Justia Environmental Law Opinion Summaries

Plaintiffs, three manufacturers of certain pesticides at issue, commenced this action challenging the biological opinion (BiOp) issued by the Service. The BiOp, which the Service provided as part of the EPA's process of reregistering the pesticides at issue, concluded that these pesticides would jeopardize the viability of certain Pacific salmonids and their habitat and that the pesticides could not be reregistered and therefore used without substantial restriction. The court concluded that the BiOp was not the product of reasoned decisionmaking in that the Service failed to explain or support several assumptions critical to its opinion. To enable a renewed agency process, the court vacated the BiOp and remanded for further proceedings. View "Dow AgroSciences LLC v. National Marine Fisheries Serv." on Justia Law

In 2010 the U.S. and Wisconsin sued, alleging that defendants polluted the Lower Fox River and Green Bay with PCBs, and had liability under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601, for response costs and destruction of natural resources, estimated at $1.5 billion. The Justice Department submitted a proposed consent decree, negotiated among the state, defendants (Brown County and the City of Green Bay), and Indian tribes. The U.S. offered $4.5 million because federal agencies might have contributed to the pollution. Menasha opposed the decree and counterclaimed against the U.S. for costs that Menasha would incur if found liable. Ordinarily a non-party to a consent decree is not bound by it, but approval of the consent decree would otherwise extinguish Menasha’s claims. Menasha sought information under the Freedom of Information Act, claiming that U.S. attorneys, being from defense and prosecution teams, actually have adverse interests, and that their communication concerning the case resulted in forfeiture of attorney work product privilege. The district court held that Menasha was entitled to the documents. The Seventh Circuit reversed, reasoning that Menasha’s claim actually amounted to assertion that the federal attorneys “ganged up” to reduce federal liability and that the documents are privileged. View "Menasha Corp. v. U.S. Dept. of Justice" on Justia Law

Southern Crushed Concrete (SCC) filed a municipal permit application with the City of Houston to move a concrete-crushing facility to a new location. The Texas Commission on Environmental Quality (Commission) had previously issued a permit authorizing construction of the facility at the proposed location. The City, however, denied the permit because the concrete-crushing operations would violate a city ordinance's location restriction. SCC sued the City, arguing that the ordinance was preempted by the Texas Clean Air Act (TCAA), which provides that a municipal ordinance may not make unlawful a condition or act approved or authorized under the TCAA or the Commission's rules or orders. The trial court granted summary judgment for the City, and the court of appeals affirmed. The Supreme Court reversed, holding that the ordinance was preempted by the TCAA and unenforceable. View "S. Crushed Concrete, LLC v. City of Houston" on Justia Law

This case stemmed from Chevron's involvement in litigation over the alleged environmental contamination of oil fields in Ecuador. Ecuador sought discovery from John Connor and GSI Environmental, his company, for use in a foreign arbitration against Chevron. During the course of extended litigation with Ecuador, Chevron, an intervenor in the district court, benefited repeatedly by arguing against Ecuador and others that the arbitration was a "foreign or international tribunal." Because Chevron's previous positions were inconsistent with its current argument, judicial estoppel was appropriate to make discovery under 28 U.S.C. 1782 available for Ecuador. Accordingly, the court reversed and remanded for determination of the scope of discovery. View "Republic of Ecuador, et al v. Connor, et al" on Justia Law

Before the mid-2000s, automobile manufacturers used a refrigerant called R-134a for automobile air conditioners. In 2006 the European Union enacted regulations requiring automobiles to use refrigerants with low “global warming potential.” The U.S. has not adopted similar regulations, but U.S. and foreign automobile manufacturers are both transitioning to 1234yf, which has a low global warming potential, and has become “remarkably successful,” according to Honeywell. Both Arkema and Honeywell wish to supply the industry with 1234yf, and both have invested substantial resources in its production. Arkema built a manufacturing facility in France and plans to build another facility to meet growing demand. Honeywell has a plant in New York and is developing a larger facility in Louisiana. Honeywell owns a number of patents relating to 1234yf. Arkema sought a declaratory judgment that by entering into contracts to supply 1234yf, it would not incur liability as an indirect infringer under the patents. The district court concluded that there was no justiciable controversy. The Federal Circuit reversed to allow Arkema to supplement. View "Arkema, Inc. v. Honeywell Int'l, Inc." on Justia Law

