Justia Environmental Law Opinion Summaries

Using a methodology known as "stable isotope analysis," an expert hired by the city determined that the most likely dominant source of the perchlorate found in the city's groundwater was sodium nitrate that had been used as fertilizer. The city sued SQM, the company that imported sodium nitrate into the United States. Before trial, the district court held an evidentiary hearing under Daubert v. Merrell Dow Pharmaceuticals, Inc., and excluded the city's expert. The court reversed the district court's exclusion of the expert's testimony. The district court should not have made credibility determinations that were reserved for the jury; the Federal Rules of Evidence did not require an endorsement from the EPA approving the expert's results and the district court's conclusion to the contrary was an abuse of discretion; the district court erroneously ruled that the expert's methodologies have not been and cannot be tested; and the district court's resolution of the reference database was an abuse of discretion and sufficient grounds for reversal where the matter was for the jury to decide. The court affirmed the district court's denial of SQM's motion for summary judgment where SQM failed to show that there was no genuine factual dispute as to whether the city's claims were barred by the economic loss rule or by the applicable statute of limitations. View "City of Pomona v. SQM" on Justia Law

Cedar & Washington, a real estate developer, filed suit against the owners and lessees of the World Trade Center and others under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-9675, seeking recovery of costs incurred in remediating a nearby building contaminated by the September 11, 2001 attack on the World Trade Center. The court concluded that the attack constituted an "act of war" for purposes of CERCLA's affirmative defense. The attacks directly and immediately caused the release of harmful substances (WTC dust), and were the "sole cause" of the release because the attack "overwhelm[ed] and swamp[ed] the contributions of the defendant[s]." Accordingly, the court affirmed the district court's dismissal of Cedar & Washington's claim. View "In re: September 11 Litigation" on Justia Law

Until the early 1970s, CBS (formerly Westinghouse) manufactured electrical capacitors at a Bloomington plant, using insulating fluid containing PCBs, which are carcinogens to humans and wildlife. CBS deposited defective capacitors at landfills where PCBs escaped and entered the environment and discharged PCB-laden water to a local sewage treatment plant. After PCB contamination was discovered and traced to six sites, federal, state, and municipal governments filed a Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. 9600, enforcement action, which resulted in a 1985 consent decree requiring CBS to dig up all PCB-contaminated materials at the sites and destroy them in a high-temperature incinerator. The Indiana legislature blocked the plan. The parties agreed on modified remedies for three sites but were unable to agree on remedies for the Lemon and Neal Landfills and Bennett’s Dump, all on CERCLA’s National Priorities List. The parties negotiated in stages to allow clean up to begin before resolution of all issues and established three phases. Stage 1 required CBS to remove sediment from the landfill contamination hot spots, to clean sediment at Bennett’s Dump to “industrial standards,” and to install caps at all three sites. After CBS completed Stage 1 in 2000, tests showed that PCBs had migrated into the bedrock and were still being released from into water and sediment. Stages 2 and 3 address current and future contamination of groundwater and sediment. In 2009 the district court approved a consent amendment in the ongoing CERCLA action and rejected citizens’ claims with respect to phases two and three. The Seventh Circuit affirmed. Section 113(h)(4) prevents the courts from reviewing claims about stages in progress, but does not bar judicial review of claims about the first remedial stage that are not affected by continuing clean-up efforts.View "Frey v. Envtl. Prot. Agency" on Justia Law

After the Forest Service denied Ark's Emergency Petition seeking "roadless" designation for roughly 1,000 acres on Burnt Mountain and suspension of the Aspen Skiing Company's authorization to cut trees on that land, Ark filed suit against the Service in district court. The district court granted summary judgment to the Service and denied reconsideration. As a threshold matter, the court concluded that Ark had Article III standing to challenge the Service's final action denying the Emergency Petition. On the merits, the court concluded that the Service's denial of the Emergency Petition was not arbitrary or capricious or contrary to law, and Ark failed to show an abuse of discretion on reconsideration. View "Ark Initiative, et al. v. Tidwell, et al." on Justia Law

