Affirming the district court, the U.S. Court of Appeals for the Ninth Circuit rejected 
claims that the environmental impact statement (EIS) adopted by the Tahoe Regional Planning Agency supporting the Regional Plan Update (RPU) failed to comply with the requirements of the Regional Planning Compact between California and Nevada (Compact). The case is Sierra Club, et al., v. Tahoe Regional Planning Agency, decided on November 2, 2016.
A group of environmental organizations, headed by the Sierra Club, filed a Clean Water Act (CWA) citizen’s lawsuit against the BNSF Railway Company, alleging that the railroad, the only transporter of coal in Washington, illegally discharges coal and coal dust into the waterways of the State of Washington by virtually every one of its shipments of coal through the state. Motions for summary judgment were filed by both the plaintiffs and BNSF Railway. On October 25, the U.S. District Court for the Western District of Washington, seated in Seattle, in a significant ruling, denied both motions. The case is Sierra Club, et al., v. BNSF Railway Company.
The plaintiffs alleged that each and every train operated by BNSF Railway discharges coal pollutants into the waters of the United States without a CWA permit. The coal is allegedly discharged through holes in the bottoms and sides of the rail cars or emitted from the open tops of the rail cars and the train. BNSF Railway has denied these claims, and also argues that the CWA, in this instance, is preempted by the Interstate Commerce Commission Termination Act, 49 U.S.C. §§ 10101 et seq. (ICCTA).
With respect to BNSF’s argument that the plaintiffs do not have standing because they cannot use a limited number of waterbodies in a representative capacity to establish standing for all waterbodies in the State of Washington, the District Court noted that, at this stage, it was bound by a Ninth Circuit precedent, Alaska Center for the Environment, et al., v. Browner. The Ninth Circuit, in the 1994 Browner decision, held that a plaintiff seeking state-wide environmental relief was not required to demonstrate harm over the entire state, but was only required to establish that a representative number of areas were adversely affected by the Environmental Protection Agency’s (EPA) inaction, and that “for CWA regulatory purposes, all waters of the state were interrelated.”
The plaintiffs urged the District Court to find that there is no dispute that BNSF is liable for discharging coal into Washington’s waterways without a permit in violation of the CWA; and suggested that BNSF may have violated the CWA over 12 million times in the years 2012 through 2015 based on the number of trips that the BNSF railcars made during this period. The District Court was not convinced that the plaintiffs had demonstrated that BNSF operations were in violation of the CWA because it had not been established that “point source” discharges were involved. The defendant argued that coal emissions to land, coal emissions from land to water, and coal dust emissions are not point source discharges. On the one hand, the District Court agreed with this argument, holding that the plaintiffs “have not provided evidence that there was a discrete conveyance of coal into the water from coal that is deposited onto the land adjacent to the tracks.” Also, coal dust deposited in navigable waters from BNSF trains “is not a point source discharge unless there is a discrete conveyance.” On the other hand, the District Court concluded that direct discharges of coal and coal particles form the trains that travel adjacent to or above the waters at issue are point source discharges. Consequently, while some discharges are evidently violations of the CWA, the District Court declined to find the railroad liable for any CWA violations at this time because there are disputes of material fact that must be resolved at trial.
The District Court also declined to rule on BNSF’s ICCTA preemption argument at this time.
