Justia Environmental Law Opinion Summaries

Defendant paid a general contractor for costs associated with the cleanup of a contaminated parcel of land that defendant owned. After the general contractor failed to remit those payments to plaintiff, a subcontractor who performed the work, plaintiff sought payment directly from defendant. The court concluded that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9607, did not grant the subcontractor a right to recovery against defendant in these circumstances where defendant would effectively be required to pay twice for the same work performed. Accordingly, the court reversed the district court's grant of partial summary judgment to plaintiff and remanded with instructions to grant summary judgment to defendant. View "Price Trucking Corp. v. Norampac Indus., Inc." on Justia Law

The companies obtained an oil and gas lease from the government for a 5760-acre tract on the Outer Continental Shelf. They made an initial bonus payment of $23,236,314 and have paid additional rental payments of $54,720 per year. The lease became effective on August 1, 2008, and had an initial term running through July 31, 2016. It provided that it issued pursuant to and was subject to the Outer Continental Shelf Lands Act of August 7, 1953, (OCSLA) 43 U.S.C. 1331 and “all regulations issued pursuant to the statute in the future which provide for the prevention of waste and conservation of the natural resources of the Outer Continental Shelf and the protection of correlative rights therein; and all other applicable statutes and regulations.” In 2010, an explosion and fire on the Deepwater Horizon semi-submersible oil drilling rig in the Gulf of Mexico killed 11 workers and caused an oil spill that lasted several months. As a result, the government imposed new regulatory requirements, Oil Pollution Act (OPA), 33 U.S.C. 2701. The companies sued for breach of contract. The Claims Court and Federal Circuit ruled in favor of the government, finding that the government made the changes pursuant to OCSLA, not OPA. View "Century Exploration New Orleans, LLC v. United States" on Justia Law

The district court invalidated a biological opinion (BiOp) by the FWS concluding that the Central Valley and State Water Projects jeopardized the continued existence of the delta smelt, a threatened species under the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq. As a preliminary matter, the court concluded that the district court overstepped its bounds by not limiting itself to court-appointed experts. The court concluded that the 2008 BiOp's reliance on raw salvage figures to set the upper and lower OMR (Old and Middle Rivers) flow limits was not arbitrary and capricious; the 2008 BiOp's determination of X2 (the point in the Bay-Delta at which the salinity is less than two parts per thousand) was not arbitrary and capricious; the BiOp's incidental take statements was now flawed; the record supported the BiOp's conclusions regarding the indirect effects of project operations; and the FWS was not required to support the "non-jeopardy" elements of the reasonable and prudent alternatives. The court agreed with the district court's analysis that Home Builders v. Defenders of Wildlife did not require the FWS to segregate discretionary from non-discretionary actions when it considered the environmental baseline; reclamation did not violate the ESA by accepting the 2008 BiOp; under these circumstances, the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., did not require the FWS to prepare an environmental impact statement (EIS) in conjunction with the issuance of the BiOp; and Reclamation's provisional adoption and implementation of the BiOp triggered its obligation to comply with NEPA. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "San Luis v. Jewell" on Justia Law

Petitioners challenged 2009 and 2012 final rules issued by EPA revising the new source performance standards for steam generating units. The court concluded that, because EPA has not yet resolved petitioners' petitions for reconsideration, the only objections that were properly before the court were those the petitioners made during the public comment periods. The court concluded that EPA reasonably concluded that a unit emitting more than 0.03 lb/MMBtu should remain "subject to an opacity limit" and "use a COMS or perform periodic visual inspections to comply with the opacity standard" to verify that the pollution control and monitoring systems were operating properly; UARG's procedural objection to the allegedly inadequate notice and opportunity to comment was moot; UARG's contention that EPA failed to respond to comments on the 2008 proposal was moot; and the court rejected Texas' challenges to EPA's refusal to allow state-law affirmative defenses against the enforcement of new source performance standards. Accordingly, the court denied the petitions for review. View "Utility Air Regulatory Group v. EPA" on Justia Law

The Surface Mining Control and Reclamation Act, 30 U.S.C. 1202(a) allows states to enact and administer regulatory programs consistent with federal standards, subject to federal approval. Kentucky’s Department for Natural Resources assumed responsibility for SMCRA implementation through its Division of Mine Permits, Ky. Rev. Stat. 350.028, .465(2). Its program has been approved by the U.S. Department of the Interior since 1982. A typical surface mining operation also requires permits under the Clean Water Act, 33 U.S.C. 1251: a 401 permit for “discharge into the navigable waters;” a 402 permit for “discharge of any pollutant, or combination of pollutants;” and a 404 permit for “discharge of dredged or fill material into the navigable waters at specified disposal sites.” A 404 permit is issued by the U.S. Army Corps of Engineers in compliance with EPA guidelines, 33 U.S.C. 1344(b)(1). Kentucky authorized a Perry County surface mining operation; the operator obtained 404 permit from the Corps, authorizing it to “mine through” and fill surface stream beds, which are already in a degraded state, requiring offset of the limited environmental effect by improving other streams in the watershed. Opponents argued that the National Environmental Policy Act required the Corps to consider the public health impacts related to surface mining in general, and that the Corps violated the CWA by using flawed analysis of the mitigation plan. The district court rejected the arguments. The Sixth Circuit affirmed.View "Kentuckians for the Commonwealth v. U.S. Army Corps of Eng'rs" on Justia Law

