Justia Environmental Law Opinion Summaries

In 2010, real parties in interest applied to the City of Santa Cruz to construct a 40-unit development on a parcel of land located at 1930 Ocean Street Extension. Following an initial mitigated negative declaration and years of litigation surrounding the impact of the nearby crematory at Santa Cruz Memorial Park, in 2016, the real parties in interest renewed their interest in moving forward with their project. As required by the California Environmental Quality Act (CEQA), the project applicant and the City of Santa Cruz prepared and circulated the initial study, the draft environmental impact report (EIR), the partially recirculated draft EIR, and the final EIR. Following a public hearing, the city council adopted a resolution to certify the EIR and to adopt Alternative 3, a 32-unit housing project. The Ocean Street Extension Neighborhood Association (OSENA) filed a petition for writ of mandamus, alleging the City of Santa Cruz and its city council violated CEQA and the Santa Cruz Municipal Code in approving the project. The trial court concluded the City had complied with CEQA, but it determined the City violated the municipal code, and it issued a limited writ prohibiting the City from allowing the project to proceed unless and until it followed the municipal code and the court was satisfied with its compliance. Following entry of judgment, OSENA appealed, arguing the court erred by concluding the City complied with CEQA’s requirements. OSENA contended the City violated CEQA by: (1) insufficiently addressing potentially significant biological impacts and mitigation measures in the initial study rather than in the EIR directly; (2) establishing improperly narrow and unreasonable objectives so that alternative options could not be considered meaningfully; and (3) failing to address cumulative impacts adequately. The City cross-appealed, contending the court incorrectly concluded it violated the municipal code by granting a planned development permit without also requiring the project applicant to comply with the slope modifications regulations After review, the Court of Appeal agreed with the City, and affirmed that portion of the trial court's order and judgment concluding it complied with CEQA. The Court reversed the portion of the order and judgment concluding the City violated its municipal code. View "Ocean Street Extension Neighborhood etc. v. City of Santa Cruz" on Justia Law

The Wild Fish Conservancy (WFC) challenged the Washington Department of Fish and Wildlife's (WDFW) approval of a permit that allowed Cooke Aquaculture Pacific LLC to change fish species to commercially farm steelhead trout in Puget Sound. The WFC alleged: (1) WDFW’s conclusion that an environmental impact statement (EIS) was not required was clearly erroneous; and (2) WDFW violated the State Environmental Policy Act (SEPA) by failing to consider and disclose appropriate alternatives to the proposal under RCW 43.21C.030(2)(e). The WFC asked the Washington Supreme Court to reverse the permit approval and order WDFW to complete an EIS. The superior court found WDFW’s SEPA analysis was not clearly erroneous and the steelhead permit application did not trigger RCW 43.21C.030(2)(e). Finding no reversible error in that judgment, the Supreme Court affirmed. View "Wild Fish Conservancy v. Dep't of Fish & Wildlife" on Justia Law

The federal government used the 433-acre Institute Facility for synthetic rubber production during World War II. In 1947, UCC purchased the Facility and began manufacturing hydrocarbon and agricultural products. In 1986-2015, the property was owned and operated by various companies, before ownership returned to UCC, a subsidiary of Dow Chemical. In 1984, UCC applied for a permit to operate hazardous waste management units, under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901. The EPA published a report documenting groundwater contamination at the Facility. Since 1988, as part of the permitting process, the EPA instituted corrective actions at the Facility to address groundwater contamination. In 2013, the West Virginia Department of Administration transferred land to West Virginia State University (WVSU), so that WVSU was immediately adjacent to the Facility. WVSU refused to sign an environmental covenant agreeing not to use the groundwater and ultimately filed suit in state court, asserting state and common law claims and seeking remedial measures, beyond those recommended by the EPA.Defendants removed the action to federal court invoking federal question jurisdiction, diversity jurisdiction, and federal officer jurisdiction, 28 U.S.C. 1331, 1332, 1441, 1442, and 1446. The Fourth Circuit affirmed a remand to state court. Defendants were not “acting under” the “subjection, guidance, or control” of the EPA. There is no federal question jurisdiction, 28 U.S.C. 1331, over WVSU’s state claims because they neither challenge an EPA-directed CERCLA “cleanup” under nor arise from RCRA remedial measures and, thus, are not preempted. View "West Virginia State University Board of Governors v. The Dow Chemical Co." on Justia Law