Plaintiffs contended that the BLM violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1701 et seq., and its own regulations, 43 C.F.R. 3809 et seq., by permitting Denison to restart mining operations at the Arizona 1 Mine in 2009, after a 17-year hiatus, under a plan of operations that BLM approved in 1988. The court concluded that the prior panel did not intend that its brief affirmation of a preliminary injunction denial become law of the case; BLM's decision to allow Denison to resume mining under the 1988 plan of operations was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; because the 1988 plan had been approved, BLM's obligation under NEPA had been fulfilled and therefore, BLM did not unlawfully withhold required agency action; BLM's update of the reclamation bond should not be set aside as not in accordance with law or without observance of procedure required by law as plaintiffs contended; BLM's invocation of the categorical exclusion was not arbitrary and capricious or otherwise not in accordance with law. Accordingly, the court affirmed the district court's judgment. View "Center for Biological Diversity, et al v. Salazar, et al" on Justia Law

In 2007, Hardin County Drainage District 55 provided Union Pacific Railroad Company with statutory notice requiring the railroad to rebuild and reconstruct damaged subterranean drainage tile found under the railroad's roadbed. Railroads are statutorily required to pay for the construction and maintenance of culverts and bridges occurring at natural waterways on the railroad's right-of-way. Union Pacific countered that the underground drainage tiles were not "culverts" as defined by the relevant statute. The district court entered judgment for the drainage district, finding the railroad breached its statutory duty to repair the drainage tile. The Supreme Court reversed, holding that the drainage tile did not fit the statutory definition of a culvert, and thus the railroad was not obligated to pay for the repairs. Remanded. View "Hardin County Drainage Dist. 55 v. Union Pac. R.R. Co." on Justia Law

Hyperion Refining, LLC applied for an air quality permit to begin construction of a proposed petroleum refinery and power plant. The Department of Environment and Natural Resources (DENR) issued the permit, and the Board of Minerals and Environment (Board) approved DENR's issuance of the permit. Three citizens appealed the issuance of the permit to the circuit court. Hyperion also appealed a permit condition that limited the amount of carbon monoxide that could be emitted from the proposed facility. The circuit court affirmed the Board's decision in all respects. The citizens and Hyperion appealed. The Supreme Court affirmed, holding (1) the Board did not abuse its discretion in issuing the air quality permit; and (2) the Board did not clearly err in determining the carbon monoxide limit. View "In re Application of Hyperion Refining, LLC" on Justia Law

The Sierra Club sought review of the EPA's regulations regarding particulate matter less than 2.5 micrometers under Section 166 of the Clean Air Act, 42 U.S.C. 7476. After the Sierra Club filed its petition, the EPA acknowledged that portions of the rule establishing Significant Impact Levels (SILs) did not reflect its intent in promulgating the SILs, and requested that the court vacate and remand some parts of its regulations. Notwithstanding the EPA's concession, the Sierra Club maintained that the EPA lacked authority to establish SILs. The court vacated and remanded to the EPA for further consideration the portions of the EPA's rule addressing SILs, except for the parts of its ruling in 40 C.F.R. 51.165(b)(2). The court granted Sierra Club's petition as to the parts of the EPA's rule establishing the Significant Monitoring Concentration (SMC), and vacated them because these parts of the rule exceeded the EPA's statutory authority. View "Sierra Club v. EPA" on Justia Law

This case stemmed from the EPA's administration of a cap-and-trade program regulating the production and consumption of hydrochlorofluorcarbons (HCFCs) under the Clean Air Act, 42 U.S.C. 7671d(c), 7671e(b). The program entailed overall caps on production and consumption of various HCFCs for each year, as well as EPA-administered baseline allowances of HCFCs for each participating company. Companies were then permitted to transfer their allowances subject to certain statutory and regulatory restrictions. Honeywell complained that certain 2008 transfers made by their competitors Arkema and Solvay were deemed to permanently increase those competitors' future baseline allowances of HCFCs. The court concluded that Honeywell's claim was foreclosed by the court's decision in Arkema, Inc. V. EPA, which held that the EPA, having approved the 2008 interpollutant transfers, had to honor them in the future at least so long as the EPA continued to set baselines by considering the historical usage of HCFCs by participating companies. The Arkema Court necessarily concluded that permanent interpollutant transfers were permissible under the statute. Absent en banc review, the court must adhere to circuit precedent. Because Honeywell's other challenges to the 2008 transfers were meritless, the court denied the petition for review. View "Honeywell International, Inc. v. EPA" on Justia Law