Justia Environmental Law Opinion Summaries

The Department regulates the use of pesticides, including 1,3-Dichloropropene (1,3-D), which is used in agriculture. Only Dow produces 1,3-D for use in California As a condition of Dow’s continued registration of 1,3-D products, the Department maintains a “township cap program,” which limits the amount of the pesticide that may be used each year to reduce cancer risks to bystanders. Plaintiffs filed a petition for a writ of mandate, claiming that the township cap program was an underground regulation in violation of the Administrative Procedure Act and fails to incorporate recommendations from the California Office of Environmental Health Hazard Assessment as required under the Food and Agriculture Code.The trial court granted summary judgment, declaring the township cap program void and directing the Department to engage in formal rulemaking to replace it. The court of appeal affirmed, agreeing that the program is an underground regulation. A regulation subject to the APA may exist even if the agency never promulgates a written policy setting forth the rule. The fact that Dow happens to be the only registrant of 1,3-D does not mean the Department can informally regulate the pesticide at will while its rules are implemented as conditions of Dow’s registration; the township cap program is a rule of general application. The program governs how 1,3-D will be used, not how the Department will register pesticides, and clearly implements and makes specific the law the Department administers. View "Vasquez v. Department of Pesticide Regulation" on Justia Law

In this action for a temporary injunction in connection with the intake and discharge of water from the Long Island Sound and nearby bodies of water by Dominion Nuclear Connecticut, Inc., the owner and operator of a nuclear power station, the Supreme Court ultimately affirmed the judgments in favor of Defendants, holding that the trial court did not err.This case was before the Supreme Court for the third time. Plaintiff brought this action under the Connecticut Environmental Protection Act of 1971 (CEPA), Conn. Gen. Stat. 22a-14 et seq., against Dominion and the Department of Environmental Protection, challenging the Department's decision to issue a National Pollutant Discharge Elimination system permit to Dominion to authorize the intake and discharge of water by the plant, arguing that the permit renewal proceeding was inadequate. On remand for the second time from the Supreme Court, the trial court rendered judgment in favor of Defendants. The Supreme Court affirmed, holding (1) the administrative proceeding was not inadequate; and (2) Plaintiff's remaining claims on appeal were inadequately briefed. View "Burton v. Department of Environmental Protection" on Justia Law

The environmental harm at the Indianapolis property developed over at least 50 years. Four adjacent properties have changed hands several times and have been used for manufacturing and industrial businesses that used degreasers and various chemical products. The solvents have degraded over time and have seeped into the groundwater and soil in the surrounding residential area. Investigations showed that vapors emitting from the underground contamination have intruded into homes and a local park. Major acquired the property in 2007 and has not released any hazardous materials.Von Duprin. whose predecessor once owned property in the area, undertook cleanup efforts and sought to recover some of those costs and future remediation costs. Von Duprin sued former and current owners and operators of the properties under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601. Current owners or operators of a site where hazardous materials were released may be held liable under CERCLA without having caused a release.The district court found that Von Duprin and two other former or current owners and operators in the area bore responsibility for portions of the environmental harm, then assigned liability among and between all three parties. The Seventh Circuit affirmed in part but vacated the court’s threshold determination under section 107(a) of CERCLA that liability for remediating the environmental harm is divisible—capable of being apportioned on the basis of principles of causation—among and between the parties to this litigation. View "Von Duprin LLC v. Major Holdings, LLC" on Justia Law

