This is Part V of VII of a brief recap of some the significant environmental law and administrative cases decided in the past few months:
K. Tenth Circuit
1. Court of Appeals
In an important decision released on May 29, 2015, the U.S. Court of Appeals for the Tenth Circuit rejected the Sierra Club’s and other environmental organizations’ most recent objections to the permitting and construction of TransCanada’s Gulf Coast pipeline. The case is Sierra Club, Inc., et al., v. Bostick, et al. The U.S. Army Corps of Engineers issued letters verifying that the Corps of Engineers’ Nationwide Permit 12, authorized by the CWA, would cover the proposed pipeline. The pipeline has now been constructed and is delivering oil, and covers 485 miles and consists of 2000 water crossings necessitating the use of this permit, which “allows anyone to construct utility lines in U. S. waters ‘provided the activity does not result in the loss of greater than ½ acre of U. S. waters for each single and complete project.” The Court of Appeals noted that the project also required TransCanada to satisfy wetlands mitigation requirements. In challenging the validity of the Nationwide Permit and the verification letters, the plaintiffs argued that the Corps of Engineers violated both NEPA and the CWA.
With respect to NEPA, the Court of Appeals ruled that this argument had been waived, in particular the alleged risk of oil spills, because it has not been raised with the Corps of Engineers during the comment period that was set aside for the submission of such comments. With regard to the CWA, the plaintiffs argued that the Nationwide Permit issued to TransCanada violated the law by authorizing linear projects with substantial environmental impacts and deferring part of the minimal impacts determination to project-level personnel who would be involved in the pipeline project after the Corps of Engineers’ permitting initial authorization had been granted. However, the Court of Appeals held that the environmental groups did not show that the permit authorizes linear projects with more-than-minimal impacts, nor that the Corps of Engineers, allowing for Chevron deference, impermissibly construed the CWA by providing for a partial deferral of the minimal-impact analysis.
2. District Courts
Last November, the U.S. District Court for Utah ruled that the federal government does not have the constitutional authority to regulate the “taking” of the Utah prairie dog—a species located only in Utah—on non-federal land. The species has, however, been listed as an endangered species since 1973. The decision, People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, et al., has been appealed to the Tenth Circuit, and the Justice Department has now filed a very comprehensive brief in this matter; the Case No. is 14-4165.
L. Eleventh Court
1. Court of Appeals
On June 15, 2105, the U.S. Court of Appeals for the Eleventh Circuit affirmed the district court’s grant of summary judgment to the USDA in a controversy arising from the USDA’s implementation of the licensing scheme mandated the Animal Welfare Act, 7 U.S.C. §§ 2131 et seq. (AWA). The case is Animal Legal Defense Fund, et al., v. U.S. Department of Agriculture, et al. The USDA’s Animal and Plant Health Inspection Service licenses and enforces the USDA’s AWA regulatory program. The Miami Seaquarium is licensed by the USDA under the AWA, and the plaintiffs have filed repeated complaints with the USDA regarding the Seaquarium’s exhibition and treatment of “Lolita”, a 20 foot long, 7000 pound Orca whale. Lolita has been exhibited daily since September 1970, in a show entitled, “the Killer Whale and Dolphin Show”. Despite the complaints submitted by the plaintiffs about Lolita’s working and living conditions, which they alleged were violative of the USDA’s regulations, Seaquarium’s license was routinely renewed. The Court of Appeals, however, agreed with the USDA that the AWA says nothing about the renewal of a license or what procedures are required to ensure that renewals adhere to the policies of the AWA. Therefore, the USDA’s implementation of a license renewal process, which is almost solely made on an administrative basis, was reasonable and entitled to Chevron deference. Therefore, the Court of Appeals concluded by stating that “we cannot say the USDA violated the AWA by renewing Seaquarium’s license through its purely administrative scheme”.