Plaintiffs challenged the construction of a high-speed rail system (the "Project") that will run through the downtown area of Honolulu under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4347, the National Historic Preservation Act (NHPA), 16 U.S.C. 470 to 470x-6, and Section 4(f) of the Department of Transportation Act, 49 U.S.C. 303. The district court granted summary judgment in favor of defendants on most of the claims and enjoined construction of the fourth phase of the Project pending a remand to the agency on the remaining Section 4(f) claims. The court concluded that plaintiffs timely appealed the dismissal of the remainder of their claims; the court had jurisdiction under either 28 U.S.C. 1292(a)(1) or 1291; the Environmental Impact Statement's (EIS's) identification of the project objectives and analysis of alternatives satisfied NEPA's requirements. Further, defendants have not violated Section 4(f) where they considered a Managed Lanes Alternative as well as other alternatives, and where they have made a good faith and reasonable effort to identify known archaeological sites along the proposed Project route and have developed an appropriate plan for dealing with sites that may be discovered during construction. Accordingly, the court affirmed the judgment of the district court. View "HonoluluTraffic.com, et al. v. FTA, et al." on Justia Law

In the 1830s, the Army Corps of Engineers began constructing harbor jetties into Lake Michigan near the St. Joseph River. In 1950 the Corps began encasing the jetties in steel-sheet piling. The project was completed in 1989. Plaintiffs own land along the lake shore, south of the jetties. The shoreline is eroding naturally, but plaintiffs allege that the jetties block the flow of sand and sediment from the river and the lakeshore north of their properties, interrupting the natural littoral drift and leading to increased erosion on their properties. In 1958, the Corps released a study that documented increased erosion in certain areas. Following another study, a mitigation plan was implemented in 1976, using fine sand. After 15 years of beach nourishment, efforts shifted to using coarser sediment; in 1995, the Corps dumped large rocks into the lake. The Corps released reports in 1973, 1996, 1997, and 1999 on the erosive effects of the jetties and the progress of mitigation. There was also a 1998 newspaper article concerning the erosion. In 1999, plaintiffs filed suit, alleging takings, 28 U.S.C. 1491. The Claims Court dismissed the actions as time-barred. The Federal Circuit reversed, holding that the court clearly erred in finding that plaintiffs knew or should have known of their claims before 1952 and violated the mandate of a previous remand.View "Banks v. United States" on Justia Law

In 1983 Bitler leased gas stations to Marathon. The Environmental Protection Agency adopted new regulations so that that underground petroleum tanks and pipes at the gas stations had to be removed, upgraded, or replaced, 40 C.F.R. 280.21(a). In 1992 the parties amended the leases to make Marathon “fully responsible for removing” the tanks and pipes, filling holes created by the removal, complying with all environmental laws, “leav[ing] the Premises in a condition reasonably useful for future commercial use,” and “replac[ing] any asphalt, concrete, or other surface, including landscaping.” Marathon agreed to return the Premises “as nearly as possible in the same condition as it was in prior to such remediation work,” and to be responsible “for any and all liability, losses, damages, costs and expenses,” and to continue paying rent. The properties can be restored as gas stations with above‐ground storage tanks, and may be suitable for other commercial outlets. After completion of the work Bitler sued Marathon, alleging breach of contract and “waste.” The Seventh Circuit vacated to waste regarding Michigan properties, with directions to double those damages. The court affirmed dismissal of some of the contract claims. It would not conform to the reasonable expectations of the parties to limit liability for waste or other misconduct by a tenant simply because a lease had to be extended for an indefinite period to allow a response to unforeseen changes. View "Bitler Inv. Venture II v. Marathon Petroleum Co. LP" on Justia Law

Petitioners challenged the FAA's no hazard determinations in 2012 for proposed wind turbines in Nantucket Sound. The court concluded that the FAA could reasonably view its Handbook procedures implementing the Secretary's regulations to establish a threshold finding necessary to trigger a further "adverse effects" analysis; given the record evidence and the level of FAA expertise involved in drawing factual conclusions from the reports, conducting the aeronautical study, and responding to comments, petitioners failed to show that the FAA findings were unsupported by substantial evidence; and petitioners' contention that the FAA was required under the National Environmental Policy Act (NEPA), 42 U.S.C. 4332, to perform or participate in an analysis of the environmental impacts of its no hazard determinations was based on a flawed premise. Accordingly, the court denied the petitions for review. View "Town of Barnstable, MA v. FAA" on Justia Law

Plaintiffs challenged BOEM's Final Environmental Impact Statement (FEIS) analyzing the environmental effects of proposed oil and gas development in the Chukchi Sea off the coast of Alaska. The court concluded that BOEM has reasonably concluded that the missing information from the FEIS and Supplemental Environmental Impact Statement (SEIS) was not "essential" to informed decisionmaking at the lease sale stage. The court concluded, however, that BOEM acted arbitrarily and capriciously by estimating that one billion barrels of oil would be economically recoverable where BOEM did not provide an adequate explanation of its selection. Accordingly, the court reversed and remanded for further proceedings. View "Native Village of Point Hope v. Jewell" on Justia Law