Justia Environmental Law Opinion Summaries

The Commissioner of the Department of Environmental Protection issued a compliance order requiring Mallinckrodt US LLC and United States Surgical Corporation (collectively, Mallinckrodt) to excavate material containing mercury and other contaminants from five landfills located on a site adjacent to the Penobscot River and to transfer the material to off-site landfills. After a hearing, the Board of Environmental Protection modified and affirmed the order by requiring that Mallinckrodt excavate only two of the landfills and that it secure and monitor the others. Mallinckrodt appealed. The Supreme Court affirmed, holding (1) the Commissioner was statutorily authorized to issue the compliance order; (2) the Board did not err in conducting the proceedings in accordance with statutorily provided rules rather than promulgating its own; (3) the Board did not err by precluding Mallinckrodt from cross-examining two consultants who assisted the Board in evaluating technical evidence because the consultants did not offer testimony; and (4) the Board did not abuse its discretion in excluding evidence relating to the Commissioner’s possible political bias.View "Mallinckrodt US LLC v. Dep’t of Envtl. Prot." on Justia Law

The Superfund Site encompasses the Lower Fox River and Green Bay, into which paper mills discharged PCBs until the 1970s, and is the subject of remedial efforts under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9606. The U.S. Environmental Protection Agency (EPA) and the Wisconsin Department of Natural Resources (WDNR) divided the Site into five “operable units” (OUs). In 2002, EPA and WDNR issued a record of decision (ROD), calling for dredging in OU1, but for monitored natural recovery in OU2, excepting limited dredging as part of the OU3 remedy. In 2003, EPA and WDNR issued another ROD, including dredging in OU3 and OU4. The OU5 remedy was limited to monitored natural recovery, except some dredging near the River's mouth. Potentially responsible parties (PRPs) agreed to perform the work in OU1. NCR and another PRP agreed to perform remedial design work for OU2–OU5. In 2007, the agencies amended the ROD for OU2–OU5, keeping dredging as the default approach but allowing for capping and sand covering. EPA ordered the PRPs to conduct the cleanup required by the amendment. NCR led the remedial efforts in OU2 and OU3 and conducted significant action in OU4. In 2008 NCR sought contribution from the other PRPs and declined further compliance with EPA’s 2007 order. The district court ordered NCR to complete work scheduled for 2012. The Seventh Circuit affirmed. The district court then upheld the agencies’ remedy selection and held that various OU1 PRPs were liable for downstream cleanup costs; the court entered a permanent injunction requiring the nonsettling PRPs to comply with EPA’s 2007 order. The Seventh Circuit reversed in part; the district court erred in its consideration of NCR’s divisibility defense and in its decision to enter a permanent injunction. View "United States v. P.H. Glatfelter Co." on Justia Law

The Superfund Site encompasses the Lower Fox River and Green Bay, into which paper mills discharged PCBs until the 1970s, and is the subject of remedial efforts under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9606. The U.S. Environmental Protection Agency and the Wisconsin Department of Natural Resources divided the Site into five “operable units” (OUs) and issued records of decision (RODs), calling for dredging in OU1, for monitored natural recovery in OU2; dredging in OU3 and OU4; and monitored natural recovery in OU5. Several potentially responsible parties (PRPs) agreed to perform the work in OU1. NCR and another PRP agreed to perform remedial design work for OU2–OU5. The agencies amended the ROD for OU2–OU5, keeping dredging as the default approach but allowing for capping and sand covering. EPA ordered the PRPs to conduct cleanup required by the amendment. NCR led the remedial efforts in OU2 and OU3 and conducted significant action in OU4. NCR sought contribution from the other PRPs and declined further compliance with EPA’s 2007 order. The district court ordered NCR to complete work scheduled for 2012. The Seventh Circuit affirmed. The district court then held that NCR was not entitled to contribution from paper mills that recycled its scraps and that those mills had meritorious counterclaims for recovery from NCR. The Seventh Circuit vacated the decision to hold NCR responsible for all of the response costs at OU2- 5 in contribution, but affirmed that NCR may proceed only under CERCLA section 113(f); that NCR is not liable as an arranger; that another PRP’s insurance settlement may not be offset against NCR’s contribution share; that NCR can be required to contribute for natural resource damages; and that state-law counterclaims are preempted. View "NCR Corp. v. WTM I Co." on Justia Law

