Justia Environmental Law Opinion Summaries

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The Supreme Court reversed the decision of the court of appeals concluding that the factual findings of the Minnesota Pollution Control Agency were "insufficient to facilitate judicial review" of a permitting decision, holding that the Agency is not required under the Clean Air Act, 42 U.S.C. 7401-7671q, and its applicable regulations to investigate allegations of "sham" permitting when a source first applies for a synthetic minor source permit.At issue was whether the Agency was required to investigate allegations of sham permitting when consider whether to approve the air-emissions permit of PolyMet Mining, Inc. for a proposed mine. Respondents challenged the Agency's decision to issue the synthetic minor source permit, asserting that the Agency failed to conduct an adequate investigation into whether PolyMet intended to operate within the limits of the permit or whether it was instead seeking a sham permit. The court of appeals concluded that the Agency's short response to the concerns of Respondents was not the "hard look" required under the Minnesota Administrative Procedure Act, Minn. Stat. 14.69. The Supreme Court reversed, holding that the applicable federal regulations and guidance contemplate retrospective enforcement after the applicant has obtained a synthetic minor source permit and do not mandate prospective investigation. View "In re Issuance of Air Emissions Permit No. 13700345-101 for PolyMet Mining, Inc." on Justia Law

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The Supreme Court reversed in part and affirmed in part the order of the Montana Water Court reversing the order of the Montana Department of Natural Resources and Conservation (DNRC) denying Daniel and Sandra DeBuff's amended application for a beneficial water use permit, holding that the application satisfied the statutory criteria for a preliminary determination and may move forward to face objections.Specifically, the Supreme Court held (1) DNRC did not improperly relied upon either a geologic map or a 1987 final order in making its determination; (2) the Water Court erred by holding that DNRC's determination that the source aquifer was not discontinuous was clearly erroneous; (3) the Water Court correctly determined that DNRC's failure to consider evapotranspiration evidence provided by DeBuff was arbitrary and capricious; and (4) DNRC's determination that the water was not legally available and would have an adverse effect on senior appropriators was arbitrary and capricious. View "Debuff v. Montana Department of Natural Resources & Conservation" on Justia Law

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The Supreme Court reversed the decision of the court of appeals affirming the circuit court's grant of summary judgment to the Department of Revenue and determining that Applegate-Bader Farm, LLC did not raise a claim that triggered judicial review, holding that Applegate met its threshold burden to show that there was an environmental injury.Applegate challenged the Department's decision not to prepare an Environmental Impact Statement (EIS) under the Wisconsin Environmental Police Act (WEPA) when it promulgated the administrative rule set out in Wis. Admin. Code Tax 18.05(1)(d). The court of appeals affirmed the circuit court's dismissal, holding that Applegate had not raised a bona fide claim because it alleged only indirect environmental effects. The Supreme Court reversed, holding (1) administrative agencies must consider indirect, along with direct, environmental effects of their proposed rules when deciding whether to prepare an EIS; and (2) the Department failed to comply with WEPA. View "Applegate-Bader Farm, LLC v. Wisconsin Department of Revenue" on Justia Law

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The Supreme Judicial Court held that should Littleton, Acton, or both towns choose to exercise their rights to take the waters of Nagog Pond and apply for a permit under the Water Management Act (WMA), Mass. Gen. Laws ch. 21G, a special act passed by the Legislature in 1884 - St. 1884, c. 201 (1884 act) - the WMA will not provide the towns with a priority right over Concord's registration.The 1884 act granted Concord the right to use Nagog Pond, located in Littleton and Acton, as a public water supply. The act, however, provided that Littleton, Acton, or both could take the pond waters and that their water needs "shall be first supplied." Because Concord had exercised its rights under the 1884 act but Littleton and Acton had not exercised their rights, at issue was whether those rights still existed after the passage of the WMA. The Supreme Court held (1) the WMA impliedly repealed the provision in the 1884 act that provided that the needs of the residents of Littleton and Acton "shall be first supplied"; but (2) the WMA did not impliedly repeal the provisions of the 1884 act that granted Concord the right to "take and hold" the Nagog Pond waters. View "Concord v. Water Department of Littleton" on Justia Law

