Gravel2Gavel Construction & Real Estate Law Blog
Last week (June 1-7, 2020), the federal appellate courts released several important rulings.
Town of Weymouth, et al. v. Massachusetts Department of Environmental Protection
On June 3, 2020, the U.S. Court of Appeals decided the case involving the Atlantic Bridge LNG pipeline project which received FERC ‘s approval in July 2017. At issue is the proposed construction of a natural gas compression station in Weymouth, Mass. The MDEP granted the pipeline’s application and granted an air permit. Local opposition resulted in this appeal of the agency’s order. The plaintiffs argued that the DEP violated its own procedures in assessing whether an electric motor satisfied EPA’s BACT Clean Air Act requirements to control NOx emissions. The appeals court agreed that the DEP’s explanation of the cost factors was inadequate, vacated the air permit and remanded the matter to the agency for further proceedings.
NRDC and the State of Vermont v. EPA and the Enbridge Pipeline’s oil spill
On June 5, 2020, the U.S. Court of Appeals for the Second Circuit reviewed a new EPA TSCA mercury reporting rule. The agency provided some reporting exceptions, most of which were approved by the court. However, the court set aside and vacated the exception for mercury importers because it lacked a “reasoned explanation.” Also on June 5, 2020, the U.S. Court of Appeals for the Sixth Circuit upheld the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration’s approval of the Enbridge Pipeline’s oil spill response rules, reversing the decision of the lower court. There was a consensus that the response plans satisfied all of the specific criteria set forth in the Clean Water Act, but the lower court also held that the agency had the duty to apply the requirements of the Endangered Species Act and NEPA , which it had not done. The Sixth Circuit, in a divided opinion, ruled that the lower court erred because the agency had no discretion under the law to apply either the ESA or NEPA.
National Family Farm Coalition, et al. v. EPA
On June 3, 2020,the U.S. Court of Appeals for the Ninth Circuit set aside and vacated an EPA FIFRA herbicide registration determination because there was insufficient evidence in the record to support the agency’s decision. The herbicide is dicambra, which has been manufactured for many years by Monsanto (since acquired by Bayer Crop Science). In 2018, EPA granted an amended registration to Monsanto, and the pesticide has been used by many growers of genetically modified crops. The application of the pesticide has created problems for neighboring land owners, and the amended registration included a revised ”label,” which the court described as consisting of 40 pages of very complex information. The rejection of this registration has caused concern because so many growers have invested so heavily in this product. The court acknowledged these concerns, but determined that the registration must nevertheless be vacated because of the legal errors it noted.
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