These consolidated appeals concern challenges to two logging projects in Montana's Flathead National Project: (1) the Weber case challenged the Forest Service's decision to authorize the Spotted Bear River Project, and (2) the Christiansen case challenged the Soldier Addition II Project. Wild Swan appealed the district court's denial of preliminary injunctions in both cases. The court affirmed the denial of the preliminary injunction because Wild Swan has not demonstrated a likelihood of success on the merits of its National Environmental Protection Act (NEPA), 42 U.S.C. 4321 et seq., claim where Wild Swan failed to demonstrate that the Forest Service acted arbitrarily in delineating the geographic boundaries of its cumulative effects analysis with respect to the lynx and grizzly bear; the Forest Service sufficiently addressed the effects of each project on the fisheries, but even if the Forest Service should have considered the cumulative impact of both worst-case sediment scenarios on the main channel of the South Fork, there is no immediate risk of irreparable injury justifying preliminary injunction; the district court did not abuse its discretion in determining that Wild Swan has not demonstrated a likelihood of success on the merits of its National Forest Management Act (NFMA), 16 U.S.C. 1604, claims, nor has plaintiff raised serious questions on the merits of this claim; and the district court did not abuse its discretion by determining Wild Swan has not demonstrated a likelihood of success or serious questions on the merits of its Endangered Species Act (ESA), 16 U.S.C. 1531, claims. Accordingly, the court affirmed the judgment of the district court. View "Friends of the Wild Swan v. Weber" on Justia Law

Mines Management, Inc., Newhi, Inc., and Montanore Minerals Corp. (collectively, MMC) sued Defendants, challenging the validity of Defendants’ unpatented mining claims and asserting several tort claims. The district court ruled on several motions and granted injunctive relief for one defendant. MMC appealed. The Supreme Court remanded with instructions to vacate the injunction, concluding that the lower court had not made sufficient findings to support the granting of the injunction and permit appellate review. MMC then filed a motion for substitution of judge pursuant to Mont. Code Ann. 3-1-804(12). The district court ruled that substitution was unavailable at this stage in the proceeding. The Supreme Court affirmed, holding that the district court correctly denied the motion because, upon remand, section 3-1-804(12) did not provide MMC an opportunity to request a substitution of judge. View "Mines Mgmt., Inc. v. Fus" on Justia Law

In 2010, the Department of Environmental Conservation (DEC) adopted amendments to regulations pertaining to the protection of endangered and threatened species. The amendments established a formal process through which individuals could obtain a permit to allow for the incidental taking of a threatened or endangered species. Before the agency implemented the regulations at issue, the Town of Riverhead and Twon of Riverhead Community Development Agency (collectively, Riverhead) challenged the amendments. Supreme Court dismissed the proceeding, finding that Petitioners did not have standing. The Appellate Division affirmed, concluding that Petitioners lacked standing based on their failure to allege an injury in fact and that Petitioners’ substantive challenges were not yet ripe. The Court of Appeals held that Petitioners could proceed with three of their procedural claims, as they alleged a sufficient injury regarding these claims, but Petitioners lacked standing with respect to the substantive causes of action, as those claims were not yet ripe. View "In re Ass’n for a Better Long Island" on Justia Law

