversed the judgment of the court of appeals and reinstated the trial court’s judgment that the wastewater disposal facility take nothing, holding (1) the jury instruction properly included lack of consent as an element of a trespass cause of action that a plaintiff must prove; (2) the trial court properly denied the landowner’s motion for directed verdict on the issue of consent; and (3) there is no need to address the remaining question of whether deep subsurface wastewater migration is actionable as a common law trespass in Texas. View "Envtl. Processing Sys., LC v. FPL Farming Ltd." on Justia Law

Congress passed the Clean Water Act "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." The Act bans "the discharge of any pollutant by any person," unless affirmatively allowed by law. This case began when a group of environmental organizations petitioned the EPA to "use its powers [pursuant to section 1313(c)(4)(B)] to control nitrogen and phosphorous pollution" within the Mississippi River Basin and the Northern Gulf of Mexico. The EPA declined to do so. While the agency agreed that nitrogen and phosphorous pollution "is a significant water quality problem," it did "not believe that the comprehensive use of federal rulemaking authority is the most effective or practical means of addressing these concerns at this time." The petitioners filed suit, arguing the EPA had violated the Administrative Procedure Act and the CWA by declining to make a necessity determination. The EPA moved to dismiss the case on subject matter jurisdiction grounds, arguing that the decision whether to make a necessity determination was a discretionary act that the court lacked authority to review. The parties also cross-moved for summary judgment on the merits. Pursuant to the Supreme Court's decision in "Massachusetts v. EPA" the district court held that the "EPA could not simply decline to make a necessity determination in response to . . . [the] petition for rulemaking." It remanded the case to the agency with orders to conduct a necessity determination. In doing so, the district court declined to issue specific guidance on "the types of factors that EPA can or cannot consider when actually making the necessity determination." This appeal followed. The Fifth Circuit surmised this case posed two questions: (1) whether it had subject matter jurisdiction to review the EPA's decision not to make a necessity determination; and (2) was the EPA required to make such a determination. The Court held that it had jurisdiction to hear the case, and that the EPA was not required to make such a determination. View "Gulf Restoration Network v. McCarthy" on Justia Law

Pursuant to its statutory authority, the Colorado Water Conservation Board (CWCB), after a notice and comment period and a hearing, voted to appropriate an instream flow right (ISF) on the San Miguel River, and to file a water application for water rights with the water court. Farmers Water Development Company opposed the proposed San Miguel ISF during the notice and comment period, but did not attend the hearing. Farmers also opposed the application at the water court. On cross-motions for a determination of a question of law, the water court was asked to determine whether the CWCB's decision to appropriate an ISF was a quasi-legislative or quasi-judicial decision. Farmers argued that the decision was quasi-judicial, and that the procedures CWCB followed did not meet the dictates of procedural due process. The water court disagreed, concluding the CWCB was acting in a quasi-legislative capacity when it decided to appropriate the San Miguel ISF because, among other things, it was not adjudicating individual rights. The Supreme Court agreed: the CWCB's ISF appropriation was quasi-legislative because it was a policy decision "to preserve the natural environment" on behalf of the people of Colorado, as opposed to an adjudication of the rights of any specific party. View "Colo. Water Conservation Bd. v. Farmers Water Development Co." on Justia Law

The California Air Resources Board (CARB) is charged with developing a state implementation plan in compliance with federal air quality standards. CARB is solely responsible for vehicular sources of air pollution. Local and regional districts have responsibility for controlling air pollution from all other sources. Health and Safety Code section 42300(a) provides: "Every district board may establish by regulation, a permit system that requires . . . that before any person builds, erects, alters, replaces, operates, or uses any article, machine, equipment, or other contrivance which may cause the issuance of air contaminants, the person obtain a permit." Friends of Oceano Dunes claimed that the San Luis Obispo County Air Pollution Control District exceeded its authority in adopting rule 1001 of Regulation X, Fugitive Dust Emission Standards Limitation and Prohibitions, which requires that the California Department of Parks and Recreation obtain an air emissions permit to operate the 3,600-acre Oceano Dunes States Vehicular Recreation Area. The trial court found that section 42300(a) authorized District to impose a permit system to regulate sand and dust emissions caused by off-road recreational vehicles. The court of appeal reversed, holding that, for purposes of section 42300(a), a state park is not a "contrivance." View "Friends of Oceano Dunes, Inc. v. San Luis Obispo Cnty. Air Pollution Control Dist." on Justia Law

AmeriPride Services Inc. brought this contribution action against Texas Eastern Overseas, Inc. (TEO) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) stemming from the contamination of the soil and groundwater in an industrial area of Sacramento, California. After a bench trial, the district court entered a final order and judgment against TEO. A panel of the Ninth Circuit vacated the district court’s judgment and remanded for further proceedings, holding (1) in allocating liability to a nonsettling defendant in a CERCLA contribution action, the district court is not required to apply either of the two leading methods for allocating liability to a nonsettling defendant after other responsible parties have entered into a settlement agreement to resolve their responsibility for an injury but, rather, has discretion to determine the most equitable method of accounting for settlements between private parties; and (2) because the district court did not explain its methodology for complying with CERCLA 9613(f) and furthering the goals of CERCLA, the panel could not determine whether the district court abused its discretion in allocating response costs. View "Ameripride Servs., Inc. v. Tex. Eastern Overseas Inc." on Justia Law