The Clean Air Act (CAA) requires national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health, 42 U.S.C. 7408. Once EPA establishes NAAQS, it designates “nonattainment” areas; each state must submit a State Implementation Plan, (SIP), within three years of any new or revised NAAQS. From the date EPA determines that a SIP is inadequate, EPA has two years to promulgate a Federal Implementation Plan (FIP). SIPs must comply with a Good Neighbor Provision, and “contain adequate provisions ... prohibiting .. . any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will ... contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to” NAAQS. In response to flaws in its 2005 Clean Air Interstate Rule, identified by the D. C. Circuit, EPA promulgated the Cross-State Air Pollution Rule (Transport Rule), curbing nitrogen oxide and sulfur dioxide emissions in 27 upwind states to achieve downwind attainment of three NAAQS and providing that an upwind state contributed significantly to downwind nonattainment if its exported pollution produced at least one percent of a NAAQS in a downwind state and could be eliminated cost-effectively. EPA created an annual emissions “budget” for each upwind state and contemporaneously promulgated FIPs allocating each state’s budget among its pollution sources. The D.C. Circuit vacated the rule as exceeding EPA’s authority. The Supreme Court reversed. The CAA does not require that states be given another opportunity to file a SIP after EPA has quantified interstate pollution obligations. Disapproval of a SIP, without more, triggers EPA’s obligation to issue a FIP within precise deadlines. That EPA had previously accorded upwind states a chance to allocate emission budgets among their sources does not show that it acted arbitrarily by refraining to do so in this instance. The Good Neighbor Provision does not dictate a method of apportionment, so EPA had authority to select from among reasonable options; nothing precludes the final calculation from relying on costs. By imposing uniform cost thresholds on regulated states, the rule is efficient and is stricter on states that have done less pollution control in the past and does not amount to “over-control.” View "Envtl. Prot. Agency v. EME Homer City Generation, L. P." on Justia Law

The EPA promulgated emission standards for a number of listed hazardous air pollutants emitted by coal- and oil-fired electric utility steam generating units. In this complex case, the court addressed the challenges to the EPA's Final Rule by State, Industry, and Labor petitioners, by Industry petitioners to specific aspects of the Final Rule, by Environmental petitioners, and by Julander Energy Company. The court held that the EPA's finding in the Final Rule was substantively and procedurally valid, and consequently any purported defects in the 2000 finding have been cured, rendering petitioners' challenge to the December 2000 "appropriate and necessary," finding moot; because the EPA's approach was based on a permissible construction of section 112(n)(1)(A) of the Clean Air Act, 42 U.S.C. 7412(n)(1)(A), it was entitled to deference and must be upheld; the EPA reasonably concluded it need not consider costs in making its "appropriate and necessary" determination; the EPA did not err in considering environmental effects alongside health effects for purposes of the "appropriate and necessary" determination; the EPA did find, as petitioners contended that it was required to do, that electric utility steam generating units (EGUs) emissions alone would cause health hazards; the EPA reasonably concluded that the framework set forth in section 112(c) and 112(d) provided the appropriate mechanism for regulating EGUs under section 112 after the "appropriate and necessary" determination was made; and the EPA's conclusion that it may regulate all hazardous air pollutants (HAPs) emissions from EGUs must be upheld. The court also concluded that the EPA's "appropriate and necessary" determination in 2000, and its reaffirmation of that determination in 2012, were amply supported by EPA's findings regarding the health effects of mercury exposure; the EPA reasonably declined to interpret section 112 as mandating classification of EGUs as major sources and area sources; the EPA's data-collection process when calculating the maximum achievable control technology (MACT) floor for mercury emissions from existing coal-fired EGUs was reasonable, even if it may not have resulted in a perfect dataset; the court rejected UARG's petition to remove coal-fired EGUs from the list of sources regulated under section 112; the EPA did not act arbitrarily or capriciously in relying on the chromium emissions data to which petitioners objected; Industry petitioners' circulating fluidized bed EGUs-related arguments were unavailing; the court rejected Industry petitioners' arguments regarding lignite-fired EGUs; and the EPA's decision not to issue a blanket deadline extension was not arbitrary and capricious. Finally, the court rejected challenges by Environmental petitioners and Julander Energy Company. Accordingly, the court denied the petitions challenging the Final Rule. View "White Stallion Energy Center v. EPA" on Justia Law

