Articles Posted in Environmental

Lockheed Martin Corporation, one of the largest defense contractors in the United States, operated three California facilities that manufactured solid-propellant rockets for the United States Department of Defense pursuant to contracts subject to the Federal Acquisition Regulations. Substantial quantities of hazardous substances were released by the facilities over the years which resulted in extensive environmental contamination, especially groundwater pollution. In 2008, Lockheed filed a CERCLA Section 107 cost recovery lawsuit against the United States, seeking the recovery of its past and future costs to remediate these sites. The lawsuit was filed several years after the company began remediation activities at these sites. Both Lockheed and the United States have conceded that they are potentially responsible parties at these sites. The United States in turn, filed a CERCLA contribution action against Lockheed, and this long and costly litigation resulted, which the U.S. Court of Appeals for the DC Circuit may have brought to an end. The case is Lockheed Martin Corporation v. U.S., decided August 19, 2016. Continue Reading ›

In Center for Biological Diversity, et al., v. Bureau of Land Management, the U.S. Court of Appeals for the Ninth Circuit held that the Bureau of Land Management (BLM) did not violate the Endangered Species Act (ESA) when its analysis of plans to expand access for off-road vehicles in the Imperial Sand Dunes Special Recreation Area (located in California) did not include a Biological Opinion with an “Incidental Take Statement” for the species of plant known as the Peirson’s milkvetch that is categorized as a “threatened species” under the ESA. Construing Sections 7 and 9 of the ESA, the Ninth Circuit agreed with BLM’s argument that Incidental Take Statements are reserved solely for fish and wildlife, and not plant species. When these sections of the law are read together, the Ninth Circuit concluded the ESA prohibits the taking of fish and wildlife only; therefore, the law does not require that the Biological Opinion contain an Incidental Take Statement for endangered plants. The remaining challenges were analyzed by the Ninth Circuit under the “arbitrary and capricious” rubric of the Administrative Procedures Act (APA), and were similarly rejected.

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An earlier case, decided by the U.S. Court of Appeals for the Sixth Circuit on June 3, 2016, is noteworthy because it resulted in an opinion affirming the government’s use of the criminal restitution laws to require a defendant to pay EPA $10.4 million in restitution for EPA’s cleanup efforts. The case is U.S. v. Sawyer.

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On August 11, the U.S. Court of Appeals for the Fifth Circuit issued an opinion rejecting the ExxonMobil Pipeline Company’s request for a stay pending appeal of a Compliance Order issued by the Pipeline and Hazardous Materials Safety Administration (PHMSA) of the Department of Transportation. The case is ExxonMobil Pipeline Company v. U.S. Department of Transportation, et al. The Court of Appeals, applying its standard criteria for evaluating such stays requests, held that the pipeline has not established that it can prevail on the merits, and otherwise seems to express serious misgivings about ExxonMobil’s line of defense at this time. In any case, the parties have been ordered to follow an expedited briefing schedule.

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The U.S. Court of Appeals for the Sixth Circuit has decided a new federalism case. In State of Tennessee, et al., v. Federal Communications Commission, decided on August 10, 2016, the Court of Appeals held that Section 706 of the Telecommunications Act of  1996 does not authorize the Federal Communications Commission (FCC), acting as a federal agency, to preempt laws enacted by the legislatures of Tennessee and North Carolina to confine municipalities engaged in telecommunications services (by providing internet service) to their current territorial boundaries. This decision is important because it helps to define federal agencies’ authority to act.

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On August 8, the U.S. Court of Appeals for the Seventh Circuit, in a decision affirming the final energy efficiency regulations issued by the Department of Energy (DOE) for commercial refrigeration equipment, held that DOE’s use of a measure of carbon emissions known as the “Social Cost of Carbon” was proper under the law; that the Department was authorized to consider such environmental factors in its standards. The case is Zero Zone, Inc., et al., v. US Department of Energy.

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On August 8, the U.S. Court of Appeals for the Third Circuit released an opinion rejecting several challenges to environmental permits and authorizations granted by environmental regulatory agencies in New Jersey and Pennsylvania. The consolidated cases are Delaware Riverkeeper Network, et al., v. Secretary Pennsylvania Department of Environmental Protection and New Jersey Conservation Foundation, et al, v. New Jersey Department of Environment of Environmental Protection, et al. At the outset, however, the Court of Appeals considered, and rejected, the arguments the states made that the Court of Appeals was without jurisdiction to review these petitions, particularly concerning those state actions assessing the water quality impacts of this pipeline expansion under Section 401 of the Clean Water Act (CWA).

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