Articles Posted in Environmental

On December 8, the U.S. Court of Appeals for the Tenth Circuit decided the case of United States v. Board of County Commissioners of Otero County, New Mexico. The Tenth Circuit held that a New Mexico statute and resolution adopted by the Otero County Board of County Commissioners (Board) which purported to authorize the Board to take unilateral steps to mitigate the fire dangers posed by very dry conditions in the Lincoln National Forest were preempted by federal law. The Tenth Circuit, affirming the lower court, ruled that the Property Clause of the U.S. Constitution authorized the federal government to promulgate rules governing the use of the national forests and, insofar as local laws intended to abate these dangers conflicted with federal law, they were preempted.

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On December 6, the U.S. Court of Appeals for the Ninth Circuit, in the case of Japanese Village, LLC v. Federal Transit Administration, et al., affirmed the district court’s grant of summary judgement to the government defendants following a painstaking review of the National Environmental Policy Act (NEPA) arguments lodged by Japanese Village, LLC and Today’s IV, Inc. dba Westin Bonaventure Hotel (Bonaventure) against the construction of the Regional Connector Transit Corridor Project, a 1.9-mile light rail extension line in downtown Los Angeles.

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Today, our colleagues Kevin Ashe and Rebecca Lee published an alert on the Environmental Protection Agency’s recent listing of certain chemicals as subject to review for risks to human health and to the environment.  EPA’s actions follow recent amendments to the Toxic Substances Control Act requiring it to timely complete risk assessments for chemicals manufacture, distributed and imported to the U.S. They encourage companies with U.S. operations to consider the implications if they use chemicals that have been list or may be listed by the EPA. The alert is titled Toxic Substances Control Act Overhaul.

On November 23, 2016, the U.S. Court of Appeals for the Ninth Circuit issued a unanimous ruling that the Surface Transportation Board has exclusive jurisdiction over “railroad repair work done at the direction of a federally regulated rail carrier but performed by a contractor rather than the carrier itself.”  The case is Oregon Scenic Coast Railway, LLC v. State of Oregon Department of State Lands. Continue Reading ›

On November 18, the U.S. Court of Appeals for the Ninth Circuit issued three unanimous decisions affirming the U.S. District Court for the District of Hawaii’s rulings that three local county ordinances—enacted by the counties of Maui, Kauai and Hawaii—are preempted by the laws of the State of Hawaii or the federal Plant Protection Act (PPA), 7 U.S.C. § 7756(b). The ordinances purported to regulate pesticides and genetically engineered plants or even banning the cultivation and testing of genetically-engineered plants. The published opinions are Atay, et al., v. County of Maui, et al., and Syngenta Seeds, Inc., et al., v. County of Kauai. The unpublished opinion is Hawai’i Papaya Industry Assoc., et al., v. County of Hawaii.

The Maui County ordinance was the result of a citizens’ initiative, and the Kauai ordinance was enacted in the regular course of county business. In the Syngenta Seeds case, the Ninth Circuit ruled that the “field preemption” test devised by the Hawaii Supreme Court required the rejection of Kauai County ordinance. In the Atay case, the Ninth Circuit concluded that the provisions of the Maui County ordinance were preempted by both the PPA and impliedly by the laws of the State of Hawaii.

In the third case, the Ninth Circuit held that a recently-enacted ordinance of the County of Hawaii which bans the “open air testing of genetically engineered organisms of any kind” and “open air cultivation, propagation, development or testing of genetically engineered crops of plants” was preempted by federal and state law.

On November 16, the U.S. Court of Appeals for the Ninth Circuit decided the case of State of Missouri ex rel. Chris Koster, et al., v. Harris, in which it largely affirmed the lower court’s decision that the States of Missouri, Nebraska, Oklahoma, Alabama, Kentucky and Iowa lack standing to challenge the California laws and policies that mandate that no eggs can be sold in California that are the produced in states that do not adhere to California’s conditions under which chickens must be kept. One lesson to draw from this is that it’s very difficult to persuade the courts that the Commerce Clause always limits what the state legislatures can do. Continue Reading ›

On November 17, the U.S. Court of Appeals for the Sixth Circuit decided the case of Sherwood, et al. v. Tennessee Valley Authority.  The Court of Appeals reversed the lower court’s ruling that a complaint filed by many property owners that the Tennessee Valley Authority (TVA) violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 to 4370m–12 (2012) (NEPA) was now moot because TVA had filed assurances with the lower court that the policy had been suspended. Continue Reading ›

Environmental Protection Agency (EPA) recently released its “EJ 2020 Action Agenda.” EPA confirms that it will three basic goals:

1. Deepen the environmental justice (“EJ”) practice within EPA programs;
2. Work with it “partners” — other federal agencies and state and local governments — to advance EJ programs; and
3. Demonstrate progress in significant EJ challenges, namely, lead disparities, drinking water, air quality, and hazardous waste sites.

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On April 8, 2016, the Texas Court of Appeals, Third District, at Austin, issued an important decision interpreting the standard of review that applies to the judicial review of certain administrative enforcement orders issued by the Texas Commission on Environmental Quality (TCEQ). The case is TCEQ v. Exxon Mobil Corporation, et al., and involves the cleanup of the Voda Petroleum State Superfund Site (VPSSS).  The Court of Appeals held that the appropriate standard for the judicial review of the TCEQ’s order was the “preponderance of the evidence” test, where the TCEQ has the burden to prove the defendants are liable parties under the law. The TCEQ argued that the “substantial evidence” test was applicable. On October 31, 2016, following a motion for rehearing filed by the TCEQ, the Court of Appeals withdrew that opinion, and substituted a new opinion which essentially clarified the original ruling, and denied the TCEQ’s motion. Continue Reading ›