Justia Environmental Law Opinion Summaries

In the 1950s, a Watertown building began manufacturing operations, using PCBs. Congress banned the manufacture of PCBs in 1979. In 2004, the plant closed. In 2010, SPX commissioned an environmental study and confirmed that PCBs permeated the property. SPX's proposed remediation plan was approved by the EPA. SPX subsequently decided to demolish the building. In 2014, SPX notified the EPA of its demolition plans and its intent to complete a “self-implementing on-site cleanup” under the implementing regulation for the Toxic Substances Control Act. The contractors broke ground before EPA approval.The Liebhart residential properties adjoin the facility. The Liebharts claim that no dust-suppression methods were used. After the demolition work ended, the Wisconsin Department of Natural Resources (DNR) ordered SPX to take soil samples, which indicated that PCBs were present on the Liebharts’ properties. Many samples exceeded the Wisconsin law residential standard. SPX submitted proposed remediation plans.The Liebharts sued SPX and its contractors under the Toxic Substances Control Act, 15 U.S.C. 2601, and the Resource Conservation and Recovery Act, 42 U.S.C. 6901. They argued that compliance with DNR guidance was not enough; the remediation needed to comply with the U.S. EPA’s “PCB Spill Cleanup Policy.”The district court granted the defendants summary judgment, refusing to issue an injunction. The DNR authorized and began to supervise the clean-up. The Seventh Circuit affirmed. Although there are colorable arguments that the DNR’s plan is not ideal, more is required to find that a court abused its discretion by withholding equitable relief. The Liebharts have not established substantive inadequacies in the state plan or irregularities in the DNR’s enforcement. View "Liebhart v. SPX Corporation" on Justia Law

The Ordot Dump was constructed on Guam by the Navy in the 1940s. Both the federal government and Guam allegedly deposited waste at Ordot. A 2004 consent decree between the EPA and Guam resolved litigation concerning Clean Water Act violations.About 13 years later, Guam sued the U.S. under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601. A section 107(a) action sought recovery of the costs of a “removal or remedial action” from the government based on its ownership or operation of the site at the time of the disposal of hazardous substances. A section 113(f) action sought "contribution," alleging that Guam “has resolved its liability to the United States…for some or all of a response action or for some or all of the costs of such action in [a] settlement." The D. C. Circuit held that cost recovery was not available if a party could have brought a contribution action and found the contribution claim untimely under a three-year limitations period in light of the 2004 settlement.A unanimous Supreme Court reversed. A settlement of environmental liabilities must resolve a CERCLA-specific liability to give rise to a section 113(f)(3)(B) contribution action. That remedial measures under different environmental statutes might functionally overlap with a CERCLA response action does not justify reinterpreting section 113(f)(3)(B)’s phrase “resolved its liability . . . for some or all of a response action” to instead mean “settled an environmental liability that might have been actionable under CERCLA.” A party may seek CERCLA contribution only after settling CERCLA-specific claims, as opposed to resolving environmental liability under another law. View "Guam v. United States" on Justia Law

Lakeshore Camping, Gary Medler, and Shorewood Association petitioned for contested case hearings before an administrative-law judge (ALJ), to challenge permits and a special exception granted by the Michigan Department of Environmental Quality (now the Michigan Department of Environment, Great Lakes, and Energy (EGLE)) to Dune Ridge SA LP. In February 2014, Dune Ridge, a real estate developer, had purchased a 130-acre plot of land along the shore of Lake Michigan located in a critical dune area and therefore was subject to certain regulations under the sand dunes protection and management act (SDPMA). EGLE issued the requisite permits and special exceptions needed for development of the property to Dune Ridge, and in October 2014, Lakeshore Camping, Medler, and Shorewood filed their petitions under MCL 324.35305(1). Around September 2015, other individuals moved to intervene in the case as aggrieved adjacent property owners. The ALJ also allowed Lakeshore Group, an unincorporated nonprofit association, to intervene after determining that it had “representational standing” through Charles Zolper, one of its members. The ALJ denied intervention to some of these parties and ultimately dismissed the matter, concluding that the remaining petitioners and intervenors lacked standing. Lakeshore Camping and other petitioners were eventually dismissed from the case, leaving Jane Underwood, Zolper, and Lakeshore Group as the sole remaining petitioners. Dune Ridge then moved for partial summary disposition, seeking to dismiss Underwood because she no longer owned property immediately adjacent to Dune Ridge’s property. In July 2016, the ALJ granted the motion. In September 2016, Dune Ridge sold 15 acres of its property, including the land immediately adjacent to Zolper’s property, to Vine Street Cottages, LLC. Dune Ridge then moved for summary disposition as to Zolper, and the ALJ dismissed Zolper and Lakeshore Group, finding that they no longer had standing because Zolper was no longer an immediately adjacent property owner. Underwood, Zolper, Lakeshore Group, and others appealed the ALJ’s decision to the circuit court. The issue this case presented for the Michigan Supreme Court’s review centered on whether the dismissed petitioners lost their eligibility for a contested hearing based on the facts presented. To this, the Supreme Court answered “no:” because the statute provides no means to deprive an eligible petitioner of a contested hearing, petitioners were entitled to a contested case hearing. Judgment was reversed and remanded to the administrative tribunal for a formal contested case hearing. View "Lakeshore Group v. Dept. of Enviro. Quality" on Justia Law