Following a remand from the Vermont Supreme Court, the Public Utility Commission (PUC) denied petitioner’s request for a certificate of public good (CPG) to construct a 2.0 megawatt (MW) solar facility on Apple Hill in the Town of Bennington, Vermont. Petitioner appealed, arguing the PUC erred in: (1) denying its request to amend its petition; (2) concluding that the Bennington Town Plan and Bennington Regional Plan contained clear community standards and that the project would violate those standards; (3) applying the “modified Quechee” standard in the aesthetics analysis without having gone through rulemaking; (4) treating the provisions of the Bennington Town Plan as if they were binding zoning ordinances in violation of 24 V.S.A. 4413; (5) failing to consider the positive benefits of the project with respect to greenhouse-gas emissions in the contexts of its aesthetics analysis; and (6) applying vague and standardless tests in violation of its constitutional rights. After review, the Vermont Supreme Court rejected significant portions of the PUC’s rationale for denying petitioner a CPG, therefore reversed and remanded for additional proceedings. View "In re Petition of Apple Hill Solar LLC" on Justia Law

Justin and Maureen Savage (landowners) owned a 176-acre parcel of undeveloped land in a rural area near Cavendish, Vermont. Snowstone, LLC, sought to buy a portion of landowners’ property to operate a dimensional stone extraction project. After executing the contract, Snowstone requested a jurisdictional opinion from the Act 250 district coordinator to determine whether the project would need an Act 250 permit. A group of neighboring landowners (neighbors) filed comments, arguing that the project would require said permit. The district coordinator issued a jurisdictional opinion, concluding that the proposed project needed an Act 250 permit because the project constituted “development,” defined in relevant part as “[t]he construction of improvements for commercial or industrial purposes on more than one acre of land within a municipality that has not adopted permanent zoning and subdivision bylaws.” Snowstone appealed the jurisdictional opinion to the Environmental Division, presenting the court with a revised contract that reduced the purchase price, removed the right of first refusal, and excised the deed restriction. Neighbors successfully intervened, arguing that the two parcels would be controlled by the same person due to the nature of the sales transaction, that the retained parcel would be “involved land,” and that the project would require a stormwater discharge permit with stormwater treatment facilities that would increase the amount of land necessary to operate the project beyond one acre. The court scrutinized the revised sales contract and determined that, with the excision of the former objectionable provisions, the contract evinced an arms-length transaction such that Snowstone and landowners were not one person. Accordingly, the court concluded that the entire 176 acres did not require an Act 250 permit. The Neighbors appealed, but finding no reversible error, the Vermont Supreme Court affirmed the Environmental Division's judgment. View "In re Snowstone, LLC Act 250 Jurisdictional Opinion" on Justia Law

The Second Circuit denied petitions for review of the EPA's final rule restricting access by consumers to methylene chloride, a dangerous chemical used in paint removal products. Petitioners contend that the Toxic Substances Control Act required the EPA to regulate commercial uses of methylene chloride as well as consumer uses. The court held that HSIA's challenge to the final rule fails because the final rule was supported by substantial evidence. In this case, EPA's implementation of a retailer distribution ban was a reasonable means to achieve its required goal of ensuring that the risks posed by consumer uses of methylene chloride were no longer presented. The court also concluded that the environmental petitioners' challenge is prudentially unripe for review at this time. View "Labor Council for Latin American Advancement v. Environmental Protection Agency" on Justia Law

The Supreme Judicial Court vacated the order of the superior court granting summary judgment in favor of Defendants and dismissing a complaint brought by the Conservation Commission of Norton, holding that the Wetlands Protection Act, Mass. Gen. Laws ch. 131, 40, did not bar this action.The Commission issued an enforcement order to owners of property on which unauthorized fill had been placed by a prior owner, ordering the current owners (Defendants) to remove the fill. The Commission brought this action seeking injunctive relief and civil penalties when Defendants failed to comply with the order. The superior court concluded that that the Act created a statute of repose that prevented the Commission from bringing the enforcement action more than three years following the first transfer of ownership in the property after the alleged violation occurred. The Supreme Judicial Court vacated the order below, holding that the Act did not bar the action because the Commission commenced this enforcement action against Defendants within three years of the recording of the deed by which they acquired title. View "Conservation Commission of Norton v. Pesa" on Justia Law

