Justia Environmental Law Opinion Summaries

This appeal stemmed from a petition to review the EPA's August 2011 implementation of the statutory good neighbor requirement, the Transport Rule, also known as the Cross-State Air Pollution Rule, which defined emissions reduction responsibilities for 28 upwind States based on those States' contributions to downwind States' air quality problems. The court held that the Transport Rule exceeded the EPA's statutory authority (1) by using the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text and (2) by departing from its consistent prior approach to implementing the good neighbor provision and violating the Clean Air Act, 42 U.S.C. 7401 et seq., because it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders. View "EME Homer City Generation, L.P v. EPA" on Justia Law

Plaintiffs, cattle producers, appealed the district court's dismissal of their Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b)(1), complaint, alleging that a government employee negligently caused illness and death within their cattle herd by mandating a toxic plant mixture on pasture land enrolled in a conservation program. The district court held that the allegations of negligence involved the employee's exercise of protected discretion and therefore fell within the discretionary function exception to the FTCA's waiver of sovereign immunity. The court held that the employee's selection of a seeding plan was discretionary but that it was not the type of discretionary action Congress intended to shield from suit. View "Herden, et al. v. United States" on Justia Law

In this declaratory judgment proceeding, the defendant, Citizens Insurance Company of America, appealed a superior court order which ruled in favor of the plaintiff, The Barking Dog, Ltd., which operates a dog kennel and grooming business at several locations in New Hampshire. The court ruled that an insurance policy issued by the defendant provided coverage for damage to the plaintiff’s septic system and ordered the defendant to pay the plaintiff $20,000, the agreed upon damage amount. The court also ruled that the defendant was not prejudiced by the plaintiff’s failure to disclose its expert’s report in a timely manner or its failure to disclose its expert’s curriculum vitae and, accordingly, permitted the plaintiff’s expert to testify at trial. The defendant argued that both rulings were error. Finding no error, the Supreme Court affirmed. View "The Barking Dog, Ltd. v. Citizens Insurance Company of America" on Justia Law

A private company applied to build a wastewater treatment facility that would occupy many acres within the area protected by the Coastal Zone Act (CZA). The application proceeded through multiple layers of review, and came before the Supreme Court to decide where this facility fit within the CZA’s classification scheme, how to enforce the regulations governing “offsets” when the facility constitutes its own offset and the permit contains conditions, and the legal status of an order from the Coastal Zone Industrial Control Board that a majority of members agreed to, but less than a majority signed. The Court remanded the case to the Board, with instructions that the facility at issue is neither a “heavy industry” use nor a “manufacturing” use, and that the Board should take care to follow the statutory requirement that all members of a quorum of a Board sign any order on which they voted. View "Sierra Club Citizens Coalition Inc. v. Tidewater Environmental Services, Inc." on Justia Law

The Fish and Wildlife Services, an agency in the Department of the Interior, removed the West Virginia Northern Flying Squirrel from the list of endangered species. Friends of Blackwater filed a complaint in the district court claiming (1) promulgation of the delisting rule violated the Endangered Species Act by ignoring the objective, measurable criteria in the Recovery Plan and (2) the Rule itself was arbitrary and capricious. The district court entered summary judgment for the plaintiff on the ground that the Service violated the Act by removing the squirrel from the list of endangered species when several criteria in the agency's Recovery Plan for the species had not been satisfied. The D.C. Circuit Court of Appeals reversed, holding (1) the district court erred by interpreting the Recovery Plan as binding the Secretary of the Interior in his delisting decision; and (2) the Service's action was not arbitrary, capricious, and contrary to law. View "Friends of Blackwater v. Salazar" on Justia Law

In June 2004, Petitioners-Appellants Hui O Na Wai 'Eha and Maui Tomorrow Foundation, Inc. (Hui/MTF), through Earthjustice, petitioned Appellee Commission on Water Resource Management to amend the Interim Instream Flow Standards (IIFS) for Na Wai 'Eha, which had been in place since 1988. Around the same time, several parties, including Appellee Maui County Department of Water Supply (MDWS), and Appellees Hawaiian Commercial & Sugar Company (HC&S) and Wailuku Water Company (WWC), filed Water Use Permit Applications (WUPA) for the same area. The Commission held a combined case hearing to resolve the IIFS and WUPA; in addition to the petitioner and applicants, the Office of Hawaiian Affairs (OHA) applied to participate in the hearing. The appeal before the Supreme Court sought review of the Commission's resulting Findings of Fact, Conclusions of Law (FOF/COL), and Decision and Order (D&O), in which the Commission amended the IIFS for two of the four streams, and substantially retained the existing IIFS for the two remaining streams as measured above diversions. The FOF/COL and D&O also resolved several WUPA. Hui/MTF and OHA appealed on related grounds: their primary complaint was that the Commission erred in balancing instream and noninstream uses, and therefore the IIFS does not properly protect traditional and customary native Hawaiian rights, appurtenant water rights, or the public trust. Both parties also contested the Commission’s treatment of diversions, including an alternative source on HC&S’s plantation that could have been used to irrigate HC&S’s cane fields. The parties contested the Commission’s determination that HC&S would not be required to pump the alternate source to its full capacity, a decision that resulted in a higher estimated allowable diversion for HC&S, and lower IIFS for the streams. Upon review, the Supreme Court reversed and remanded the case for further proceedings. First, in considering the effect of the IIFS on native Hawaiian practices in Na Wai 'Eha, the Commission failed to enter findings of fact and conclusions of law regarding the effect of the amended IIFS on traditional and customary native Hawaiian practices regarding the feasibility of protecting any affected practices. Second, the Commission’s analysis of instream uses was incomplete. Third, the Commission erred in its consideration of alternative water sources and in its calculation of diverting parties’ acreage and reasonable system losses. View "In re 'Iao Ground Water Management Area High-Level Source Water Use Permit Applications" on Justia Law