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The Fourth Circuit granted MVP's petition for review challenging the Department's denial of MVP's Clean Water Act certification. MVP seeks to build a natural gas pipeline running through North Carolina and its rivers, streams, and wetlands.The court held that the Department's denial is consistent with the State’s regulations and the Clean Water Act. The court explained that it need not decide which version of the certification regulation to consider because, under the current version of the regulation, the Department's minimization reasoning is consistent with its water quality standards: namely, its riparian buffer rules. Furthermore, the Department properly denied certification, as it found that the temporal adjustment constituted a practical alternative that would better minimize harm to the State's waters. However, the court held that the Department did not adequately explain its decision in light of the administrative record. While the Department's decision adequately explained its concerns with the Mainline Project and the adverse effects of the Southgate Project, the court concluded that it failed to address the hearing officer's minimization findings and explain why it chose to deny certification rather than granting it conditionally. Accordingly, the court vacated the denial and remanded for additional agency explanation. The court remanded for further proceedings. View "Mountain Valley Pipeline, LLC v. Sierra Club" on Justia Law

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The Fifth Circuit denied petitions for review of the Service's incidental take statement and biological opinion in connection with the construction and operation of a liquefied natural gas terminal in south Texas (the Annova project). The court held that the Service complied with its obligations under the Endangered Species Act in authorizing the harm or harassment of one ocelot or jaguarundi and in determining that the proposed project was not likely to jeopardize the continued existence of either cat.In this case, the incidental take statement is not arbitrary and capricious because it clearly specifies the anticipated take and specifies the amount or extent of the anticipated take. Furthermore, the reinitiation trigger is clear and enforceable. Finally, the failure to include the reasonable and prudent measures word-for-word in the terms and conditions does not render the incidental take statement arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. The court explained that the no-jeopardy conclusion is not arbitrary and capricious where the Service's conclusion was reached after evaluating both the direct and indirect effects of an action on the cats. The court rejected petitioners' challenge to the opinion's mitigation measures, namely the conservation of acreage, as arbitrary and capricious. View "Sierra Club v. Department of Interior" on Justia Law

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The Fifth Circuit denied petitions for review of the Service's incidental take statement and biological opinion in connection with the construction and operation of a liquefied natural gas terminal in south Texas (the Rio Grande project). The court held that the Service complied with its obligations under the Endangered Species Act in authorizing the harm or harassment of one ocelot or jaguarundi and in determining that the proposed project was not likely to jeopardize the continued existence of either cat.In this case, the incidental take statement is not arbitrary and capricious because it clearly specifies the anticipated take and specifies the amount or extent of the anticipated take. Furthermore, the reinitiation trigger is clear and enforceable. Finally, the failure to include the reasonable and prudent measures word-for-word in the terms and conditions does not render the incidental take statement arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. The court explained that the no-jeopardy conclusion is not arbitrary and capricious where the Service's conclusion was reached after evaluating both the direct and indirect effects of an action on the cats. View "Sierra Club v. Department of Interior" on Justia Law