In the case of GeorgiaCarry.Org v. the U.S. Army Corps of Engineers, decided June 9, 2015, the U.S. Court of Appeals for the Eleventh Circuit affirmed the decision of the lower court to deny a request for a preliminary injunction against the enforcement of the Corps of Engineers’ regulation that prohibits the possession of loaded firearms or ammunition at any of these projects (except in designated hunting and shooting areas) without the written permission of the district commander. The rule is located at 36 C.F.R. § 327.13. The plaintiffs sought a preliminary injunction on the grounds that the enforcement of this regulation violates their Second Amendment rights. The federal property in question is Allatoona Lake, a recreational site managed by the Corps of Engineers around the Allatoona Dam in Northwest Georgia. The district court held that this prohibition did not burden the plaintiffs’ Second Amendment rights as it did not regulate firearms possession within the home, and did not effectively eliminate their ability to bear arms outside the home. In affirming the district court, the Court of Appeals noted that the Corps of Engineers’ firearms regulation only applies to the Corps of Engineers’ property, and the plaintiffs can “freely exercise their right to bear arms whether within the home or on the streets without running afoul of this regulation”. Finally, the Court of Appeals notes that these proceedings only disposed of the request for a preliminary injunction, and does not address any additional issues that may present themselves when the matter of the request for a permanent injunction is litigated.
On March 23, 2015, the U.S. Court of Appeals for the Eleventh Circuit remanded recently-reissued Nationwide Permit 21 (NWP 21) to the Corps of Engineers for reconsideration by the Corps of Engineers’ of its initial environmental determination made pursuant to the CWA and NEPA. The case is Black Warrior Riverkeeper and Defenders of Wildlife v. U.S. Army Corps of Engineers.
The case involves an appeal from the district court’s grant of summary judgment to the Corps of Engineers in a lawsuit challenging the 2012 version of NWP 21, a general permit issued by the Corps of Engineers under its CWA authority to regulate the surface mining discharges of dredge or fill material into navigable waters. This permit has been used by the Corps of Engineers since 1982, and has been reissued several times over the years. The plaintiffs argued that the Corps of Engineers violated both the CWA and NEPA when it determined that NWP 21 would have a minimum impact upon the environment. The district court held that the plaintiffs had standing to prosecute this lawsuit, but their complaint was barred by the seldom-used equitable doctrine of laches and, on the merits, the district court agreed with the Corps of Engineers that its environmental determinations were neither arbitrary nor capricious. However, the Court of Appeals, while agreeing that the plaintiffs had standing, also held that the district court abused its discretion in holding that laches barred this lawsuit; the record disclosed no inexcusable delay in filing this lawsuit given the complex nature of the issues being litigated. In addition, the Court of Appeals held that the district court’s ruling on the merits must be set aside because, on the eve of oral argument before the Court of Appeals, the Corps of Engineers advised the litigants that it had underestimated the acreage of waters that could be affected by projects authorized by NWP 21. Accordingly, the case was remanded to the Corps of Engineers for reconsideration of its initial findings.
One member of the panel filed a partial dissent, observing that in light of these developments, NWP 21 should be vacated or suspended.
2. District Courts
The U.S. District Court for the Southern District of Georgia has ruled that Georgia’s narrative water quality standards were not incorporated into the Georgia NPDES permit issued to Rayonier, Inc. On March 31, 2015, the court decided the case of Altamaha Riverkeeper, Inc. v. Rayonier, Inc., et al. Rayonier, which has been granted an NPDES permit by the Georgia Environmental Protection Division, operates a pulp mill which discharges 50 to 60 millions of gallons of wastewater into the Altamaha River on a daily basis. Altamaha Riverkeeper filed a lawsuit against Rayonier, arguing that this discharge has a negative impact on the river, and that the discharge violates the state’s water quality standards pertaining to color, odor and turbidity. Rayonier’s defense was that the water quality standards were not incorporated into its permit, and the CWA’s “permit shield” provisions shields Rayonier from liability under the CWA. The district court agreed with Rayonier, and granted Rayonier’s motion for summary judgment on the CWA claims. The district court interpreted the permit in accordance with established principles of contractual interpretation, and its careful analysis of the permit language, led the district court to conclude that “as a matter of law, the permit does not incorporate Georgia’s water quality standards” as a condition of its NPDES permit.