The California Water Resources Control Board (Board) promulgated a regulation setting the drinking water standard for TCP in 2017. Kern County Taxpayers Association and California Manufacturers and Technology Association (Association) challenged the regulation by petition for writ of ordinary mandate. The trial court denied the petition. The Association appealed, arguing the Board failed to comply with the Act’s requirement that new drinking water standards be “economically feasible.” The Association also argued the Board failed to comply with the economic impact assessment requirements of the Administrative Procedures Act. The Court of Appeal rejected both contentions and affirmed. View "Cal. Manufacturers & Tech. etc. v. State Water Resources Control Bd." on Justia Law

The Ninth Circuit reversed the district court's grant of summary judgment for the FWS in an action brought by Friends of Animals, challenging FWS's rule, 50 C.F.R. 424.14(b), which required that affected states receive 30-day notice of an intent to file a petition to list an endangered species. Friends alleges that the FWS used the "pre-file notice rule" to improperly reject Friends' petition to list the Pryor Mountain wild horse as a threatened or endangered distinct population segment, and argues that the rule revision violates the Endangered Species Act's (ESA) requirements for review of petitions and is inconsistent with the Administrative Procedure Act (APA).The panel concluded that the pre-file notice rule is inconsistent with the statutory scheme of the ESA and thus does not survive the second step of the Chevron test. The panel explained that the FWS used the pre-file notice rule to create a procedural hurdle to petitioners that does not comport with the ESA. In this case, the FWS used the pre-file notice rule to consider a petition that was properly submitted, complied with the substantive requirements in all other respects, and was otherwise entitled to a 90-day finding, while relying on an unreasonable justification that does not accord with the aims of the ESA. Therefore, FWS's denial of the petition was arbitrary and in excess of its statutory jurisdiction. Accordingly, the court remanded to the district court to enter summary judgment in favor of Friends. View "Friends of Animals v. Haaland" on Justia Law

The Ninth Circuit granted a petition for review challenging the EPA's Final 2019 Rule, which was a response to this court's 2017 Writ of Mandamus directing the EPA to respond to the need for updated lead-based paint hazard standards. Petitioners contend that the 2019 Rule violated statutory provisions of the Residential Lead-Based Paint Hazardous Reduction Act (PHA) that are codified in Title IV of the Toxic Substances Control Act (TSCA), as well as rulings of this court in the Writ.The panel concluded that the current dust-lead hazard standards, lead-based paint definition, and soil-lead hazard standards do not identify all levels of lead that lead to adverse human health effects and therefore violate the TSCA. Furthermore, the EPA has continually refused to update the lead-based paint definition on the ground that it lacks sufficient information. The panel concluded that its failure to explain why such lack of data has persisted for more than a decade, in the face of mounting evidence of lead-based paint dangers, is arbitrary and capricious. The panel explained that the failure to update the soil-lead hazard standards is unjustified in the face of the now undisputed evidence that there is no safe level of lead exposure. Because the dust-lead clearance levels concern the lead content of dust after abatement of dust-lead hazards, the dust-lead hazard standards (DLHS) and the clearance levels are interrelated. Consistent with its holding that the EPA must reconsider the DLHS, the panel directed the EPA to reconsider the dust-lead clearance levels as well in the same proceeding. View "A Community Voice v. United States Environmental Protection Agency" on Justia Law

