Gravel2Gavel Construction & Real Estate Law Blog

In mid-March, the U.S. Court of Appeals for the Eighth Circuit, in National Parks Conservation Assoc.,  et al., v. McCarthy, approved the “Minnesota’s Regional Haze State Implementation Plan” (MRHSIP), rejecting the arguments opposing EPA’s approval filed by several environmental organizations. The conservation organizations challenged EPA’s approval of Minnesota’s decision to use the Transport Rule—also known as the Cross-State Air Pollution Rule (CSAPR)—in place of source-specific best available retrofit technology (BART), and Minnesota’s reasonable-progress goals. They unsuccessfully claimed that “the Transport Rule allowances in the Plan are not ‘better than BART.'”  Of note in this opinion is that, reviewing 42 U.S.C. § 7607(b), two of the three judges on the panel concluded that the Eighth Circuit has jurisdiction because the state implementation plans’ (SIP) reliance on the Transport Rule was based on local issues. If it was nationwide in scope and effect, this case would have to be heard by the DC Circuit Court of Appeals. With that, the Court of Appeals held that EPA’s approval of the Minnesota Plan based on the Transport Rule was not arbitrary and capricious and, similarly, EPA’s approval of the plan’s “reasonable-progress” goals was proper. The Court of Appeals noted, however, that other circuit courts have issued rulings that appear to conflict with its disposition.

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Earlier this week the U.S. Supreme Court, in Sturgeon v. Frost, Alaska Regional Director of the National Park Service, issued a unanimous ruling reversing  the U.S. Court of Appeals for the Ninth Circuit’s interpretation of the Alaska National Interest Lands Conservations Act (ANILCA) that had the effect of subjecting the use of hovercrafts on the Nation River in Alaska to criminal enforcement. The parties disputed whether Section 103(c) of ANILCA created an Alaska-specific exception to the National Park Service’s general authority over boating and related activities in federally managed preservation areas, each reaching different conclusions about the scope of the National Park Service’s  powers. The Court rejected the interpretation adopted by the Ninth Circuit, noting that “[u]nder the reading of the statute adopted below, the Park Service may apply nationally applicable regulations to ‘non-public’ lands within the boundaries of conservation system units in Alaska, but it may not apply Alaska-specific regulations to those lands.” This is the second recent decision by the Court reversing a lower court’s ruling involving environmental regulations that could have had serious criminal consequences. The earlier ruling was Yates v. United States.

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In early March, the U.S. Court of Appeals for the Tenth Circuit, in Sierra Club v. Oklahoma Gas and Electric Company, in a 2-to-1 decision, affirmed the district court’s dismissal of Sierra Club’s Clean Air Act (CAA) citizens suit against OG&E, concluding that their civil penalty and equitable relief claims are time-barred because Sierra Club’s claims first accrued when OG&E commenced modifications to the at-issue boiler without the required permit in March of 2008. Both parties agreed that civil penalties originating before April 1, 2008 were time-barred.  The Court of Appeals rejected Sierra Club’s arguments to extend the limitations period to after April 1 premised on there being repeated and continuing violations because of the lack of the required permit. Sierra Club’s claims for declaratory and injunctive relief were also time-barred because they were based on the same facts and timeline. What difference a few days make!

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Properly interpreting CERCLA’s statute of limitations often presents vexing problems, and never more so than when claims for natural resource damages (NRD) are filed. As explained several years ago by the Ninth Circuit Court of Appeals in United States v. Asarco, Inc., ordinarily a claim for NRD must be filed within three years of the discovery of the loss and its connection with the release in question. However, a special provision creates an exception to this timeframe when the site is placed on EPA’s National Priority List (NPL). Such NRD claims must then be filed within three years of the completion of a remedial action for the site, a process that can take years if not decades. A case in point is the recently decided case of State of New York, et al., v. Next Millennium Realty, LLC, focusing on whether NRD claims that are otherwise time-barred can be revived if the site is later placed on EPA’s NPL.

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The courts have been busy issuing significant Endangered Species Act rulings. In the latest decision, the U.S. Court of Appeals for the District of Columbia Circuit, in Defenders of Wildlife and Center for Biological Diversity v. Jewell, issued a unanimous ruling which affirmed the lower court’s decision that the U.S. Fish and Wildlife Service’s withdrawal of the proposed listing of the Dunes Sagebrush Lizard as an endangered species was consistent with the Endangered Species Act and the policies that the U.S. Fish and Wildlife Service has employed to administer the Act. This species is located in New Mexico and West Texas, where increasing oil and gas activity has threatened the habitat of the Lizard. The Court of Appeals held that a “voluntary state conservation agreement” can be considered by the U.S. Fish and Wildlife Service in deciding whether or not to list a species as endangered under the Act.

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