Justia Environmental Law Opinion Summaries

Appellants Energize Vermont, Inc. and several individuals challenged the Vermont Public Service Board (PSB)’s affirmance of a permit issued by the Agency of Natural Resources (ANR), approving an operational-phase stormwater management plan for appellee Green Mountain Power (GMP), with respect to the Kingdom Community Wind Project (Wind Project) on Lowell Mountain. Appellants raised a variety of challenges to the operational-phase permit, as well as other permits. On the appeal of the PSB order, the only issue this case presented to the Supreme Court was whether ANR complied with certain requirements of its own Vermont Stormwater Management Manual in granting the operational-phase permit. "Given the deferential standard of review, this straightforward plain meaning analysis needs little elaboration. Appellants have not met their burden." The Supreme Court found no clear and convincing error in ANR’s interpretation of the VSMM to allow an operational stormwater permit for the Wind Project’s level spreaders.View "In re ANR Permits in Lowell Mountain Wind Project" on Justia Law

The South Florida Water Management District alleged that RLI, Live Oak, LLC, a land developer and owner of property that purportedly contained wetlands, participated in unauthorized dredging, construction activity, and filling of wetlands without first obtaining the District’s approval. The circuit court entered judgment in favor of the District and awarded the District $81,900 in civil penalties. The district court reversed, holding that the trial court erred in basing its findings on a preponderance of the evidence standard and not the clear and convincing evidence standard. On motion for rehearing or certification, the district court certified a question for a determination by the Supreme Court of the proper burden of proof. The Supreme Court reversed, holding that where the Legislature statutorily authorizes a state governmental agency to recover a “civil penalty” in a “court of competent jurisdiction” but does not specify the agency’s burden of proof, the agency is not required to prove the alleged violation by clear and convincing evidence but, rather, by a preponderance of the evidence.View "S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC" on Justia Law

The Court of Appeals rejected petitioners' contention that Oregon Department of Fish and Wildlife's (ODFW) approval of "channel-spanning fishways" associated with two small, privately maintained dams downstream from their property violated state law, including ODFW's own rules, pertaining to fish passage for native migratory fish. Petitioners argued that the approvals were inconsistent with administrative rules and statutes that, in their view, required that fish passage be provided whenever water is flowing past the dams, whether over the tops of the dams or through outlet pipes required by the state Water Resources Department (WRD). The Court of Appeals held that ODFW had plausibly construed its own rules as requiring passage only when water is flowing over the dams, and that the rules, as interpreted, were not inconsistent with the controlling statutes. Petitioners sought review and the Supreme Court granted their petition. The Supreme Court concluded that ODFW's interpretation of the rules was implausible. The case was remanded to the agency for further action under a correct interpretation. View "Noble v. Dept. of Fish & Wildlife" on Justia Law

The Commonwealth of Pennsylvania, Pennsylvania Fish and Boat Commission (PFBC) filed a complaint against Consol Energy, Inc. and Consolidation Coal Company (collectively, Consol) alleging West Virginia common law tort claims and seeking damages for massive losses of fish and aquatic life allegedly caused by Consol’s discharges of waste water into a stream that flows between West Virginia and Pennsylvania. The circuit court dismissed the complaint, concluding that PFBC was only authorized to bring civil suits for damages as a result of violations of Pennsylvania law, and PFBC had no authority to bring a cause of action under West Virginia common law. The Supreme Court reversed, holding that PFBC had sufficient interest in the fish and aquatic life under its control to give it standing to file suit in West Virginia and bring West Virginia common law tort claims against Consol to seek recovery of damages as a result of the fish kill.View "Commonwealth of Pa. v. Consol Energy, Inc." on Justia Law

This case involved a dispute over the water rights to a well (“disputed well”). In 1982, Carl Kambich filed a statement of claim for existing water rights. In 1990, Kambich filed a notice of transfer of water right to Randall and Ila Mae Brooks. The current Water Court case involved the claim originally filed by Kambich and amended by the Brooks. Ernest Nelson objected to the claim, arguing that he was the owner of the disputed well. After a hearing, the Water Master found that the claim belonged to the Brooks and that, although Nelson had presented some valid questions regarding the history of the well, he had failed to overcome the prima facie proof in the statement of claim. The Water Court dismissed Nelson’s objections to the water rights claim by the Brooks. The Supreme Court affirmed the Water Court’s order, holding that the Brooks’ well claim was valid. View "Nelson v. Brooks" on Justia Law

