Gravel2Gavel Construction & Real Estate Law Blog

Industry representatives have complained that from time to time that EPA will enter into settlements of lawsuits brought by environmental interest groups that have the effect of excluding industry representatives from participating in the final settlement. Usually these lawsuits involve claims that EPA has failed to take a regulatory action–usually a new rule–in accordance with a statutorily-imposed deadline. The GAO was asked to investigate the procedures employed by EPA to settle such lawsuits.

Last December, the U.S. Government Accountability Office (GAO) released a report entitled, “Impact of Deadline Suits on EPA’s Rulemaking is Limited“. Several members of Congress expressed their concerns to the GAO that EPA’s practice of settling lawsuits by promising to conduct rulemakings when a statutory deadline has come and gone–principally in Clean Air Act matters–meant that the public had little or no opportunity to be involved in the development of significant rules. The GAO investigated the procedures employed by EPA and DOJ and concluded that the impact of this practice was negligible, and the process allowed the public to file comments during the pendency of the consent decree/settlement. The report was released as GAO-15-34 (December (2014).

On January 27, 2015, the U.S. District Court for Minnesota granted summary judgment to EPA and two environmental groups defending EPA’s decision to release personal data submitted by a group of Concentrated Animal Feeding Operations (CAFO) farm facilities who were also applicants for Minnesota wastewater discharges. The plaintiffs argued that the release of this information was controlled by the Freedom of Information Act and that there is an exclusion protecting against the release of such personal data. They argued that they feared the loss of privacy, and that the release of this information promised to subject them to threats and harassment by groups and persons opposed to CAFO farm operations. The lawsuit was dismissed on standing grounds. a The District Court determined that in the age of the Internet, their personal data was already freely available, and so there was no standing. A 1989 Supreme Court decision, U.S. Department of Justice, et al., v. Reporters Committee For Freedom of the Press, et al., 489 U.S. 749, on which the plaintiffs relied, was distinguished primarily because of the changes to information gathering and collection made by the Internet. The case is American Farm Bureau Federation and National Pork Producers Council v. EPA.

Tuesday, Pillsbury attorneys Matt Morrison and Bryan Stockton published their client alert Recent Cases on Clean Air Act Preemption of Common Law Torts Upend Conventional Wisdom. The Alert discusses two recent appellate-level decisions allowing state common law tort claims against an intrastate emitting source to avoid Clean Air Act (CAA) preemption, decisions that have surprised many CAA litigators. The outcome in both Bell v. Cheswick Generating Station, 734 F. 3d 188 (3d Cir. 2013), and Freeman v. Grain Processing Corporation, 848 N.W.2d 58 (Iowa 2014)–as well as the Supreme Court’s recent denial of certiorari in both cases–was unexpected to many because the Supreme Court has held previously that the CAA preempts similar tort claims based on federal common law. Stationary sources should be aware that some plaintiffs may be more inclined to attempt to raise state law tort claims, regardless of ultimate merit.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Matt Morrison or Bryan Stockton, the authors of this blog.

The Sixth Circuit Court of Appeals has ruled that ICG Hazard, LLC’s Clean Water Act (CWA) general permit defense, located in the CWA at 33 U.S.C. 1342(k), shielded the mining company from a CWA enforcement lawsuit filed by the Sierra Club. The case is Sierra Club v. ICG Hazard, LLC, decided January 27, 2015. Relying on the Fourth Circuit Court of Appeal’s 2001 ruling in Piney Run Preservation Association v. County Commissioners, 268 F.3d 255 (4th Cir. 2001), a divided panel of the Court of Appeals held that the general permit issued pursuant to delegated authority by the Kentucky Division of Water shielded ICG Hazard from this lawsuit. The pollutant in question is selenium, and the Court of Appeals held that the agency was aware of the potential for discharges from ICG Hazard’s surface mining operations. The Court of Appeals also held that the permit shield applies to both individual and general National Pollutant Discharge Elimination System (“NPDES”) permits. Moreover, the provisions of the CWA presumably trump contrary provisions of Surface Mining Act.
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