In the early 1900s, New York City used a Brooklyn powerhouse to provide electricity for its trolley system. In 1940, the City took ownership of the power plant and removed a smokestack, placed it in the building's basement, on top of a mechanical system that was insulated with friable asbestos-containing material, and buried it under a concrete slab. Enterprises acquired the property in 1986. An asbestos inspection by the city revealed that the property was contaminated with PCBs. The property was placed on New York’s Registry of Inactive Hazardous Waste Disposal Sites, rendering it effectively worthless. The state began remediation in 2015. The discovery of the buried smokestack and friable asbestos-containing material postponed the project indefinitely. New York City continued to tax the property according to its “best intended use” as a warehouse. Rather than paying the taxes or properly challenging their validity, Enterprises ignored them. The taxes became liens.In 2018, Enterprises filed for Chapter 11 bankruptcy and initiated an adversary proceeding against the city, alleging “continuous trespass,” and seeking a declaratory judgment that the city is responsible for the hazardous waste and resulting damage and improperly taxed the property. The bankruptcy court dismissed the adversary proceeding. The Eleventh Circuit affirmed. Even assuming the latest possible date of discovery, Enterprises’ trespass claim is time-barred. The Bankruptcy Abuse Prevention and Consumer Protection Act, 11 U.S.C. 505(a)(2)(C), prohibited the court from redetermining the tax assessments. View "5200 Enterprises Ltd. v. City of New York" on Justia Law

Environmental groups filed suit, alleging that the federal government unlawfully issued oil and gas leases on federal land. The district court stayed vacatur of the lease sales pending appeal. Two weeks later, Chesapeake, an independent producer of oil and natural gas, moved to intervene as a defendant, noting that it had already spent more than $19.7 million to acquire, explore, and develop its leases.The Ninth Circuit reversed the denial of the motion. Chesapeake was entitled to intervention as of right under FRCP 24(a). Chesapeake has a significantly protectable interest that could be impaired by the disposition of this action, its intervention motion was timely, and its interests will not be adequately represented by existing parties. The court noted the stage of the proceedings at which Chesapeake sought to intervene; potential prejudice to other parties; and the reason for and length of the delay. The likelihood that additional parties and arguments might make the resolution of the case more difficult was a poor reason to deny intervention. Although Chesapeake moved to intervene more than two years after the start of the litigation, its motion came just three months after it discovered that its leases were involved in the litigation, and just two weeks after the district court stayed vacatur of the lease sales. Chesapeake made sufficiently colorable arguments that another intervenor would not make all of Chesapeake’s proposed arguments. View "Western Watersheds Project v. Haaland" on Justia Law

Defendants’ businesses focused on large diesel trucks and related parts, merchandise, and media. In 2017 Defendants were sued by Plaintiff Utah Physicians for a Healthy Environment (UPHE), a nonprofit organization that alleged, among other things, that Defendants were tampering with required emission-control devices and installing so-called “defeat devices” in violation of the Clean Air Act (CAA) and Utah’s State Implementation Plan. After a bench trial the court entered judgment in favor of UPHE, finding Defendants collectively liable for hundreds of violations of the CAA and Utah’s plan and assessing over $760,000 in civil penalties. On appeal Defendants challenged UPHE’s Article III and statutory standing, the district court’s inclusion of certain kinds of transactions in its tabulation of violations, and the court’s penalty analysis. Although the Tenth Circuit rejected most of Defendants’ arguments, it felt compelled to remand this case back to the district court for additional proceedings because: (1) UPHE lacked Article III standing to complain of conduct by Defendants that had not contributed to air pollution in Utah’s Wasatch Front; and (2) the district court needed to reevaluate the seriousness of Defendants’ violations of the Utah plan’s anti-tampering provision. View "Utah Physic. for Healthy Env't v. Diesel Power Gear, et al." on Justia Law

At issue before the Oregon Supreme Court in this case wa whether the hydroelectric water right for a hydroelectric power plant that has not operated for 26 years was subject to conversion to an in-stream water right, upon a finding that such conversion would not injure other existing water rights. The holder of a hydroelectric water right stopped operating the associated hydroelectric power plant in eastern Oregon (the “project”) in 1995 and the project was decommissioned; afterward, the holder leased the water right to the state for use as an in-stream water right. That lease was periodically renewed over the last 21 years, and the Oregon Water Resources Department (WRD) never commenced the process for converting the hydroelectric water right to an in-stream water right. Whether the water right here should have been subject to conversion depended on the meaning and interaction of two statutes: ORS 543A.305 (the “conversion statute”), and ORS 537.348 (the “lease statute”). Petitioner WaterWatch of Oregon argued that, under the conversion statute, the hydroelectric right was subject to conversion because no water was used under that right for hydroelectric purposes since 1995, and, therefore, use has ceased. WRD and the current holder of that hydroelectric water right, Warm Springs Hydro LLC contended the right was not subject to conversion because, even though the water has not been used for hydroelectric purposes, the water has been used for in-stream purposes during the periodic leases of the water right to the state under the lease statute. Therefore, respondents contended, use did not entirely cease in any given five-year period. The Supreme Court agreed with WaterWatch and held that the hydroelectric water right now held by Warm Springs Hydro was subject to conversion to an in-stream water right under the terms of ORS 543A.305. The Court therefore reversed the Court of Appeals’ decision and the judgment of the circuit court, and remanded to the circuit court for further proceedings. View "WaterWatch of Oregon v. Water Resources Dept." on Justia Law