The First Circuit affirmed the judgment of the district court denying a preliminary injunction barring construction of Segment 1 of a planned five-segment electric transmission power corridor in Maine, holding that Plaintiffs failed to show a likelihood of success on the merits.The planned transmission power corridor was part of a larger project that would run from Quebec, Canada to Massachusetts. After its performance of an environmental assessment, the Army Corps of Engineers issued a permit authorizing Central Maine Power, a private company, to take three actions in Segment 1. Plaintiffs, environmental organizations, sought preliminary injunctive relief. The district court rejected Plaintiffs' challenges and denied relief. Plaintiffs then brought this interlocutory appeal and filed an emergency motion for injunction pending appeal. The First Circuit affirmed, holding that Plaintiffs' challenges did not demonstrate a likelihood of success on the merits. View "Sierra Club v. United States Department of Army Corps of Engineers" on Justia Law

Real party in interest Poseidon Resources (Surfside) LLC (Poseidon) planned to establish a desalination plant at a site in Huntington Beach, California. In 2010, nonparty City of Huntington Beach (Huntington Beach), serving as lead agency performing environmental review of the proposed project pursuant to the California Environmental Quality Act (CEQA), certified a subsequent environmental impact report (the 2010 subsequent EIR).However, the project did not move forward. Following changes in circumstances (including significant regulatory changes), Poseidon proposed modifications to the project, which it addressed in a proposed lease modification with defendant California’s State Lands Commission (Lands Commission). The Lands Commission determined that it needed to prepare a supplemental EIR to supplement Huntington Beach’s 2010 subsequent EIR. In 2017, the Lands Commission certified its final supplemental EIR. Plaintiffs petitioned for mandamus relief, claiming, among other things, that the Lands Commission failed to comply with the requirements of CEQA. The trial court denied the petition. On appeal, Plaintiffs asserted the Lands Commission prejudicially abused its discretion; the Lands Commission and Poseidon argued that the true issues on appeal were whether the Lands Commission properly proceeded with supplemental review and the results of that review, factual matters subject to substantial evidence review. The Court of Appeal concluded the Lands Commission properly elected to prepare a supplemental EIR, did not err in refusing to assume lead agency status, and did not unlawfully piecemeal or segment environmental review. View "California Coastkeeper Alliance v. State Lands Commission" on Justia Law

In the spring of 2015, a severe three-day storm deluged an eastern Colorado area with over six inches of rain. Two inches of water fell within thirty minutes on the first day, “a once-in-a-half-century occurrence.” During the storm, a mixture of wastewater and rainwater overflowed from one of the wastewater containment ponds in a cattle feedlot operated by 5 Star Feedlot, Inc. (“5 Star”). That water crossed several miles of land and ultimately found its way to the South Fork of the Republican River, killing an estimated 15,000 fish and giving rise to this litigation. Pursuant to section 33-6-110(1), C.R.S. (2020), the State initiated a civil action against 5 Star seeking to recover the value of the deceased fish based on 5 Star’s alleged violation of three predicate statutory provisions (“taking statutory provisions”) which, with some exceptions not pertinent here, made it unlawful for any person to “take” (i.e., to kill or otherwise acquire possession of or control over) certain wildlife. The parties filed cross-motions for summary judgment on the issue of liability. The district court denied 5 Star’s motion, granted the State’s motion, and, following a bench trial on damages, ordered 5 Star to pay the State $625,755. 5 Star then appealed. The court of appeals reversed, holding that the taking statutory provisions required the State to prove that 5 Star acted knowingly or, at minimum, performed an unlawful voluntary act. To this, the Colorado Supreme Court concurred, finding the district court erred both in entering summary judgment against 5 Star and in denying 5 Star’s cross- motion. “Since the State failed to formally allege, never mind present proof, that 5 Star’s lawful, years-long operation of wastewater containment ponds killed or otherwise acquired possession of or control over the fish, it could not satisfy the voluntary act or actus reus requirement of the taking statutory provisions.” View "Dep't of Nat. Res. v. 5 Star Feedlot, Inc." on Justia Law

Plaintiffs, cattle ranchers, filed suit in federal district court, claiming that the Service's decision to apply the 1995 Riparian Mitigation Measures to the Dry Cottonwood Allotment, instead of the allowable use levels in the 2009 Forest Plan, violated the National Forest Management Act and the Administrative Procedure Act.The Ninth Circuit reversed the district court's grant of partial summary judgment to plaintiffs and remanded with instructions to grant summary judgment to the Service. The panel concluded that the Service lawfully applied a particular set of standards for protecting stream habitats from the effects of cattle grazing, the 1995 Riparian Mitigation Measures, to plaintiffs' grazing permits. The panel also concluded that plaintiffs were not entitled to attorney's fees under the Equal Access to Justice Act for their administrative appeal. View "2-Bar Ranch Limited Partnership v. United States Forest Service" on Justia Law