by
A series of appeals concerned a dispute over competing rights to irrigation tail and waste water that collected in a borrow ditch. The Colorado Supreme Court was asked to determine whether a driveway that interrupted the flow of water in the ditch rendered the sections of borrow ditch on either side of the driveway separate sources of water for purposes of the postponement doctrine. S. Cade and Bradley Huffaker and a neighboring landowner, Lee Crowther, filed competing applications for rights to this water. The Huffakers filed their application in 2013; Crowther filed his in 2016. The Huffakers argued that under the postponement doctrine, they were entitled to the senior right in the borrow ditch water because they filed their application first. The water court held that the postponement doctrine did not apply here because it concluded the water rights claimed by the Huffakers and Crowther did not derive from the same source. Therefore, the court held that Crowther’s right to divert water at the culvert was not junior to the Huffakers’ right, even though Crowther’s application was filed two and a half years after the Huffakers’ application. The Huffakers appealed, again contending that the postponement doctrine applied to determine the priority of the applicants’ competing rights to the water in the borrow ditch, and that they were entitled to the senior priority because they filed their application first. They further argued the collection area of their absolute water right began not at the driveway, but farther south (upstream) at the same point as Crowther’s right. The Supreme Court agreed with both contentions and reversed the water court. View "Concerning the Application for Water Rights of S. Cade Huffaker" on Justia Law

by
Petitioners challenged the EPA's 2017 rule establishing a process for updating the inventory of chemicals manufactured or processed in the United States under the Toxic Substances Control Act, alleging that the rule unlawfully shields information from public disclosure. The DC Circuit affirmed the petition for review in part and held that petitioner correctly determined that the EPA's elimination of questions pertaining to reverse engineering was arbitrary and capricious. Accordingly, the court ordered a limited remand, without vacatur, for the EPA to address its arbitrary elimination of substantiation questions regarding reverse engineering. The court otherwise denied the petition. View "Environmental Defense Fund v. EPA" on Justia Law

by
After ONDA challenged the BLM's Recreation Plan, which involved the route network for motorized vehicles in the Steens Mountain Area, the Interior Board of Land Appeals approved the related Travel Plan under the National Environmental Policy Act of 1969 (NEPA), the Federal Land Policy Management Act of 1976 (FLPMA), and the Steens Mountain Cooperative Management and Protection Act of 2000 (Steens Act). Harney County then intervened to defend the Board's approval of the Travel Plan and cross-claimed against the BLM, challenging the Recreation Plan. The district court upheld both the Recreation Plan and the Travel Plan. The Ninth Circuit affirmed in part and reversed in part, holding that the BLM satisfied its obligation to consult the Steens Mountain Advisory Council before issuing the Recreation Plan, so its action was not arbitrary and capricious in that respect; the BLM acted arbitrarily and capriciously by changing its definition of "roads and trails" without providing a reasoned explanation for the change; the Board acted arbitrarily and capriciously by affirming the BLM's issuance of the Travel Plan; and the BLM acted arbitrarily and capriciously in issuing the Recreation Plan. Finally, the court vacated the cost award to the BLM and remanded. View "Oregon Natural Desert Assoc.v. Rose" on Justia Law

by
The Supreme Court affirmed the decision of the Florida Public Service Commission (PSC) allowing the Florida Power and Light Company (FPL) to recover certain environmental compliance costs from ratepayers pursuant to Fla. Stat. 366.8255, known as the Environmental Cost Recovery Clause, holding that the PSC's findings were supported by competent, substantial evidence. On appeal, the Citizens of the state of Florida, the Office of Public Counsel argued, among other things, that section 366.8255 limits cost recovery to costs incurred in preventing future environmental harm. The Supreme Court affirmed, holding (1) because of the nature of the environmental harm at issue in this case, prevention and remediation were inextricably intertwined, and therefore OPC's reading of section 366.8255(1)(c) is rejected; and (2) the PSC did not err when it determined the costs of a consent order and consent agreement were within the scope of a 2009 monitoring plan, for which the PSC had previously approved recovery. View "Citizens of State of Florida v. Brown" on Justia Law

by
In 2005, the Ginsburgs, through their corporation (Hawthorne), acquired Brooklyn property and applied to participate in the Brownfield Cleanup Program. The New York State Department of Environmental Conservation (DEC) approved their application and the parties entered into an Agreement. The development was completed in 2011, converting an old shoe factory into a residential rental building. In 2011, the Ginsburgs granted the state an environmental easement; DEC issued a certificate of completion. Hawthorne applied for a brownfield redevelopment tax credit of $6,583,835.10 for tax year 2011, with the Ginsburgs’ share equaling $4,975,595.00, In 2013, the state paid the Ginsburgs a refund of $1,903,951.00 attributable to the brownfield redevelopment tax credit. They did not report the payment as income on their 2013 federal income tax return, claiming that this payment constituted a nontaxable refund. The IRS determined the Ginsburgs owed an additional $690,628.46 in federal income tax, which they paid. The Federal Circuit affirmed the Claims Court, holding that the excess payment of the tax credit they had received from the state is federally taxable income and “does not qualify for any exclusion or exception from the federal definition of income.” The Ginsburgs freely chose to participate and take advantage of New York’s state tax credit program and have complete dominion and control over the payment because there is a legally adequate guarantee that they will be allowed to excess amount of the tax credit, barring actionable misconduct on their part. View "Ginsburg v. United States" on Justia Law

