On September 30, the U.S. District Court for the District of Massachusetts issued a ruling dismissing claims that the operation of a municipal waste landfill violated the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) provisions making actionable any “substantial endangerment to human health and the environment.” The case is Toxics Action Center v. Casella Waste Sys., Inc., et al..
On October 29, the U.S. Department of Transportation (DOT) published a final rule in the Federal Register which amends and revises the environmental National Environmental Policy Act (NEPA) procedures rules employed by the Federal Highway Administration (FHWA), the Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA). There is a renewed interest in transportation infrastructure projects, and recent legislation is intended to accelerate required environmental reviews.
On October 30, the U.S. Court of Appeals for the Third Circuit decided the case of Transcontinental Gas Pipe Line Co., LLC v. Permanent Easements for 2.14 Acres, et al. , affirming the District Court’s grant of a preliminary injunction to Transcontinental Gas Pipe Line Company, LLC (Transcontinental). This case involves the construction of the “Atlantic Sunrise Expansion Project,” a natural gas pipeline that runs through Pennsylvania, Maryland, Virginia, North Carolina and South Carolina.
On October 18, the Illinois Supreme Court decided the case of Ameren Transmission Co. of Illinois v. Hutchings, et al. According to the Illinois Supreme Court, there is no presumption that Illinois courts have subject-matter jurisdiction over administrative actions. The availability of any review of this determination was controlled by the Public Utility Act (PUA), and under that law, the Circuit Court had no authority to assess the constitutionality of the Illinois Commerce Commission’s (Commission) proceedings when it was sitting as a court of general jurisdiction.
On October 23, in another case that turned on the reviewing court’s authority to review an administrative action, the U.S. Court of Appeals for the District of Columbia held that the petitioners, having failed to raise their objections to a Biological Opinion the Federal Energy Regulatory Commission relied on in their petition for rehearing, forfeited their right to an appeal of this issue under 16 U.S.C. § 825(b) . The case is Maine Council of the Atlantic Salmon federation, et al., v. FERC.
Other issues raised in the petition for rehearing were reviewable, but the Court of Appeals held that FERC had appropriately rejected these arguments. The opinion will not be published.
On October 18, in Landry’s, Inc. and Houston Aquarium, Inc. v. Animal Legal Defense Fund, et al., the Texas Fourteenth Court of Appeals, sitting in Houston, affirmed the trial court’s dismissal of a lawsuit alleging that the defendants, including the Animal Defense Fund, defamed the plaintiffs’ business with the publication of their notice of intent to sue the plaintiffs under the Endangered Species Act (ESA).
In another recent U.S. Court of Appeals for the Fifth Circuit decision, on October 1, 2018, the Fifth Circuit affirmed, in part, the District Court’s ruling that the general federal statute of limitations, 28 U.S.C. § 2462, required the dismissal of the government’s civil enforcement action in the case of U.S., et al., v. Luminant Generation Co., LLC, et al.
The Fifth Circuit agreed that the statute barred the imposition of any civil fine for the alleged unlawful construction operations regarding the modification of major emitting facilities contrary to Section 7475(a) of the Clean Air Act (CAA). But, the Fifth Circuit remanded the injunctive-relief claims to the District Court for further consideration.
On September 21, the U.S. Court of Appeals for the Fifth Circuit issued a ruling interpreting potential liability under the Oil Pollution Act (OPA). In U.S. v. Nature’s Way Marine, LLC, the Fifth Circuit affirmed the holding of the District Court that, under OPA, the owner of a tugboat moving oil barges down the Mississippi which later collided with a bridge, spilling seven thousand gallons of oil, was itself an ”operator” subject to liability under the law.
On September 27, the U.S. Court of Appeals for the Second Circuit affirmed the District Court’s ruling that the “Zero Emissions Credit” (ZEC) program of the New York Public Service Commission is not unconstitutional. The case is Coalition for Competitive Electricity, et al. v. Zibelman, Chair of the New York Public Service Commission, et al.
In early October, the U.S. Court of Appeals for the Third Circuit rules in two Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) cases:
Giovani v. U.S. Department of the Navy
On October 2, the Third Circuit decided the case of Giovanni, et al., v. U.S. Department of the Navy. Affirming the District Court’s ruling in part, the Third Circuit’s view is that:
“[The claim for a health assessment or health effects study is barred, as the District Court said, because it challenges ongoing cleanup efforts. But we will vacate and remand in part because we conclude that the medical monitoring claim is not a challenge under CERCLA and that it is not barred by sovereign immunity.”