Applicant Ecos Energy, LLC appealed the Public Service Board's decision that its proposed solar power project did not qualify for a standard-offer power purchase contract under Vermont's Sustainably Priced Energy Enterprise Development (SPEED) program because it exceeded the statutory limit on generation capacity. In 2009, the Board issued an order in which it prescribed various procedures and requirements for the standard-offer program. The standard-offer program was administered by the SPEED facilitator, VEPP, Inc. One of the participants in the implementation process, Central Vermont Public Service, commented that separate projects would need to enter into separate interconnection agreements with the utility, enter into separate standard contracts, and obtain separate certificates of public good. Another participant, Renewable Energy Vermont, commented that the statute was clear that "separate plants that share common infrastructure and interconnection should be considered as one plant." In April 2013, VEPP issued a request for proposals (RFP) for projects. Applicant proposed three 2.0 MW solar projects (the Bennington Solar project, the Apple Hill Solar project, and the Sudbury Solar project). Applicant's three projects were the lowest-priced projects. In submitting the RFP results to the Board, VEPP noted that the Bennington project and the Apple Hill project would be located on the same parcel of property and the generation components of the project were "physically contiguous." It requested that the Board make a determination as to whether or not the two projects constituted a single plant. The Board accepted the Bennington project and disqualified the Apple Hill project, which had a higher price. The Board authorized VEPP to enter into standard-offer contracts with applicant for the Bennington and Sudbury projects. Applicant subsequently petitioned the Board to reconsider and modify its order. When it refused, applicant appealed the decision. Upon review of the matter, the Supreme Court found that the Board's conclusion that the Bennington and Apple Hill projects constituted a single plant was contrary to the plain language of the applicable statute: the Bennington and Apple Hill projects would qualify as "independent technical facilities." As such the Court reversed the Board's decision and remanded the case for further proceedings.View "In re Programmatic Changes to the Standard-Offer Program and Investigation into the Establishment of Standard-Offer Prices under the Sustainably Priced Energy Enterprise Development" on Justia Law

This case arose from California's decision to extend its control to cleanup of radioactive pollutants (Senate Bill 990). Boeing filed suit challenging the validity of SB 990, which controlled cleanup of the Santa Susanna Laboratory grounds. The district court agreed with Boeing that the federal government had preempted the field of regulation of nuclear safety, and alternatively that clean up of radioactive materials at the Santa Susanna site is a federal activity. California appealed. The court concluded that Boeing had standing where it could clearly demonstrate an injury in fact; SB 990 violates intergovernmental immunity and is invalid under the Supremacy Clause because the activities of the federal government are free from regulation by any state and state laws are invalid if they regulate the United States directly or discriminate against the federal government or those with whom it deals; the court agreed with the district court that the terms of SB 990 are unseverable; and the court declined to construe SB 990 as limited to non-radioactive cleanup. Accordingly, the court affirmed the judgment of the district court. View "The Boeing Co. v. Raphael" on Justia Law

Appellants owned the mineral rights and the State owned the surface rights to a certain tract of land. When the property was transferred to the State, the seller reserved all mineral rights and “reasonable surface right privileges.” Appellants filed a complaint for declaratory judgment seeking a determination that they were entitled to surface-mine a reasonable portion of the property. The court of common pleas granted summary judgment for the State, and the court of appeals affirmed. The Supreme Court reversed, holding that the contract entitled Appellants to surface-mine the property, subject to the reasonableness standard of the contract. Remanded. View "Snyder v. Ohio Dep’t of Natural Res." on Justia Law

CDA entered into a settlement with the government under provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-75, for payment of the costs of hazardous waste clean-up efforts at a mine site in Idaho. The district court approved the settlement over the objections of intervenor FRC. The court rejected FRC's contention that the district court was required to analyze the comparative fault of the parties in order to determine whether its consent decree was substantively fair where, because the decree was based on CDA's ability to pay, it is unclear what effect, if any, a comparative fault analysis would have had on the district court's determination. The court also rejected FRC's contention that the district court erred by failing to consider the substantial evidence submitted by FRC indicating the existence of liability insurance where the court saw no reason to reject the district court's determination that the record shows that the Government appropriately considered the financial health of the CDA and concluded that the proposed settlement represented the maximum amount of money it could contribute to the cleanup costs. The district court's conclusion was well supported. Accordingly, the court affirmed the judgment of the district court. View "United States v. FRC" on Justia Law