by
This case involved issuance of a revised permit for the Potrero Hills Landfill in Solano County, pursuant to the California Integrated Waste Management Act. Appellant Sustainability, Parks, Recycling and Wildlife Defense Fund (SPRAWLDEF) contended the revised permit was improper because it allowed expanded operations not in conformance with the “countywide siting element” of Solano County’s countywide integrated waste management plan (CIWMP). SPRAWLDEF claimed the California Integrated Waste Management Board, as an administrative body, had no right to invoke the judicial doctrine of failure to exhaust administrative remedies to decline to hear SPRAWLDEF’s administrative appeal. SPRAWLDEF also contended the Board deliberated in closed session, in violation of the Bagley-Keene Open Meeting Act. After review, the Court of Appeal concluded SPRAWLDEF failed to preserve the conformance issue at all stages of the administrative proceedings. The Board was not required to entertain the administrative appeal. To the extent the Board nevertheless addressed the merits, given the statutory language, SPRAWLDEF failed to demonstrate reversible error. As to the open meeting law, the Court of Appeal concluded that even if closed session deliberations were improper, SPRAWLDEF failed to show prejudice warranting the nullification remedy it sought. View "SPRAWLDEF v. Dept. of Resources Recycling and Recovery" on Justia Law

by
The Ninth Circuit reversed the district court's dismissal of an action brought by conservationist groups to enjoin the federal government's participation in the killing of gray wolves in Idaho pending additional analysis under the National Environmental Policy Act of 1969 (NEPA). The panel held that the conservationist groups had Article III standing because declarations from members described how USDA Wildlife Services's wolf-killing activities threatened their aesthetic and recreational interests. Therefore, the members established that the interests fell within the scope of NEPA's protections and they established an injury-in-fact. The panel noted that causation was established under the relaxed standard for procedural injuries. Finally, the panel held that the district court erred in finding that plaintiffs' injuries were not redressable and in relying on an unpublished opinion that lacked precedential value. View "Western Watersheds Project v. Grimm" on Justia Law

by
The DC Circuit denied the States' petition for review of the EPA's decision to refuse to expand the Northeast Ozone Transport Region to include the upwind States of Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia, and the remaining portions of Virginia. The court held that EPA's denial of the States' petition complied with the Clean Air Act and was a reasonable exercise of the agency's discretion. The court held that many of the States' arguments against EPA's denial derive from a fundamental misunderstanding of the scope of EPA's discretion; even if the States were correct that EPA's other Clean Air Act tools will not on their own completely solve the interstate ozone transport problem, this would not make enlargement of the transport region mandatory; EPA adequately explained the facts and policy concerns it relied on, recounted its historical use of the good-neighbor provision and the ongoing downward trend in ozone pollution, and therefore had a sufficient basis in the record for predicting that improvement would continue under the current regulatory scheme; and, with respect to the Northeast Region, EPA did not find equity irrelevant, as the States contend, but rather determined that any equitable concerns could not alone dictate the disposition of the petition. View "State of New York v. EPA" on Justia Law

by
The Supreme Court affirmed the opinion of the court of appeals reversing the circuit court's order requiring the Energy and Environment Cabinet to pay the outstanding balance owed to the court-appointed receiver after the conclusion of litigation regarding Jeffrey Bowling's five wastewater treatment plans that were discharging untreated sewage into Kentucky waters, holding that Kentucky law does not support requiring the Cabinet to pay the outstanding balance owed to the receiver. Beginning in 2004, the Cabinet notified Bowling that his plants were improperly operated and maintained. Bowling failed to resolve the plant conditions, and the Cabinet filed a complaint against him seeking a temporary injunction and requesting that the trial court appoint a receiver. Almost nine years later at the conclusion of the litigation, the receiver was owed $27,005. The trial court assessed this amount against the Cabinet. The court of appeals reversed, ruling that only Bowling could be liable for the money owed to the receiver. The Supreme Court affirmed, holding that no special circumstances existed to justify requiring the Cabinet to cure the receiver's deficiency. View "Baughman v. Commonwealth" on Justia Law

by
WildEarth Guardians appealed after the United States Forest Service published a 2014 environmental assessment (“EA”) to the Tennessee Creek Project, and subsequently issued a Decision Notice and Finding of No Significant Impact. The Service undertook the project for a stated purpose of protecting from insects, disease, fire, improvement of wildlife habitat and to maintain watershed conditions. One of the conclusions in the EA determined none of these actions would adversely impact the Canadian lynx. WildEarth Guardians alleged the EA failed to adequately assess the Project’s effects on lynx and by failing to prepare an environmental impact statement (EIS). The district court upheld the agency action. The Tenth Circuit affirmed the Agency’s actions, finding the Service satisfied its National Environmental Policy Act (NEPA) obligations when it reasonably concluded in its EA that under a worst-case scenario the lynx would not be adversely affected by the Project and reasonably concluded that an EIS was not necessary. View "WildEarth Guardians v. Conner" on Justia Law