Justia Environmental Law Opinion Summaries

Three questions of law were certified to the Supreme Court from the federal district court. The certified questions arose from a complaint from Petitioner Hempstead County Hunting Club, Inc. (Hempstead). Hempstead contended that Respondent Southwestern Electric Power Company (SWEPCO) violated multiple public utilities statutes in the construction of its "Turk Plant." The first question from the federal court involved whether Hempstead was required to bring its claims before the state Public Service Commission (PSC) before suing in federal court. The Supreme Court concluded that under Arkansas law, Hempstead was first required to bring its claims before the Arkansas PSC. A court review of its claims should be precluded until Hempstead exhausted its administrative remedies. As a result, the Supreme Court did not address the remaining two certified questions.

Sierra Forest Legacy and other organizations (collectively, "Sierra Forest") appealed a largely unfavorable summary judgment against them and a favorable but limited remedial order in their National Environmental Policy Act ("NEPA"), 42 U.S.C. 4321 et seq., and National Forest Management Act ("NFMA"), 16 U.S.C. 1600 et seq., suit challenging the 2004 Sierra Nevada Forest Plan Amendment ("2004 Framework") and the Basin Project, a timber harvesting project approved under the 2004 Framework. The State of California ("California") also appealed a summary judgment against it and a limited remedial order in a related NEPA action. At issue was whether the process of establishing management guidelines governing 11.5 acres of federal land in the Sierra Nevada region complied with both the procedural requirements of NEPA and the substantive restrictions of NFMA. The court affirmed the district court's decision on the merits of Sierra Forest and California's NEPA claim and held that Sierra Forest and California had standing to assert a facial NEPA claim against the 2004 Framework but that the 2004 Framework supplemental environmental impact statement ("SEIS") adequately addressed short-term impacts to old forest wildlife and disclosed and rebutted public opposition. The court also held that the Forest Service did not violate NEPA when approving the Basin Project because the U.S. Forest Service and related federal defendants (collectively, "Federal Service") adequately addressed cumulative impacts of the proposed management act. The court further held that the Forest Service violated NEPA by failing to update the alternatives from the 2001 Framework SEIS to reflect new modeling techniques used in the 2004 Framework SEIS. However, the court vacated the district court's orders granting a limited remedy and remanded for reconsideration of the equities of a "substantive" injunction without giving undue deference to government experts. The court remanded also because it reversed the district court's decision on Sierra Forests' NFMA claims.

After first filing claims in a U.S. district court, inhabitants of eastern Ecuador filed suit in their country, alleging that the company contaminated the area and caused residents' health problems. The company, attempting to establish fraud and collusion in the proceedings, sought discovery from the plaintiffs' attorney for use in that litigation, in criminal proceedings in Ecuador, and in arbitration initiated against the Republic of Ecuador with the United Nations. The district court granted discovery under 28 U.S.C. 1782, which provides that the court of the district in which a person is found may order him to give testimony or to produce a document or thing for use in a proceeding in a foreign tribunal, unless the disclosure would violate a legal privilege. The court concluded that attorney-client privilege had been waived because documentary film-makers had been allowed intimate access to proceedings involving the environmental litigation. The Third Circuit reversed in part, holding that the public disclosure of certain communications did not lead to "subject matter waiver" of attorney-client privilege for communications that were covered by the privilege. The court remanded for consideration of whether certain communications are discoverable pursuant to the crime-fraud exception to the attorney-client privilege.

African-Americans residing near a contaminated landfill claim that municipalities knew that well water was contaminated, warned Caucasian families and provided alternate sources of water, but did not warn African-Americans. In their suit under the Equal Protection Clause, 42 U.S.C. 1983, Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and state laws, a magistrate compelled testimony by plaintiffs' former counsel; the city asserted that, if plaintiffs consulted the attorney in 2000, the action is barred by the one-year statute of limitations. During a deposition, the attorney refused to answer some questions. The court granted a motion to compel. The Sixth Circuit dismissed an appeal for lack of jurisdiction. Plaintiffs were not appealing a final judgment and did not qualify for interlocutory review under the Perlman exception or the collateral order doctrine. Immediate review is appropriate if an order conclusively determines a disputed issue separate from the merits that is too important to be denied review and will be effectively unreviewable on appeal from a final judgment. Privilege is important and the attorney is a disinterested non-party, so the contempt-citation avenue of review is practically foreclosed, but plaintiffs, asserting the privilege, ultimately can avail themselves of a post-judgment appeal that suffices to protect the rights of the litigants and preserve the vitality of attorney-client privilege.