Blaine Carian appeals a postjudgment order denying his motion for attorney fees pursuant to Code of Civil Procedure section 1021.5. In or about 1975, the Fish and Game Commission adopted a regulation that designated Magnesia Spring Ecological Reserve (Reserve) in Riverside County as an ecological reserve. In or about 1976, the Department apparently adopted a wildlife management plan for the Reserve, which provided that "[e]nforcement of laws pertaining to [the Reserve] should be the responsibility of the Department." In or about 2007, the Department apparently adopted a multi-species habitat conservation plan, which stated that "[u]se of trails on [the Department's] land is subject to [California Code of Regulations] Title 14." It also contemplated that the "Bump and Grind" portion (Trail) of the Mirage Trail would be decommissioned and removed by the Department in the future. In January 2012, Assembly Bill No. 284 was introduced to enact a statute allowing access to the Trail. That bill apparently expired, or "died," pursuant to the California Constitution for lack of timely passage. In March 2012, a new bill, Assembly Bill No. 880, was introduced that contained the same language as the prior bill to enact a statute allowing access to the Trail. Carian filed the underlying lawsuit against defendants the California Department of Fish and Wildlife and Kimberly Nichol (a department manager), alleging causes of action for a writ of mandate directing the Department to reopen the Trail, taxpayer relief, quiet title to public easement, and declaratory relief. Assembly Bill No. 880 was ultimately passed, enacting former Fish and Game Code section 1587, effective as of January 2013, and the Governor signed the Bill. At the October 15 hearing on Defendants' demurrer, Carian conceded the new statute made his lawsuit moot. The court sustained Defendants' demurrer without leave to amend. In January 2013, Carian filed a motion for attorney fees under section 1021.5. In seeking an award of $100,000 in attorney fees against Defendants, Carian argued that his lawsuit was necessary to enforce an important right affecting the public interest and conferred a significant benefit on the general public by causing the State to open the Trail. The trial court found Carian did not, as required by 1021.5, make a reasonable attempt to settle his dispute before filing suit against defendants. On appeal, Carian argued the trial court erred in denying his motion for attorney fees because he gave the Department notice before filing his action, any attempt to settle the dispute would have been futile, and he satisfied all of the other requirements for an award of attorney fees under section 1021.5. The Court of Appeal confirmed the trial court's finding that Carian did not make a reasonable attempt to settle the dispute prior to filing his action against defendants. Therefore, Carian did not meet the requirement for an award of section 1021.5 attorney fees. View "Carian v. Dept. Fish & Wildlife" on Justia Law

The “Swampbuster” provisions of the Food Security Act deny certain farm-program benefits to persons who convert a wetland for agricultural purposes, 16 U.S.C. 3821. Smith challenged the USDA’s determination that Smith had converted 2.24 acres of wetland and was, therefore totally ineligible for benefits. Smith claimed that the Department erred in failing to: analyze whether his purported conversion would have only a minimal effect on surrounding wetlands, a finding that would exempt him from ineligibility; consider factors that would reduce his penalties; and exempt Smith’s parcel because it was originally converted and farmed before the enactment. The district court denied relief. The Sixth Circuit reversed, noting that, while this case only involves 2.24 acres, it has ramifications for thousands of corn and soybean farmers. The USDA had signed a mediation agreement with Smith, permitting him to plant the parcel in the spring and cut down trees so long as Smith did not remove stumps; USDA never argued that Smith intentionally violated this agreement, but permanently deprived him of benefits, in disregard of its own regulations. That Smith’s stance on mitigation may have “colored” the agency’s relationship with him does not mean that USDA is entitled to ignore minimal-effect evidence and a penalty-reduction request. View "Maple Drive Farms Ltd. P'ship v. Vilsack" on Justia Law

McGrath Lake has about 12 acres of surface area. Its subwatershed consists of approximately 1,200 acres including agricultural fields, petroleum facilities, park land, public roads and a closed landfill. Runoff reaches the lake by Central Ditch; there is no natural outlet. The lake and its bed sediment are polluted with pesticides and PCBs. California implements the Clean Water Act (33 U.S.C. 1251) through the Porter-Cologne Water Quality Control Act (Wat. Code 13000), setting "total maximum daily load[s]" (TMDL) of pollutants for bodies of water. A Regional Board established TMDLs for pollutants coming from the Central Ditch and for pollutants in the lake bed sediment. The Basin Plan Amendment sets a goal of 14 years to achieve the TMDL for the lake bed sediment, but does not mandate any particular method of remediation. The trial court denied a challenge. The court of appeal affirmed. A TMDL is an informational document, not an implementation plan, so only first-tier analysis was necessary. Remediation measures are beyond the scope of the TMDL. Until a plan is formulated, full environmental analysis of any particular method of remediation is premature. View "Conway v. State Water Res. Control Bd." on Justia Law

The Alaska Board of Game has established two different systems of subsistence hunting for moose and caribou in Alaska’s Copper Basin region: (1) community hunts for groups following a hunting pattern similar to the one traditionally practiced by members of the Ahtna Tene Nene’ community; and (2) individual hunts. A private outdoors group, the Alaska Fish and Wildlife Conservation Fund, argued that this regulatory framework violated the equal access and equal protection clauses of the Alaska Constitution by establishing a preference for a certain user group. The Fund also argued that the regulations were not authorized by the governing statutes, that they conflicted with other regulations, and that notice of important regulatory changes was not properly given to the public. The Supreme Court concluded that the Board’s factual findings supported a constitutionally valid distinction between patterns of subsistence use, and because the Board’s regulations do not otherwise violate the law, the Court affirmed the superior court’s grant of summary judgment to the State, upholding the statute and the Board regulations against the Fund’s legal challenge. View "Alaska Fish & Wildlife Conservation Fund v. Alaska" on Justia Law