The Supreme Court affirmed the final order and summary judgment order of the Montana Water Court adjudicating eleven United States Bureau of Reclamation (BOR) water rights claims in Basin 41B, holding that there was no error in the proceedings below.The BOR's claims to direct flow from the Beaverhead River and reservoir storage in the Clark Canyon Reservoir were associated with the East Bench Unit Reclamation Project. The East Bench Irrigation District (EBID) and the Clark Canyon Water Supply Company (CCWSC) had contracts with the BOR to deliver water from the project. The Supreme Court affirmed, holding (1) the Water Court's findings of fact regarding the maximum irrigated acreage for the EBID were supported by substantial evidence; (2) the Water Court did not err by not providing specific boundaries or maximum irrigated acreage for the CCWSC place of use on the BOR's Clark Canyon Reservoir storage claim; and (3) the Water Court did not err in removing a curtailment remark from all CCWSC shareholders' private water rights in this action. View "East Bench Irrigation District v. Open A Ranch, Inc." on Justia Law

The Water Rights Permitting Reform Act of 1988 provides a streamlined process for acquiring a right to appropriate up to 10 acre-feet of water per year from a stream into a storage facility, such as a pond or tank, by registering the use with the State Water Resources Control Board, paying a fee, and subsequently putting the water to “reasonable and beneficial use.” Given its lack of discretion over individual permits, the board has designated the registration process generally to be exempt from the California Environmental Quality Act (CEQA, Pub. Resources Code 21000) as a ministerial decision.Mission Peak sued the board, alleging CEQA violations by granting a small domestic use registration to the Georges without first conducting an environmental review. The Georges’ registration form, on its face, met the program requirements. Mission Peak alleged that the form was replete with false information, of which the board was or should have been aware. The court of appeal affirmed the dismissal of the suit. The registration was exempt from CEQA as a ministerial act. Conducting an environmental review would be a meaningless exercise because there is no discretion to reduce a project’s environmental damage by requiring changes. View "Mission Peak Conservancy v. State Water Resources Control Board" on Justia Law

The City of San Diego (City) certified an environmental impact report (EIR) for the “Serra Mesa Community Plan [SMCP] Amendment Roadway Connection Project” (Project) and approved an amendment to the SMCP and the City’s General Plan to reflect the proposed roadway. Save Civita Because Sudberry Won’t (“Save Civita”) filed a combined petition for writ of mandate and complaint for declaratory and injunctive relief (Petition/Complaint) against the City, challenging the City’s certification of the EIR and approval of the Project. Save Civita contended that the City violated the California Environmental Quality Act (“CEQA”), the Planning and Zoning Law, and the public’s due-process and fair-hearing rights. The trial court denied the Petition/Complaint in its entirety and entered a judgment in favor of the City. On appeal, Save Civita raised four claims related to the City’s certification of the EIR for the Project: (1) the City violated CEQA Guidelines section 15088.5, subdivision (g) in failing to summarize revisions made in the Project’s recirculated draft EIR (RE-DEIR); (2) the Project’s final EIR (FEIR) was deficient because it failed to adequately analyze, as an alternative to the Project, a proposal to amend the MVCP to remove the planned road from that community plan; (3) the FEIR is deficient because it failed to adequately analyze the Project’s traffic impacts; and (4) the FEIR failed to adequately discuss the Project’s inconsistency with the General Plan’s goal of creating pedestrian-friendly communities. In addition to its EIR / CEQA claims, Save Civita maintains that the Project will have a deleterious effect on the pedestrian-friendly Civita community and that the City therefore violated the Planning and Zoning law in concluding that the Project is consistent with the City’s General Plan. Finally, Save Civita maintains that the City acted in a quasi-adjudicatory capacity in certifying the FEIR and approving the Project and that a City Council member violated the public’s procedural due process rights by improperly advocating for the Project prior to its approval. Finding no reversible error, the Court of Appeal affirmed the trial court's judgment in favor of the City in its entirety. View "Save Civita Because Sudberry Won't v. City of San Diego" on Justia Law