Plaintiffs filed a citizen enforcement suit alleging that defendant was discharging toxic pollutants from the Seward Small Boat Harbor and a boat repair yard. At issue was whether the district court abused its discretion in denying an award of attorney fees to plaintiffs pursuant to section 505(d) of the Clean Water Act ("CWA"), 33 U.S.C. 1365(d). The court held that the district court abused its discretion in concluding that special circumstances supported its denial of an award of attorney fees. Accordingly, the court vacated the district court's judgment and remanded with instructions to award plaintiffs' fees and costs that were reasonably incurred in furtherance of the CWA's purpose.

Oyster Creek in Ocean County, New Jersey was licensed under the Atomic Energy Act, 42 U.S.C. 2133(c) in 1969 for a 40-year term and is the oldest operating commercial nuclear power plant in the country. Objectors claimed that the application for license renewal was deficient with respect to detection of corrosion in a safety structure. The Atomic Safety and Licensing Board rejected the claims; the Nuclear Regulatory Commission granted the license. After examining the objectors' specific technical claims, the Third Circuit denied review. The Board and the NRC provided hundreds of pages detailing their decision-making and gave due consideration to objectors' concerns; the review was well-reasoned and within the realm of the agency's unique expertise.

Plaintiff, an Oregon non-profit organization, sued defendants under the citizen suit provision of the Clean Water Act ("CWA"), 33 U.S.C. 1365(a), alleging that defendants violated the CWA and its implementing regulations by not obtaining permits from the Environmental Protection Agency ("EPA") for stormwater, largely rainwater, runoff that flowed from logging roads into systems of ditches, culverts, and channels and was then discharged into forest streams and rivers. At issue was whether plaintiff's complaint was properly dismissed with prejudice under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The court reversed the district court's dismissal and held that stormwater runoff from logging roads that was collected by and then discharged from a system of ditches, culverts, and channels was a point source discharge for which a National Pollutant Discharge Elimination System permit was required.

After a 2003 oil spill, Massachusetts enacted an Oil Spill Prevention Act (MOSPA), which the federal government challenged as preempted by the Ports and Waterways Safety Act (33 U.S.C. 1221-1232 and parts of 46 U.S.C.) and Coast Guard regulations. While the case was pending on remand, the Coast Guard enacted a regulation pertaining to navigation on Buzzards Bay, which is claimed to expressly preempt MOSPA. The district court entered an injunction prohibiting enforcement of certain provisions of MOSPA. The First Circuit again reversed and remanded. The Coast Guard's reliance on a categorical exclusion and failure to prepare an environmental assessment or environmental impact statement violated the National Environmental Policy Act, 42 U.S.C. 4332; its finding that the rule was not likely to be highly controversial was arbitrary. The error was not harmless. Because the rule is invalid, the court did not address preemption.

The Georgia animal-rendering operation was investigated under the Clean Water Act. Felony charges were dismissed and the company entered a plea of guilty to misdemeanor negligent discharge of waste water. The EPA subsequently received FOIA requests from outside parties, requesting documents it had obtained from the company. The EPA determined that documents obtained pursuant to search warrant or grand jury subpoena were exempt from disclosure, that other material had to be reviewed to determine whether exemptions applied, and that documents obtained from court dockets and state agencies are publicly available and not exempt from disclosure. The company sought a temporary restraining order, claiming that it was entitled to review the files before release of any information, and that confidential business information contained in the publicly available documents is exempt from disclosure. After three years, the district court ruled in favor of the company and awarded $116,038 in attorney fees. The Sixth Circuit reversed because the district court did not make a finding, and the record would not support a finding, of bad faith, necessary to support the award under the Equal Access to Justice Act, 28 U.S.C. 2412.

An underground pipeline leaked gasoline five times between 1948 and 1962. After tests revealed benzene in wells, not including the plaintiffs' well, the company conducted remediation and monitoring and purchased the property now owned by the plaintiffs. The plaintiffs bought the property and a low level of benzene was detected in the well in 1996. The company installed a new well, which tested free of benzene 22 times between 1997 and 2002. Benzene was detected at a very low level in 2003 and the plaintiffs moved in 2005. In 2002 one of the plaintiffs was diagnosed, at age 48, with non-Hodgkins lymphoma. The district court entered summary judgment for the company. The Sixth Circuit affirmed. The district court acted within its discretion in excluding, as unreliable under the Daubert standard, an expert's specific-causation opinion. The expert did not ascertain the level of plaintiff's exposure and the level of benzene in the well never exceeded the EPA's standard; the expert did not rule out other possible causes, such as the plaintiff's smoking.