Wood smoke produced by home heaters can produce grave health consequences. To account for differences between residential and industrial or commercial sources, and in recognition that residential wood heater manufacturers are often small businesses, EPA regulates wood heaters’ emissions under the Clean Air Act, 42 U.S.C. 7411(b)(1)(A) through a certification program. Instead of requiring the testing of every heater, the program allows manufacturers to obtain certification to sell an entire model line based on satisfactory emissions testing of a single representative heater. EPA accepts test results from private, EPA-approved laboratories hired by the manufacturers. EPA may randomly select heaters from certified model lines for audit testing. Under its 1988 Rule, EPA called on the same laboratory that had done the certification testing for audit testing. The 1988 Rule referred to “restricting where and how audit testing could occur, at least until EPA studied and better understood interlaboratory variability.”The D.C. Circuit rejected challenges to the portion of the EPA 2015 rule updating those audit standards. When EPA proposed the current Rule, it explained the evolution of its understanding of test variability. It described how, based on analyses of testing proficiency data and improved testing methods developed since 1988, concerns about interlaboratory audit testing as a distinct source of variability were shown to have been overstated. It refined the audit procedures to address identified causes of variability. EPA acknowledged and adequately explained the changes and substantial evidence supports those changes. View "Hearth, Patio & Barbecue Association v. Environmental Protection Agency" on Justia Law

The Environmental Protection Agency approved California’s plan for meeting the air quality standard for ozone in the San Joaquin Valley (Clean Air Act, 42 U.S.C. 7408(a), 7409(a)). The plan contains a single contingency measure that will be activated if the other provisions do not achieve reasonable further progress toward meeting the standard.The Ninth Circuit remanded, finding the approval arbitrary after holding that AIR, a California nonprofit corporation with members who reside in the Valley, had Article III standing. AIR’s challenge was ripe for review. When an agency changes its policy, it must display awareness that it is changing position and show that there are good reasons for the new policy. In approving a contingency measure that provided a far lower emissions reduction, the EPA did not acknowledge that it had changed its understanding of what reasonable further progress meant. The EPA may not avoid the need for robust contingency measures by assuming that they will not be needed and did not provide a reasoned explanation for approving the plan. The court rejected AIR’s challenge to the approval of the State’s Enhanced Enforcement Activities Program. The program did not create an emission limitation that was less stringent than one in effect in the state plan so nothing in the Clean Air Act prohibited the state from pursuing it. View "Association of Irritated Residents v. United States Environmental Protection Agency" on Justia Law

The Bureau of Land Management (BLM) published the 2012 Integrated Action Plan/Environmental Impact Statement (IAP/EIS) for the Petroleum Reserve-Alaska. In 2014, BLM granted ConocoPhillips permission to construct a drill pad in the Greater Moose Tooth (GMT) Unit within the Reserve and issued a GMT supplemental EIS, relying on the 2012 IAP/EIS. In 2018, BLM granted ConocoPhillips permission to construct another GMT drill pad, issuing a second GMT supplemental EIS. In 2018, ConocoPhillips applied to drill in another Unit. BLM published an environmental assessment that purportedly incorporated the 2012 IAP/EIS and the two GMT supplemental EISs. BLM did not issue an EIS but found no new significant impact. ConocoPhillips completed the program in April 2019. In March 2019, objectors sued, citing the National Environmental Policy Act.The Ninth Circuit concluded that the case was moot because neither court could grant any relief. The only lasting physical features of the drilling were capped wells; there was no indication that ConocoPhillips could undo the drilling of those wells. The “capable of repetition, yet evading review” exception to mootness did not apply. Although a case generally will not be moot when the environmental report at issue will be used by the agency in approving a future project, the legal landscape has changed. The Council of Environmental Quality has issued new NEPA regulations. BLM issued a 2020 IAP/EIS for the Reserve, Plaintiffs have not shown a “reasonable expectation” that they will be subjected to an EA tiering to the 2012 IAP/EIS again. View "Native Village of Nuiqsut v. Bureau of Land Management" on Justia Law