Justia Environmental Law Opinion Summaries

The United States Fish and Wildlife Service (“Service”) issued a Record of Decision (“ROD”) adopting a combined Environmental Impact Statement and Comprehensive Conservation Plan (“EIS/CCP”) for five of the six refuges in the Klamath Basin National Wildlife Refuge Complex (“Klamath Refuge Complex” or “Complex”) in southern Oregon and northern California. challenges to the Service’s action.   The Audubon Society of Portland (“ASP”) brought suit against the Service in the district court, arguing that the EIS/CCP violates the Kuchel Act of 1964 (“Kuchel Act”), the National Wildlife Refuge System Improvement Act as amended by the Refuge Improvement Act (“Refuge Act”), the Administrative Procedure Act (“APA”), the National Environmental Policy Act (“NEPA”), and the Clean Water Act (“CWA”) with respect to the Tule Lake and Lower Klamath Refuges in the Complex. The district court granted summary judgment to the Service.   The Ninth Circuit affirmed the district court’s summary with respect to the Tule Lake and Lower Klamath Refuges in the Klamath Basin National Wildlife Refuge Complex violated various laws. The court explained that two key statutes: the Kuchel Act of 1964, and the National Wildlife Refuge System Improvement Act, as amended by the Refuge Improvement Act, govern the Service’s management.   The court concluded that to the degree the present pattern of agricultural leasing in the Tule Lake and Lower Klamath Refuges was consistent with proper waterfowl management in those refuges, the Kuchel and Refuge Acts directed the Service to continue that present pattern of leasing. In reviewing the EIS/CCP, the panel recognized constraints on the Service and deferred to reasoned explanations provided by the Service in support of its decisions. View "AUDUBON SOCIETY OF PORTLAND V. DEB HAALAND" on Justia Law

This case was the second appeal arising out of a dispute over the operation of a commercial self-storage facility (Treelake Storage) within a planned unit development in Granite Bay (Treelake Village). Silversword Properties, LLC (Silversword) owned the property upon which K.H. Moss Company and Moss Equity (collectively, Moss) operated Treelake Storage. In a separate but related lawsuit filed in 2017, Parkford Owners for a Better Community (Parkford) challenged Placer County’s (County) issuance of a building permit for the construction of an expansion of Treelake Storage, arguing that the County failed to comply with both the California Environmental Quality Act (CEQA) and the Planning and Zoning Law. The trial court concluded: (1) the County’s issuance of the building permit was ministerial rather than discretionary, and therefore CEQA did not apply; and (2) Parkford’s challenge under the Planning and Zoning Law was barred by the statute of limitations. Parkford appealed. In August 2020, a different panel of the Court of Appeal dismissed the appeal, concluding that completion of the challenged expansion of Treelake Storage prior to entry of judgment rendered moot Parkford’s challenge to the County’s issuance of a building permit authorizing construction of the expansion. In June 2021, the trial court concluded that the lawsuit here, filed by Parkford in 2018 and challenged the County’s issuance of a business license for the operation of Treelake Storage, was barred by both aspects of the doctrine of res judicata--claim and issue preclusion. The Court of Appeal concluded “Parkford I” was not a final judgment “on the merits,” therefore res judicata did not operate to bar this suit. Accordingly, judgment was reversed and the matter remanded for further proceedings. View "Parkford Owners for a Better Community v. Windeshausen" on Justia Law

The Supreme Judicial Court affirmed the order of the superior court judge granting partial summary judgment and entering declarations in the two underlying cases that certain waterways regulations were an improper delegation of the Department of Environmental Protection's public trust responsibilities, holding that there was no error.Consistent with its public trust responsibilities, the Department set certain specifications for buildings within one hundred feet of protected tidelands and promulgated regulations purporting to allow the Secretary of Energy and Environmental Affairs to override the Department's specifications by approving substitute specifications as part of a municipal harbor plan. At issue was whether the Department had the authority to delegate this override authority to the Secretary. The Supreme Judicial Court held that the delegation was ultra vires and remanded the matter for further proceedings. View "Armstrong v. Secretary of Energy & Environmental Affairs" on Justia Law

Plaintiff regularly used Roundup on his lawn for about 30 years. Plaintiff was diagnosed with malignant fibrous histiocytoma, which he believes was linked to the main chemical ingredient in Roundup. Plaintiff filed against Monsanto, the manufacturer of Roundup®. In his four-count complaint, he alleged strict liability for a design defect under Georgia law (Count I); strict liability for failure to warn under Georgia law (Count II); negligence under Georgia law (Count III); and breach of implied warranties under Georgia law (Count IV). The district court granted Defendant’s motion, thereby eliminating Counts I and III from the Complaint. Plaintiff timely appealed the district court’s judgment on the pleadings as to Count II.   The Eleventh Circuit reversed the district court’s ruling and remanded. The court held that Plaintiff’s failure to warn claim is not preempted by the federal requirements under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) or the Environmental Protection Agency’s (“EPA”) actions pursuant to it. The court explained that sometimes IFRA or the EPA’s actions pursuant to FIFRA may preempt state law. But only federal action with the force of law has the capacity to preempt state law. Here, the problem for Monsanto is that the EPA’s registration process is not sufficiently formal to carry with it the force of law under Mead. Further, Monsanto cannot wave the “formality” wand on EPA actions to accomplish compliance with the Mead standard. None of them are the product of “notice-and-comment rulemaking” or “formal adjudication.” Nor do the EPA letters Monsanto points to “bespeak the legislative type of activity that would naturally bind” Monsanto. View "John D. Carson v. Monsanto Company" on Justia Law