Dozens of suits were filed against Irving Oil Limited (IOL) alleging environmental contamination by methyl tertiary butyl ether (MTBE) occurring from 1979 to the present. At the time of this opinion, all of the MTBE suits against IOL had been settled. In 2009, IOL filed a complaint asking the superior court to declare that ACE INA Insurance (ACE) had a duty to defend and indemnify in the MTBE suits. The superior court granted IOL’s motion for summary judgment in part and denied it in part, concluding that it could not declare that IOL was entitled a judgment on the duty-to-defend count as a matter of law. IOL appealed. The Supreme Court dismissed IOL’s appeal and ACE’s cross-appeal, holding that although a decision that an insurer does not have a duty to defend its insured is ordinarily immediately appealable under the death knell exception to the final judgment rule, the exception did not apply in this case because there were no MTBE cases pending against IOL.View "Irving Oil Ltd. et al. v. ACE INA Ins." on Justia Law

In 2010, the State retained Covington & Burling, LLP (“Covington”) to represent it in a natural resource damages case against 3M Company (“3M”) involving the manufacture and disposal of perfluorochemicals, which are a subset of all fluorochemicals. In 2012, 3M moved to disqualify Covington as counsel for the State because Covington had previously represented 3M in legal and regulatory matters related to 3M’s fluorochemicals business from 1992 to 2006. The district court granted 3M’s disqualification motion. Both the State and Covington appealed. The court of appeals dismissed Covington’s appeal for lack of standing and affirmed the disqualification of Covington. The Supreme Court affirmed in part, reversed in part, and remanded, holding (1) an attorney has standing to appeal when a district court finds that the attorney violated the rules of professional conduct and disqualifies the attorney from the representation, and therefore, Covington had standing to appeal the disqualification order; (2) the district failed to use the proper legal standard in disqualifying Covington under Minn. R. Prof. Conduct 1.9(a); and (3) remand was required to permit the district court to make the necessary factual findings and determine whether 3M waived the right to seek disqualification of Covington.View "State v. 3M Co." on Justia Law

Lawrence Elliott owned and operated the Black Creek Water and Wastewater systems in Forrest County from the 1990s until 2005. The systems are a few miles upstream of an area of Black Creek that is designated as a National Wild and Scenic River. The systems suffered numerous violations of environmental regulations, including multiple illegal sewage discharges. Bell Utilities purchased the systems from Elliott in 2005 and vastly improved the situation, expending its own money in an attempt to bring the system into compliance. Bell entered into an Agreed Order with the Mississippi Department of Environmental Quality in which compliance issues were addressed, and in which Bell agreed to put up a financial assurance that would be returned to Bell after two years of adequate compliance. In 2010, Bell sought to sell the Black Creek systems to Utility One, LLC, and to transfer the attendant permits to it. MDEQ refused to transfer Bell’s wastewater permit to Utility One unless Utility One put up a similar financial assurance. Bell appealed the denial of the permit transfer to the chancery court. The chancery court reversed the Permit Board, finding that its actions were arbitrary and capricious because it has not promulgated regulations on how to conduct a regulatory hearing and on when and whether to demand financial assurances prior to permit transfer. It ordered MDEQ and the Permit Board to promulgate such regulations. MDEQ appealed. Because the Supreme Court found that the Permit Board’s demand of the financial assurance from Utility One to transfer the permit was beyond its power, the Court affirmed the portion of the chancery court judgment that reversed the Permit Board. However, because the agencies were not required under the APA to promulgate rules and regulations for formal Permit Board hearings, the Court vacated the portion of the trial court’s judgment that required them to do so.View "Mississippi Comm'n on Environmental Quality v. Bell Utilities of Mississippi, LLC" on Justia Law

Attorney General Wayne Stenehjem, on behalf of the State, appealed, and the National Audubon Society cross-appealed from a district court judgment dismissing the Attorney General's corporate farming enforcement action against Audubon and upholding the constitutionality of North Dakota's Corporate Farming Law, N.D.C.C. ch. 10-06.1. Upon review of the dispute, the Supreme Court affirmed the judgment, concluding the equitable defense of laches barred the State's divestiture claim. The Court declined to address the constitutionality of the Corporate Farming Law because the affirmative defense of laches provided an alternative basis upon which the case may be disposed.View "Stenehjem, ex rel. v. National Audubon Society, Inc." on Justia Law

The Department of Environmental Protection (Department), acting through its office of Long Island Sound Programs (Office), ordered Plaintiffs, Gail and Thomas Lane, to remove a boardwalk and dock from their property because they had been installed without the statutorily required permits. The Office then denied Plaintiffs’ application for a certificate of permission to retain and maintain the structures and to install a new boardwalk pursuant to Conn. Gen. Stat. 22a-363b(a)(2). The Department upheld the Office’s rulings. The trial court dismissed Plaintiffs’ administrative appeal. The Appellate Court affirmed. The Supreme Court affirmed, holding that the Appellate Court properly interpreted section 22a-363b(a) in concluding that the trial court properly dismissed Plaintiffs’ administrative appeal. View "Lane v. Comm’r of Envtl. Prot." on Justia Law