Articles Posted in Environmental

In the case of Center for Biological Diversity, et. al v. U.S. Forest Service, the U.S. Court of Appeals for the Ninth Circuit, in an unpublished opinion released on January 12, 2016, reversed the lower court’s dismissal of a Resource Conservation and Recovery Act (RCRA) Citizens Suit filed against the U.S. Forest Service which alleged that the U.S. Forest Service violated the RCRA by failing to regulate the disposal of spent lead ammunition in a national forest. Reviewing the allegations in the complaint, the Court of Appeals held that the plaintiffs had established standing—their claims are “not wholly insubstantial or frivolous.” The Court of Appeals noted that the government could make the argument in the lower court that the U.S. Forest Service was not a “contributor” to the solid waste problem, something the RCRA Citizen Suit provision requires.

Photo:  ClickFlashPhotos / Nicki Varkevisser, Painty Legs – Creative Commons

The ability of churches and other religious institutions to engage in ordinary business activities can be unexpectedly and adversely affected by provisions in some state constitutions which can be interpreted to exclude them from having access to public funds and public resources based on nineteenth century constitutional amendments.  On January 15, 2016, the U.S. Supreme Court has agreed to hear an important case from Missouri, which should result in a definitive review of a long-time prohibition in the case of Trinity Lutheran Church v. Pauley.  The Court will review a decision of the U.S. Court of Appeals for the Eighth Circuit, which held that the Missouri state constitution which provides that “no money shall be taken from the public treasury, directly or indirectly, in aid of any church,” serves to disqualify a church from participating in a state program which makes state funds available to organizations to purchase recycled tires to resurface playgrounds. The dissenting judge on the Eighth Circuit panel observed that “school children playing on a safer rubber surface made from environmentally-friendly recycled tires has nothing to do with religion.”

Photo:  crabchick, Tyres at Sharpness – Creative Commons

On January 25, 2016, the U.S. Supreme Court, in FERC v. Electric Power Supply Association, et al., a 6 to 2 ruling, reversed the May 2014 decision of the D.C. Court of Appeals, which had held that a final rule of FERC governing the “demand response” in which operators of wholesale markets (regulated by FERC) pay electricity consumers (arguably subject only to state regulation) for commitments not to use electricity at certain times (such as those times when the demand for this power is greatest) was invalid. According to the Court of Appeals, this rule was not authorized by the Federal Power Act (FPA), which is careful to delineate the regulatory powers granted to the federal government and those powers reserved by the FPA to the states.  This is obviously a very technical rule and a complicated energy market the Supreme Court was construing, but it should be noted that this is the third reversal by the Court of a recent decision of the D.C. Court of Appeals. 

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Thanks in part to the current standoff at the Malheur National Wildlife Refuge—and the 2014 armed confrontation in Nevada that preceded it, the contentious issue of grazing rights on federal lands is more front of mind nationally than it’s been in decades.

With the federal government owning and controlling millions of acres of land, particularly in the western states, business activities conducted on federal land are subject to close scrutiny and often require that a relevant permit be obtained and maintained. A failure to possess appropriate federal authorization can result in acrimonious legal action, and as illustrated in U.S. v. Estate of E. Wayne Hage, et al.  On January 15, 2016, the Ninth Circuit reversed the district court’s ruling (a federal court sitting in Nevada) that the federal government could not prosecute an action for damages or injunctive relief against ranchers who were grazing their cattle on federal land without a federal grazing permit. Continue Reading ›

In an insurance case attracting the attention of many insurance companies, Century Indemnity Company v. Marine Group, LLP, et al., a U.S. Magistrate Judge with the U.S. District Court for the District of Oregon (Portland Division), in its opinion and order on Marine Group’s motion for clarification and reconsideration, held that an insurance policy provision which excludes coverage for environmental claims brought by governmental agencies extends to Superfund or CERCLA natural resource damage claims asserted by Indian tribes that are members of a Superfund Trustee Council. The Indian tribes are members of the Portland Harbor Natural Resource Trustee Council, and the Court held that the claims asserted by members of the Council, including the tribes, triggered the insurance exclusion.

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Citizens Suits have played an important role in the enforcement of both the Clean Water Act (CWA) and the Clean Air Act (CAA), and all permittees of wastewater discharge permits and air quality permits should be aware of the significance of these Congressionally-approved remedies. While they have broad application to many routine industrial discharges, there also are limited conditions placed on their use. For instance, the CWA Citizen Suit provision, 33 U.S.C. § 1365, requires plaintiffs to provide the alleged violator 60 days’ notice before filing a lawsuit. In addition, the text of the provision of the CWA limits its application to violations of “effluent standards or limitations,” which the CWA also carefully defines by reference to Sections 1311, 1312, 1316. 1317, 1341, and 1342 of the CWA. If the subject matter of the alleged violation is not covered by these provisions, the case will usually be dismissed.

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The U.S. Court of Appeals for the Third Circuit, in Group Against Smog and Pollution v. Shenango, Incorporated, affirmed the dismissal of a Clean Air Act (CAA) Citizen Suit where state regulators were engaging in an ongoing action against Shenango when GASP’s complaint was filed, and where the federal court had retained jurisdiction over a Consent Decree that had been issued. Continue Reading ›

In United States v. Tonawanda Coke Corp., the U.S. Court of Appeals for the Second Circuit, in an unpublished opinion released on January 11, 2016, rejected Tonawanda’s appeal of the lower court’s judgment adjudicating it guilty of criminal offenses under the Clean Air Act (CAA) and Resource Conservation and Recovery Act (RCRA), and requiring Tonawanda to fund two studies, at a cost of $12.2 million to investigate the effects of its conduct. On appeal, the Court of Appeals considered Tonawanda’s two arguments. First, Tonawanda argued that its RCRA conviction should be set aside because it did not have fair notice that its conduct was illegal and, second, that the prosecution should be barred because the relevant five-year statute of limitations had expired. The Court of Appeals dismissed the first argument, holding that Tonawanda’s counsel had not preserved this issue at trial. Regarding the second issue, the crime for which Tonawanda was convicted was the illegal storage of hazardous waste. The Court of Appeals found it was a “continuing offense” for which the “limitations clock” did not begin until December 2009, when, presumably, the illegal storage ceased. As stated by the Court of Appeals, “Congress, in enacting RCRA, employed language indicating that it understood [illegal] storage to be a continuing offense.”