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Taylor Energy leased and operated Gulf of Mexico oil and gas properties, on the Outer Continental Shelf, offshore Louisiana. In 2004, Hurricane Ivan destroyed those operations, causing oil leaks. The Outer Continental Shelf Lands Act, the Clean Water Act, and the Oil Pollution Act required Taylor to decommission the site and stop the leaks. Taylor and the Department of the Interior developed a plan. Interior approved Taylor’s assignments of its leases to third parties with conditions requiring financial assurances. Three agreements addressed how Taylor would fund a trust account and how Interior would disburse payments. Taylor began decommissioning work. In 2009, Taylor proposed that Taylor “make the full final deposit into the trust account,” without any offsets, and retain all insurance proceeds. Interior rejected Taylor’s proposal. Taylor continued the work. In 2011, Taylor requested reimbursement from the trust account for rig downtime costs. Interior denied the request. In 2018, the Interior Board of Land Appeals (IBLA) affirmed Interior’s 2009 and 2011 Decisions.Taylor filed suit in the Claims Court, asserting contract claims. The Federal Circuit affirmed the dismissal of the suit, rejecting “Taylor’s attempt to disguise its regulatory obligations as contractual ones,” and stating an IBLA decision must be appealed to a district court.In 2018, Taylor filed suit in a Louisiana district court, seeking review of the IBLA’s 2018 decision and filed a second complaint in the Claims Court, alleging breach of contract. On Taylor's motion, the district court transferred the case, citing the Tucker Act. The Federal Circuit reversed. The Claims Court does not have subject matter jurisdiction over this case. Taylor is challenging the IBLA Decision and must do so in district court under the APA. View "Taylor Energy Co., L.L.C. v. Department of the Interior" on Justia Law

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The DC Circuit denied the State of New Jersey's petition for review of an EPA rule promulgated in response to New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005). In New York, environmental organizations and industrial entities challenged the revision of the Clean Air Act's new source review (NSR) program for preconstruction permitting of stationary sources of air pollution.As a threshold matter, the court concluded that challenges to the State's Article III standing lack merit. In this case, petitioner has identified two injuries, either of which suffices to establish standing to challenge the rule. On the merits, the court concluded that the record confirms that EPA engaged in reasoned decisionmaking. The court explained that EPA's obligation was to analyze the trade-off between compliance improvement and the burdens of data collection and reporting and articulate a reasoned judgment as to why any proposed additional burden would not be justifiable in terms of the likely enhancement of compliance. By adequately considering NSR enforcement concerns raised during this rulemaking and offering a reasoned explanation for its 50 percent trigger, the court concluded that EPA satisfied this obligation. On this record, petitioner otherwise fails to show that EPA's action was arbitrary or capricious. View "New Jersey v. Environmental Protection Agency" on Justia Law

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The Environmental Protection Agency (EPA) proposed a rule in 2011 regarding cooling water intake structures. Because aquatic wildlife can become trapped in intake structures, the Endangered Species Act required the EPA to consult with the Fish and Wildlife Service and National Marine Fisheries Service before proceeding. Issuance of a “jeopardy” biological opinion would require the EPA either to implement alternatives, to terminate the action, or to seek an exemption. After consulting with the Services, the EPA changed its proposed rule. Staff members at the Services concluded that the 2013 proposed rule was likely to jeopardize certain species and sent drafts of their opinions to the decision-makers within the Services. Those decision-makers neither approved the drafts nor sent them to the EPA but extended the consultation. In 2014, the EPA produced a revised proposed rule that differed significantly from the 2013 version. The Services issued a final “no jeopardy” biological opinion. The EPA issued its final rule.Sierra Club submitted Freedom of Information Act (FOIA) requests for records related to the consultations. The Services invoked the deliberative process privilege to prevent disclosure of the draft biological opinions analyzing the 2013 proposed rule. The Ninth Circuit held that the draft biological opinions were not privileged.The Supreme Court reversed. The deliberative process privilege protects from FOIA disclosure in-house draft biological opinions that are pre-decisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal. The privilege is intended to encourage candor and blunt the chilling effect of possible disclosure; it distinguishes between pre-decisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not. A document does not represent an agency’s final decision solely because nothing follows it; sometimes a proposal “dies on the vine.” The privilege protects the draft biological opinions from disclosure because they reflect a preliminary view, not a final decision, about the proposed 2013 rule. The draft opinions were subject to change and had no direct legal consequences. View "United States Fish and Wildlife Service v. Sierra Club, Inc." on Justia Law