Conrad, the “Banana Lady,” a self‐employed singer and dancer, performs in a giant banana costume. After performing a “singing telegram” at a credit union trade association event, she sued, charging infringements of intellectual property rights. Although Conrad claims that she stated that her performance was not to be recorded, except for “personal use,” photos were posted on websites. The district judge dismissed, finding most of the claims precluded by an earlier Wisconsin state court suit, also dismissed. The judge rejected a claim of copyright infringement, over which federal courts have exclusive jurisdiction, on the merits. The Seventh Circuit affirmed, first questioning Conrad’s copyright on the costume, because similar costumes are a common consumer product. The performance was not copyrightable, not being “fixed in any tangible medium of expression,” 17 U.S.C. 102(a). While she has the exclusive right to create or license reproductions of and derivative works from works that she has validly copyrighted, 17 U.S.C. 106(1), (2), it is unlikely that the photos and videos were derivative works. The Act forbids unauthorized recording of a musical performance, 17 U.S.C. 1101(a), and unauthorized display of copyrighted musical or choreographic work, section 106(5), but she did not cite either provision. The court noted Conrad’s “incessant filing of frivolous lawsuits” and suggested that the lower courts “consider enjoining her from filing further suits until she pays her litigation debts.” View "Conrad v. AM Cmty Credit Union," on Justia Law

Petitioners, three non-profit environmental and wildlife organizations, filed suit challenging EPA's decisions concerning both the primary and secondary standards for carbon monoxide. The primary standards for carbon monoxide have remained the same since 1971 and there has not been a secondary standard for carbon monoxide since EPA revoked a secondary standard in 1985. In 2011, EPA decided to keep things as they were: to retain the same primary standards and to continue without a secondary standard. The court concluded that EPA acted reasonably in retaining the same primary standards for carbon monoxide, and that petitioners lacked Article III standing to challenge EPA's decision not to set a secondary standard for carbon monoxide. Accordingly, the court denied the petition for review of the primary standards and dismissed the petition for review of the secondary standard for lack of standing. View "Communities for a Better Environment, et al. v. EPA" on Justia Law

This case involved numerous claims concerning environmental hazards at three sites on Navajo land in Arizona. El Paso, the successor-in-interest to the corporation that mined uranium at the Mill, filed suit against the United States and others, raising claims under the Uranium Mill Tailings Radiation Control Act of 1978, 42 U.S.C. 7901-7942, and the Solid Waste Disposal Act, commonly referred to as the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901-6992k. The Tribe intervened and asserted parallel claims under these acts, as well as additional claims against the Government. The court reversed the dismissal "with prejudice" of El Paso's RCRA claims that related to the Dump; remanded with instructions to the district court to enter judgment against El Paso "without prejudice;" vacated the district court's dismissal of El Passo's RCRA claims as to the Highway 160 Site; remanded the case so that these claims could be considered on the merits; and the court affirmed the judgment of the district court in all other respects. View "El Paso Natural Gas Co. v. United States, et al." on Justia Law

The USDA decided to change its rules to allow roads to be built through an Alaskan forest it had previously ruled should be roadless. The district court held invalid the 2003 Record of Decision (ROD) that temporarily exempted the Tongass National Forest from application of the 2001 Roadless Area Conservation Rule. Alaska appealed the order. The court concluded that the USDA's actions in settling the lawsuit and its reasoned explanation in the ROD supported the finding that the USDA believed that promulgating the Tongass exception would decrease litigation over the Roadless Rule. Under FCC v. Fox Television Stations' deferential standard, the USDA's ROD was not arbitrary and capricious. Further, it was not arbitrary and capricious for the USDA to promulgate the Roadless Rule exception to increase timber production to meet predicted future demand. Another reason for the USDA's promulgation of the ROD was because of its appreciation of the socioeconomic hardships created by the Roadless Rule. The court held that all of the USDA's reasons were acceptable under the Administrative Procedures Act (APA), 5 U.S.C. 701-706. Accordingly, the court reversed and remanded. View "Organized Village of Kake v. USDA" on Justia Law