To determine whether to list a given site, the EPA primarily uses the Hazard Ranking System (“HRS”), a set of comprehensive scoring points for evaluating the potential damage from hazardous waste releases. After performing an HRS analysis of a site of groundwater contamination southwest of Minneapolis, Minnesota, the EPA determined that the HRS site score exceeded the required threshold for NPL listing.   Petitioners Daikin Applied Americas Inc. and Super Radiator Coils LP, former owners of a metal fabricating facility that is a possible source of the contaminants, challenged the listing as arbitrary and capricious and unsupported by substantial evidence. Petitioners contended that the EPA arbitrarily ignored other possible sources of contamination in determining the site and that the EPA both ignored evidence disproving, and failed to provide adequate evidence of, aquifer interconnectivity.   Petitioners argued that the EPA did not adequately establish observed releases. In particular, they contend that the EPA’s chemical analysis was flawed. The DC Circuit rejected the Petitioners’ claims and denied the petition for review. The Court held that the EPA was not required to attribute the contamination to a specific source and adequately supported aquifer interconnectivity. The court wrote that Petitioners misread the chart listing the wells and the hazardous substances exceeding the release threshold. Second, the EPA did not arbitrarily select well data. Further, the EPA correctly noted that “at this stage of the listing, groundwater modeling, 3D or otherwise, to predict migration pathways [is] not required as part of an HRS evaluation." View "Daikin Applied Americas Inc. v. EPA" on Justia Law

Plaintiffs alleged that the oil and gas companies knew about climate change, understood the harms energy exploration and extraction inflicted on the environment, and concealed those harms from the public. Plaintiffs sued in Hawaii state court, asserting state-law public and private nuisance, failure to warn, and trespass claims. The complaints asserted that Defendants’ deception caused harm from climate change, like property damage from extreme weather and land encroachment because of rising sea levels.   The Ninth Circuit held that Defendants could not show federal jurisdiction. The court held that removal from state court was not proper under federal officer jurisdiction and that Plaintiffs’ injuries were for or relating to Defendants’ actions.   The court explained that Defendants did not act under federal officers when they produced oil and gas during the Korean War and in the 1970s under the Defense Production Act when they repaid offshore oil leases in kind and contracted with the government to operate the Strategic Petroleum Reserve, when they conducted offshore oil operations, or when they operated the Elk Hills oil reserve. The court further held that Defendants did not assert a colorable federal defense by citing the government-contractor defense, preemption, federal immunity, the Interstate and Foreign Commerce Clauses, the Due Process Clause, the First Amendment, and the foreign affairs doctrine. The court concluded that most of these defenses failed to stem from official duties, and the government-contractor and immunity defenses were not colorable. The court held that Defendants did not establish federal enclave jurisdiction because they could not show that activities on federal enclaves directly caused Plaintiffs’ injuries. View "CITY & COUNTY OF HONOLULU V. SUNOCO LP" on Justia Law

A nonprofit organization called California River Watch claimed that the City of Vacaville, California was violating the Resource Conservation and Recovery Act (“RCRA”). River Watch claimed the City’s water wells were contaminated by a carcinogen called hexavalent chromium. That carcinogen, River Watch says, was in turn transported to the City’s residents through its water-distribution system. River Watch’s argument on appeal was that because the hexavalent chromium originated from the Wickes site, it was “discarded material” under RCRA, and thus the City was liable for its transportation through its water-distribution system. The parties cross-moved for summary judgment. The district court granted the City’s motion and denied River Watch’s motion because, as it explained, River Watch hadn’t demonstrated how the City’s water-processing activities could qualify as discarding “solid waste” under RCRA. Thus, the district court explained, RCRA’s “fundamental requirement that the contaminant be ‘discarded’” was not satisfied. River Watch appealed. The Ninth Circuit was satisfied that hexavalent chromium met RCRA's definition of "solid waste." However, the Court found RCRA’s context makes clear that mere conveyance of hazardous waste cannot constitute “transportation” under the endangerment provision. Under the facts presented, the Court found the City did not move hexavalent chromium in direct connection with its waste disposal process. Under River Watch’s theory of liability, hexavalent chromium seeped through groundwater into the City’s wells and the City incidentally carried the waste through its pipes when it pumps water to its residents. The Court concluded City did not have the necessary connection to the waste disposal process to be held liable for “transportation” under § 6972(a)(1)(B) of the Act. Because the City could not be held liable under RCRA, the district court’s grant of summary judgment for the City was affirmed. View "California River Watch v. City of Vacaville" on Justia Law

