Articles Posted in Environmental

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On July 23, 2018, the U.S. Court of Appeals for the Second Circuit decided the case of Cooling Water Intake Structure Coalition v. EPA. Environmental conservation groups and industry associations petitioned for review of a final rule promulgated by the U.S. Environmental Protection Agency (EPA) pursuant to section 316(b) of the Clean Water Act (CWA), establishing requirements for cooling water intake structures at existing facilities. Denying the petitions for review, the Court of Appeals summarized:

“Because we conclude, among other things, that both the Rule and the biological opinion are based on reasonable interpretations of the applicable statutes and sufficiently supported by the factual record, and because the EPA 3 gave adequate notice of its rulemaking, we DENY the petitions for review.”

This is a significant CWA and Endangered Species Act (ESA) decision involving the operation of major industrial facilities requiring the daily use of large amounts of water taken from adjacent bodies of water.

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On July 19, the U.S. District Court for the Southern District of New York decided the case of City of New York v. BP P.L.C., et al., granting the defendants’ motion to dismiss and dismissing the City of New York’s amended complaint. The amended complaint alleged three causes of action:  (1) public nuisance; (2) private nuisance; and (3) trespass, and sought compensatory damages and an equitable order ascertaining damages and granting an injunction to abates these injuries, which would not, however, take effect unless the defendants failed to pay court-determined damages.

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Unlike other Terms, only a handful of cases addressed administrative and environmental law issues in the U.S. Supreme Court’s 2017-2018 Term. However, the next Term of the Court promises to be more active in these areas.

  • On January 22, 2018, the Court issued a unanimous opinion in the Clean Water Act (CWA) case, Nat’l Assoc. of Mfrs. v. Dep’t of Defense, holding that the plain language of the CWA requires the appeal of the Environmental Protection Agency’s (EPA) redefinition of “waters of the United States” (WOTUS Rule) must be heard first in the federal district courts. Whereas all appeals of most EPA CWA effluent limitation rules must be heard in the federal Courts of Appeals, Congress chose not to do this with respect to this definitional rule.

The Court points out that reviews in the Courts of Appeals must take place within 120 days of the rule’s promulgation, but any review of a rule in the federal district court must take place within 6 years of the date the claim accrues.

The Sixth Circuit was without jurisdiction over this direct appeal.

The Court also notes (in Justice Sotomayor’s opinion) that the administrative actions regarding the WOTUS rule issued by the new administration did not moot this appeal.

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On July 10, the U.S. Court of Appeals for the D.C. Circuit decided another Federal Energy Regulatory Commission (FERC) case, Delaware Riverkeeper Network and Maya Van Rossum v. FERC. The plaintiffs levelled a broad US. Constitutional Due Process Clause challenge at the statutory mandate from Congress that FERC recover its costs from the industries it regulates. The plaintiffs argued that this provision “improperly incentivizes” FERC to grant more new natural gas pipeline applications to ensure itself of sufficient future funding. This argument was dismissed by both the U.S. District Court and the Court of Appeals.

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On July 6, the U.S. Court of Appeals for the D.C. Circuit decided the case of Sierra Club and Natural Resources Defense Council v. EPA. Senior Judge Sentelle, writing for a unanimous panel, mostly granted the environmental petitioners petition for review of an Environmental Protection Agency (EPA) Clean Air Act (CAA) rule, establishing National Emissions Standards for Hazardous Air Pollutants (NESHAP) hazardous air pollutant emissions limits for Brick and Structural Clay Products Manufacturing and Clay Ceramics Manufacturing. These rules were initially promulgated in 2003, only to be vacated later by the D.C. Circuit.

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Another important case was decided by U.S. Court of Appeals for the D.C. Circuit on July 6, American Rivers and Alabama Rivers Alliance v. FERC. The Alabama Power Company, whose application to re-license its electrical power generating facility serving Coosa River Basin in Alabama, GA, and TN was at issue, is an Intervenor in the case. In 2013, FERC granted Alabama Power a 30 year renewal license to operate this plant, consistent with some new conditions attached to the renewed license. This action was challenged before the FERC by these petitioners, but FERC denied their requests for reconsideration. They argued that FERC, in re-licensing this facility, violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The Court of Appeals , noting that the ecosystem was in a “fragile condition” after decades of power plant operations and development, agreed with the plaintiffs that the actions taken by FERC and as supported by a Biological Opinion of the U.S. Fish and Wildlife Service (Service), were in violation of these statutes. FERC’s licensing decision was vacated and the matter was remanded to FERC.

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On June 27, the U.S. Court of Appeals for the Seventh Circuit decided the case of Orchard Hill Building Co. v. U.S. Army Corps of Engineers. The Court of Appeals vacated the decision of the District Court granting the U.S. Army Corps of Engineers’ (Corps) motion for summary judgment dismissing the Orchard Hill Building Company’s (Orchard) complaint that the Corps’ jurisdictional determination erroneously found that the waters at issue were “jurisdictional waters” under the Clean Water Act (CWA) subject to the Corps’ jurisdiction. Acknowledging that the Corps and EPA had promulgated a new rule re-defining “waters of the United States” in 2015—which is now being challenged in the courts—the Court of Appeals noted that this case is controlled by the pre-2015 definition of “waters of the United States.” The Court of Appeals remanded the case to the Corps, directing it to determine if there was a significant nexus, as required.

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On June 28, the U.S. Court of Appeals for the Ninth Circuit decided the case of Center for Biological Diversity, et al., v. Export-Import Bank of the U.S., affirming the ruling of the District Court, which granted Export-Import Bank of the United States’ (Ex-Im Bank) summary judgement motion finding that, “as a threshold matter,” the plaintiff environmental groups lacked standing to pursue either of their National Historic Preservation Act (NHPA) or Endangered Species Act (ESA)] claims. On appeal, the Ninth Circuit held “that the action is not moot [but] affirm the district court on the question of standing.”

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On June 25, the Environmental Protection Agency (EPA) issued a Notice of Proposed Rulemaking (NPRM) (83 F.R. 29499 (June 25, 2018)) regarding Clean Water Act Hazardous Substances Spill Prevention.

“EPA has determined that the existing framework of regulatory requirements serves to prevent CWA HS discharges.”

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On June 22, the Texas Supreme Court decided an important environmental case, City of Laredo, TX v. Laredo Merchants Assoc. Without dissent, the Court held that the City of Laredo’s 2014 ordinance, enacted to create a “trash-free” city, was preempted by the Texas Health & Safety Code and, in particular, Section 361.0961(a)(1)). The “local antilitter ordinance prohibit[s] merchants from providing ‘single use’ plastic and paper bags to customers for point-of-sale purchases.”

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