Justia Environmental Law Opinion Summaries

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

BNSF Railway sought a declaration that the Interstate Commerce Commission Termination Act of 1995 (ICCTA) preempts Clark County, Washington’s permitting process. Clark County asserted that BNSF needed to obtain a permit for a project to upgrade an existing track and construct a second track in the Columbia River Gorge.The Ninth Circuit affirmed summary judgment in favor of BNSF. Under the ICCTA, the Surface Transportation Board has exclusive jurisdiction over rail carriers and track construction. If an apparent conflict exists between the ICCTA and a federal statute, then the courts must strive to harmonize the two laws, giving effect to both if possible. The court rejected an argument that the Columbia River Gorge National Scenic Area Act is such a federal statute. The Gorge Act does not establish national environmental standards but provides a framework for a commission of state-appointed officials to adopt a management plan and implement it through county land use ordinances. The Columbia River Gorge Commission retains final say over the approval and enforcement of the management plan and local county ordinances; enforcement actions may be brought in state court. The Gorge Act is not comparable to federal environmental laws and nothing in the Gorge Act indicates that the local ordinances otherwise have the force and effect of federal law. View "BNSF Railway Co. v. Friends of the Columbia River Gorge" on Justia Law

Ameren appeals an adverse judgment of the district court in a Clean Air Act (CAA) enforcement action brought by the United States, acting at the request of the EPA Administrator, arguing that the district court erroneously found it liable for not obtaining permits for projects at its Rush Island Energy Center and assessing liability under the applicable federal regulations. Ameren also contends that the district court ordered legally flawed injunctions at both Rush Island and at a different plant, Labadie Energy Center.The Eighth Circuit affirmed the district court's liability determination, holding that the district court did not err in holding that the Rush Island projects required permits through application of the actual-to-projected-actual applicability test under 40 C.F.R. 52.21(a)(2)(iv)(c), incorporated by reference in section 6.060(8)(A) of the Missouri state implementation plan (SIP). The court also held that the district court did not impermissibly shift the burden of proof to Ameren in proving the applicability of the demand-growth exclusion; the district court did not err in holding that to prove the applicability of the demand-growth exclusion, Ameren had to establish that demand on the unit increases; and the district court did not err in holding that no special standard of care evidence is required for the factfinder to be able to determine whether a reasonable power plant operator or owner would have expected the projects to cause a significant emissions increase. Furthermore, even assuming that the district court abused its discretion by admitting the expert testimony, any error would be harmless. However, the court reversed in part the remedial portion of the district court's order concerning the Labadie plant. Finally, the district court had jurisdiction to consider whether Ameren violated the express terms of its Title V permit. The court remanded for further proceedings. View "United States v. Ameren Missouri" on Justia Law

Objectors challenged the Watershed Conservation Authority's (WCA) certification of the environmental impact report (EIR) for a project in the Angeles National Forest (California Environmental Quality Act (CEQA), Pub. Resources Code, 21000). The Project comprises 198 acres along 2.5-miles of the East Fork of the San Gabriel River and will involve the development of new picnic areas, pedestrian trails, river access points and upgrades to existing facilities; improvements to roadways, parking, restrooms, and refuse disposal; restoration of riparian and upland vegetation communities; and implementation of a Forest Closure Order to prohibit overnight camping. The EIR addressed the usual range of potential impacts on the environment, on biological resources, cultural resources, water quality, air quality, and more.The trial court rejected claims that CEQA required WCA to consider additional project alternatives, and that the project was inconsistent with applicable land use plans, but issued a writ of mandate requiring WCA to “articulat[e] and substantiat[e] an adequate parking baseline” for the project, and to reassess the significance of the impacts resulting from the parking reduction. The court later awarded plaintiff attorney fees. The court of appeal reversed as to the parking issue and attorneys’ fees. The trial court erred in its analysis of the parking issue and should have denied the petition in its entirety. View "Save our Access San Gabriel Mountains v. Watershed Conservation Authority" on Justia Law

Racer, which was created and funded to clean up polluted locations connected to the former General Motors Corporation during that company's bankruptcy, appealed the district court's dismissal of their federal claims for violations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and related state law claims. Racer alleges cost and recovery and contribution claims under CERCLA sections 107 and 113 against dozens of defendants, which RACER alleges contributed to pollution at one of the New York sites it has been tasked with cleaning up.The Second Circuit concluded that the district court was correct to require RACER Trust to substitute its trustee as plaintiff, because the trust lacks capacity to sue. On the merits, the court held that the district court erred in dismissing RACER's complaint at this early stage. In this case, RACER's section 107 claim is ripe because it is based on costs RACER has already incurred for which it may not receive repayment through the EPA investigation, and because further delay in adjudicating the claim would cause RACER hardship. Furthermore, the district court erred in dismissing RACER's section 113 claim where, to the extent that the district court concluded that it too was prudentially unripe, the court disagreed for the same reasons that apply to the section 107 claim. To the extent the district court's dismissal rested on other grounds, the court concluded that the district court failed to adequately explain its reasoning and the court remanded for further analysis.The court declined to address the other issues raised by the parties, which should be addressed by the district court in the first instance. Accordingly, the court vacated and remanded the district court's dismissal of RACER's CERCLA claims, and vacated and remanded the district court's dismissal of RACER's state law claims so that the district court may reconsider its ruling. View "Revitalizing Auto Communities Environmental Response Trust v. National Grid USA" on Justia Law