In 2015, the Environmental Protection Agency (EPA) promulgated the Clean Power Plan rule, which addressed carbon dioxide emissions from existing power plants, citing Section 111 of the Clean Air Act,” 42 U.S.C. 7411(d). Although the states set the enforceable rules governing existing sources, EPA determines the emissions limit with which they have to comply by determining the “best system of emission reduction” (BSER). In the Clean Power Plan, EPA determined that the BSER for existing coal and natural gas plants included “heat rate improvements” at coal-fired plants and “generation-shifting,” i.e., a shift in electricity production from existing coal-fired to natural-gas-fired plants and from both coal and gas plants to renewables (wind and solar). An operator could reduce the regulated plant’s production of electricity, build or invest in new or existing equipment, or purchase emission allowances as part of a cap-and-trade regime. No existing coal plant could achieve the emissions performance rates without generation-shifting.The Supreme Court stayed the Clean Power Plan in 2016. It was later repealed when EPA determined that it lacked authority “of this breadth.” EPA then promulgated the Affordable Clean Energy (ACE) rule, mandating equipment upgrades and operating practices. The D.C. Circuit held that EPA’s repeal of the Clean Power Plan rested on a mistaken reading of the Clean Air Act and vacated the ACE rule.The Supreme Court reversed. Congress did not grant EPA the authority to devise emissions caps based on the Clean Power Plan's generation-shifting approach. Restructuring the nation’s mix of electricity generation cannot be the BSER under Section 111. Under the major questions doctrine, an agency must point to “clear congressional authorization” for such an unprecedented exercise of authority. On EPA’s view of Section 111(d), Congress implicitly tasked it alone with balancing vital considerations of national policy. Issues of electricity transmission and distribution are not within EPA’s traditional expertise. The Clean Power Plan “conveniently enabled" EPA to enact a program, cap-and-trade, that Congress rejected numerous times. View "West Virginia v. Environmental Protection Agency" on Justia Law

Petitioners, all environmental organizations, sought to vacate the Federal Energy and Regulatory Commission’s (“FERC” or the “Commission”) order giving the green light to Mountain Valley, LLC to construct a new pipeline. That pipeline, the “Southgate Project,” would extend Mountain Valley’s Mainline System Project, connecting its terminus in Virginia to facilities in North Carolina. Its “newness,” as an extension of the nonoperational Mainline System Project, is one of the prime subjects of dispute.   Petitioners also requested that the DC Circuit vacate the Commission’s denial of rehearing. Petitioners challenged the Commission’s Certificate Order and its denial of rehearing as arbitrary and capricious on two bases: the approved return on equity rate and the adequacy of the Commission’s Environmental Impact Statement.     The DC Circuit denied the petition finding that the Commission’s decisions on both scores were reasonable and supported by substantial evidence. The court wrote that Petitioners’ fear that the return on equity presents a market-skewing incentive is misplaced. The long-term agreement shows an actual need for the Project, not an attempt to overbuild purely for profit.   Further, Petitioners do not marshal compelling evidence to counter the Commission’s cumulative impacts analysis. The City of Roanoke briefing lists downstream sediment as a concern of the Mountain Valley pipeline but does not present any statistical evidence contradicting FERC’s conclusions. Further, the research Petitioners presented in their rehearing request, allegedly demonstrating that fine sediment can travel hundreds of miles and therefore will accumulate between the two Projects, is taken from an environmental product company’s website. These sources thus do not call into question the Commission’s analysis. View "Sierra Club v. FERC" on Justia Law

The Eleventh Circuit was tasked with determining whether the Tampa Electric Company violated OSHA’s Hazardous Waste Operations and Emergency Response  (“HAZWOPER”) standard when employees at one of its power plants responded to an ammonia release without donning certain protective gear.   The case arose when one of the underground pipes became over-pressurized, and, as it was designed to do, the system automatically diverted ammonia from that pipe to the sump. About 45 minutes after the ammonia began to vent, a security guard heard the alarm sounding at the skid and smelled ammonia. He began having trouble breathing and reported the leak. Once notified, control-room personnel dispatched “rovers”—specially trained response employees—to manage the ammonia release   Because the rovers arrived at the skid without a “self-contained breathing apparatus[es],” OSHA fined Tampa Electric $9,054 under 29 C.F.R. Section 1910.120(q)(3)(iv). Tampa Electric appealed the citation. The Occupational Safety and Health Review Commission (“Commission”) held that Tampa Electric’s response to the ammonia release wasn’t an “emergency response” within the meaning of the HAZWOPER standard and, therefore, that the company hadn’t violated that standard. The Eleventh Circuit denied the petition for review and affirmed the order of the Commission. The court held that the release here was controlled— or, in the words of the regulation, that it wasn’t “uncontrolled.” Because the response to it wasn’t an “emergency response,” the HAZWOPER standard didn’t apply to the rovers’ conduct. And because the HAZWOPER standard didn’t apply, Tampa Electric didn’t violate it. View "U.S. Department of Labor v. Tampa Electric Company" on Justia Law