On October 24, the U.S. Court of Appeals for the Ninth Circuit reversed the district court
and upheld the determination of the National Marine Fisheries Service (NMFS). The NMFS concluded that two distinct population species of the Pacific bearded seal subspecies –located in the shallow waters of the Artic—were likely to become endangered within the foreseeable future. Climate projections that the loss of sea ice over those shallow waters foreshadow that this subspecies will become endangered under the provisions of Endangered Species Act (ESA) by the year 2095. The case is Alaska Oil and Gas Association, et al., v. Pritzker. Continue Reading ›
On October 17, the U.S. District Court for the Northern District of West Virginia 
granted summary judgment to Murray Energy Corporation, which sued the Environmental Protection Agency (EPA) seeking declaratory and injunctive relief against EPA because it has persistently failed to perform a nondiscretionary duty under Section 321(a) of the Clean Air Act (CAA) (42 U.S.C. § 7621(a)), to “conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement” of the CAA with regard to the effect EPA’s actions are having on the coal industry and “the hundreds of thousands of people it directly or indirectly employs.” The case is Murray Energy Corporation, et al., v. McCarthy. Continue Reading ›
Our latest Environmental Case Law Update highlights a number of significant environmental and administrative law decisions reported in the period of April-September 2106. We hope you find this information to be useful and informative.
Photo: Ian Sane, Silver Creek, Taken November 3, 2012 – Creative Commons
A few weeks ago, we noted that the U.S. District Court for the District of Columbia, in a decision reported on September 9, 2016, denied a motion for a preliminary injunction filed by the Standing Rock Sioux Reservation against the construction of the Dakota Access Pipeline through the lands of the Tribe. That case is Standing Rock Sioux Tribe, et al., v. U.S. Army Corps of Engineers, et al. The Tribe alleged that the Corps of Engineers, in its review of the permitting requirements triggered by the project, had failed to engage in the consultative process requirements of Section 106 of the National Historic Preservation Act (NHPA), but that District Court denied relief, holding that the Tribe largely refused to engage in such consultation. On September 9, 2016, the Tribe filed an emergency appeal with the U.S. Court of Appeals for the District of Columbia, and the DC Circuit responded by issuing an order to the pipeline to freeze work on the pipeline within 20 miles of Lake Oahe. This narrow work freeze, described as an administrative injunction, was intended to give the Court of Appeals sufficient opportunity to considered the Tribe’s motion for an injunction pending appeal.
In a decision released on October 6, 2016, the Court of Appeals for the First District of Texas, sitting in Houston, unanimously affirmed the jury’s verdict that International Paper Company (IP) was not liable for large civil penalties as a result of the discharge of dioxin-contaminated paper mill waste into the San Jacinto River. The case is Harris County and Texas Commission on Environmental Quality v. International Paper Company. This is an important case with respect to the application of the Texas Solid Waste Disposal Act. Continue Reading ›
Recently, our colleague Norman Carlin published his client alert California Supreme Court Sets New Deferential Standard for Supplemental CEQA Review. The Alert discusses the California Supreme Court’s rejection of the “new project” test for determining whether a changed project remains similar enough to the original project for supplemental California Environmental Quality Act (CEQA) review to be appropriate. The Alert discusses the Court’s creation of a different threshold inquiry for lead agencies under such circumstances. The case is Friends of the College of San Mateo Gardens v. San Mateo Community College District.
On September 13, the U.S. District Court for the District of North Dakota granted a Motion for a Temporary 
Restraining Order in the matter of Paradigm Energy Partners, LLC v. Fox, et al., prohibiting the defendants from interfering with the Paradigm’s construction of two pipelines (an oil and a natural gas pipeline) in McKenzie and Mountrail Counties, North Dakota.
On September 9, the U.S. District Court for the District of Columbia denied a motion for a Preliminary Injunction against the U.S. Army Corps of Engineers to stop the construction of the Dakota Access Pipeline, a pipeline that will run within one-half mile of the Standing Rock Sioux Reservation, located in North and South Dakota. The case is Standing Rock Sioux Tribe, et al., v. U.S. Army Corps of Engineers, et al., and an emergency appeal has been filed with the U.S. Court of Appeals for the District of Columbia Circuit. The Plaintiffs allege that the Corps failed to engage in substantive consultations with the Tribe as required by the National Historic Preservation Act (NHPA). However, the District Court, in a long and comprehensive opinion, held that the Corps “has likely complied with the NHPA” and that the Tribe has not demonstrated that a preliminary injunction is warranted. Continue Reading ›
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