Gravel2Gavel Construction & Real Estate Law Blog

Readers may find helpful this recapitulation of recently-decided environmental law cases by the federal and state courts. The U.S. Supreme Court has issued two important rulings, and the court will be deciding important administrative law and Clean Air Act cases before the current term ends in June.

1. FEDERAL COURTS
A. Supreme Court

Kansas and Nebraska share the waters of the Republican River that flow through their states, as well as Colorado. Their disputes resulted in the Republican River Compact, which the states agreed to in 1943 to fairly allocate the water resources of the Republican River; the Compact was approved by the Congress in appropriate legislation. In 1998, Kansas and Nebraska argued over Nebraska’s increased pumping of groundwater, which resulted from the construction of thousands of wells hydraulically connected to the Republican River and its tributaries. A Special Master was appointed to sort out these complaints, and a settlement was signed in 2002 which included new procedures to promote compliance with the Compact. After the experience of some lingering droughts, Kansas complained that Nebraska was exceeding its authorized allocation of water. Another Special Master was appointed, who determined that Nebraska had knowingly failed to comply with the Compact in consuming excessive amounts of Republican River water, and the Master awarded Kansas $3.7 million for its loss and an additional sum of $1.8 million against Nebraska as a “partial disgorgement”. Both parties filed exceptions to the Special Master’s report, which the Supreme Court approved in the latest Kansas v. Nebraska decision, decided February 24, 2015.
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Today, in a narrow 5 to 4 decision, the United States Supreme Court reversed the opinion of the Eleventh Circuit Court of Appeals which had affirmed the felony conviction of John Yates, a commercial fisherman, who was suspected of having caught undersized red grouper in federal waters off the coast of Florida and convicted for concealing evidence of a violation of the federal conservation laws. This is an important ruling affecting the enforcement of the federal conservation laws and interpreting the scope of the Sarbanes-Oxley Act of 2002, which was enacted in the wake of the Enron collapse and the destruction of financial documents that abetted its demise. The case is Yates v. United States, decided February 25, 2014.
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Yesterday, in the United States Supreme Court’s decision in Kansas v. Nebraska, several members of the Court strongly disagreed with the determinations of Justice Kagan, including that “disgorgement” was proper. The Chief Justice, and Justices Thomas, Scalia and Alito argued that the Court’s equitable power was not sufficient to alter the accounting principles the states had agreed to in earlier settlements. For his part, Justice Scalia advised his colleagues not to treat the Restatements of the law as an authoritative description of the law: “Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be”. For his part, Justice Thomas took the view that ordinary contract principles should have been applied to this dispute, which the majority ignored, and observed that this dispute involves the “inherent authority of sovereign states to regulate the use of water” and that “authority over water is a core attribute of state sovereignty”. These views may play a role in all manner of cases in the future.
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The Texas Supreme Court is scheduled to hear oral arguments in City of Houston v. BCCA Appeal Group, Inc., on March 25, 2015 regarding whether the application of a City of Houston registration ordinance which purports to regulate air pollution within the City of Houston’s borders is preempted by the Texas Clean Air Act of 1967 (TCAA). The First District Court of Appeals held that the defendants “failed to show that the Legislature intended to preempt the Ordinance with ‘unmistakable clarity,’ and thus, failed to meet its extraordinary burden to establish that the ordinance is invalid, 2013 Tex. App. LEXIS 11089 (Tex. Ct. App. Aug. 29, 2013). The City of Houston is clearly concerned that the Texas Commission on Environmental Quality’s enforcement of the TCAA has not been very vigorous. We should expect to see a decision in this important case a few months .

On February 13, 2015, the U.S. District Court for the Eastern District of Louisiana dismissed a major lawsuit that was filed by the Board of Commissioners of the Southeast Louisiana Flood Protection Authority–representing a number of local South Louisiana levee boards–against 88 oil and gas companies operating in South Louisiana for many years. The case is Board of Commissioners of the Southeast Louisiana Flood Protection Authority-East, et al., v. Tennessee Gas Pipeline Company, LLC.
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As I previously reported, 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 Operation (CAFO)-farm facilities who were also applicants for Minnesota wastewater discharges. The case is American Farm Bureau Federation and National Pork Producers Council v. EPA. However, on February 6, 2015, the District Court released an Amended Protective Order pursuant to an agreement reached by the plaintiffs and defendants to limit the disclosure of the confidential information that is at issue in this case.
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