The County appeals from a judgment and issuance of a peremptory writ of mandate in a proceeding under the California Environmental Quality Act (CEQA).In the published portion of the opinion, the Court of Appeal addressed the exhaustion of administrative remedies and the interpretation of the existing facilities exemption. The court concluded that the issue exhaustion requirement does not apply to challenges to the exemptions because the county did not provide adequate notice that CEQA exemptions would be considered at the public hearing held by its Board of Supervisors. Consequently, the county did not provide an opportunity for members of the public to raise objections to its reliance on those exemptions. The court resolved the ambiguity by interpreting the word "facilities" to exclude unlined landfills and therefore concluded that the county misinterpreted the Guidelines and violated CEQA when it concluded the existing facilities exemption applied to the project. The court affirmed the judgment. View "Los Angeles Department of Water and Power v. County of Inyo" on Justia Law

In 1937-2006, Johnson operated a Goshen, Indiana manufacturing plant that used chlorinated volatile organic compounds in a degreasing process. Some of the chemicals reached the groundwater. TCE, a carcinogen, is part of the breakdown process. Johnson, under the supervision of Indiana’s Department of Environmental Management, began cleanup while the plant was still operating, ensuring that houses using wells were connected to the city’s water mains, pumping and treating groundwater, and determining that the municipal water supply did not come from the contaminated plume. TCE did appear in the air above the plume, so houses were treated to prevent the gas from entering.Plaintiffs sued under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6972(a), The Seventh Circuit affirmed summary judgment in favor of Johnson, finding that Johnson was not in violation of any permit, standard, regulation, condition, prohibition, or order. The risk from the TCE is currently neither imminent nor substantial. View "Schmucker v. Johnson Controls, Inc." on Justia Law

The Sacketts purchased a soggy residential lot near Idaho’s Priest Lake in 2004, planning to build a home. Shortly after the Sacketts began placing sand and gravel fill on the lot, they received an Environmental Protection Agency (EPA) administrative compliance order, indicating that the property contained wetlands subject to protection under the Clean Water Act (CWA), 33 U.S.C. 1251(a), and that the Sacketts had to remove the fill and restore the property to its natural state.The Sacketts sued EPA in 2008, challenging the agency’s jurisdiction over their property. During this appeal, EPA withdrew its compliance order. The Ninth Circuit affirmed summary judgment in EPA’s favor. EPA’s withdrawal of the order did not moot the case. EPA’s stated intention not to enforce the order or issue a similar order in the future did not bind the agency. EPA could potentially change positions under new leadership. The court upheld the district court’s refusal to strike from the record a 2008 Memo by an EPA wetlands ecologist, containing observations and photographs from his visit to the property. The court applied the “significant nexus” analysis for determining when wetlands are regulated under the CWA. The record plainly supported EPA’s conclusion that the wetlands on the property were adjacent to a jurisdictional tributary and that, together with a similarly situated wetlands complex, they had a significant nexus to Priest Lake, a traditional navigable water, such that the property was regulable under the CWA. View "Sackett v. United States Environmental Protection Agency" on Justia Law

The FCC regulates facilities and devices that transmit radio waves and microwaves, including cell phones and facilities for radio, TV, and cell phone communications, 47 U.S.C. 302a(a). Radio waves and microwaves are electromagnetic energy, “radiofrequency” that move through space, as “RF radiation.” RF radiation at sufficiently high levels can heat human body tissue, resulting in “thermal” effects. Exposure to lower levels of RF radiation might also cause other biological effects.The National Environmental Policy Act (NEPA) requires federal agencies to account for the environmental effects of their proposed actions; a “major Federal action” requires an environmental impact statement, 42 U.S.C. 4332(C). If it is unclear whether a proposed action will “significantly affect[] the quality of the human environment,” the agency may prepare a limited environmental assessment. An agency may also use “categorical exclusions.” Pursuant to NEPA, the FCC has guidelines for human exposure to RF radiation, last updated in 1996. In 2013, the FCC issued a notice of inquiry regarding the adequacy of its guidelines and sought comments on five issues in response to changes in the ubiquity of wireless devices and in scientific standards and research. In 2019, the FCC issued a final order, declining to undertake any of the changes contemplated in the notice of inquiry.The D.C. Circuit remanded. The FCC failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer. View "Environmental Health Trust v. Federal Communications Commission" on Justia Law