Sixteen years tardy, the Environmental Protection Agency (EPA) disapproved a revision to Texas's plan for implementing the requirements of the Clean Air Act (CAA). The untimely disapproval unraveled approximately 140 permits issued by Texas under the revision's terms and required regulated entities to qualify for pre-revision permits or risk federal sanctions. Petitioner - the State of Texas, the U.S. Chamber of Commerce, and representatives of nationwide manufacturing, chemical and petroleum industries - petitioned for review of the EPA's action under the APA. The Fifth Circuit Court of Appeals vacated the EPA's disapproval of Texas's plan, holding that the EPA's disapproval failed APA review, as the EPA based its disapproval on demands for language and program features of the EPA's choosing without basis in the CAA or its implementing regulations. View "State v. EPA" on Justia Law

Grand Canyon Trust appealed the district court's grant of summary judgment in favor of the United States Bureau of Reclamation (Reclamation) and the United States Fish and Wildlife Service (FWS) rejecting the Trust's claims alleging that Reclamation and FWS violated the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act in the operation of the Glen Canyon Dam. The Ninth Circuit Court of Appeals dismissed as moot in part and affirmed in part, holding (1) several of the Trust's claims were moot; (2) Reclamation did not violate the ESA by not consulting with FWS before issuing each annual operating plan (AOP) for the Dam; and (3) Reclamation did not violate NEPA by not preparing an environmental assessment or environmental impact statement for each AOP. View "Grand Canyon Trust v. U.S. Bureau of Reclamation" on Justia Law

This was a dispute over rights to use water from the Teton River in Montana. Giese, Kelly and Reichelt use water from the downstream portion of the Teton near Fort Benton, Montana. They claimed generally that they are damaged by diversion practices on the upstream portion of the Teton near Choteau, Montana, and that their "calls" on upstream appropriators to release water for their downstream use have been ignored. They first filed a petition for a writ of prohibition in the District Court in February, 2011, and ultimately filed second and third amended petitions seeking to halt certain water diversions from the Teton. The issue underlying this case arose in part from the decision in "Perry v. Beattie." "Perry" decreed the priority date and flow rate of about 40 water right claims in the upper Teton River west of Choteau. The District Court appointed a Water Commissioner pursuant to 85-5-101, MCA, to administer the water rights decreed in "Perry." The majority of water users on the Teton (and their successors in interest, including downstream users Giese, Kelly and Reichelt) were not parties to the Perry case. Giese, Kelly and Reichelt claimed water rights from the Teton with priority dates that are senior to or contemporary with the upstream rights decreed in Perry. Water right claimants on the Teton were participating in the Water Court’s on-going adjudication of water rights under Title 85, Chapter 2 of the Montana Code. While that process was nearing its final stages, it was not yet complete and the Water Court did not issue a final decree. Giese, Kelly and Reichelt challenged the Water Commissioner’s practice of diverting the flow of the Teton down the Bateman Ditch. They contended that their water rights pre-date the rights of many upstream Perry decree rights and pre-date the Water Commissioner’s diversion of the Teton through the Bateman Ditch. They contended that since the Bateman Ditch was not used to divert the entire river at the time of the Perry decree, the Water Commissioner lacked the authority to make the diversion. The Supreme Court restated the issue on appeal as whether the District Court erred in dismissing Appellants’ request for certification to the Chief Water Judge pursuant to 85-2-406(2)(b), MCA. Upon review, the Court reversed and remanded the case to the District Court with instructions to certify all appropriate issues to the Chief Water Judge as provided in 85-2-406(2)(b), MCA, and to grant such injunctive or other relief that, in the District Court’s discretion, it determined to be necessary and appropriate. View "Giese v. Blixrud" on Justia Law

Plaintiff-Appellant Charles Fellows appealed a district court's order that dismissed his complaint. Plaintiff owned a water right in Spring Creek. He claimed that the flow of the creek was for many years recharged by water seeping from the natural channel of the Teton River. He claimed that the practice of diverting water from the natural channel of the Teton implemented by the district court's water commissioner on the Teton adversely affected the water available to satisfy his water right in Spring Creek. The district court dismissed Plaintiff's complaint on the ground that it failed to state a claim upon which relief could be granted. The court held that Plaintiff lacked standing to bring an action as a dissatisfied water user unless he could prove a hydrological connection between Spring Creek and the Teton River. Upon review, the Supreme Court found that Plaintiff's factual allegations and his request for a declaratory ruling were sufficient to invoke the district court's power to issue a ruling on the issue of connectivity. Accordingly, the Supreme Court reversed the district court and remanded the case for further proceedings. View "Fellows v. Water Commissioner et al" on Justia Law