Affirming the district court, the U.S. Court of Appeals for the Ninth Circuit rejected 
claims that the environmental impact statement (EIS) adopted by the Tahoe Regional Planning Agency supporting the Regional Plan Update (RPU) failed to comply with the requirements of the Regional Planning Compact between California and Nevada (Compact). The case is Sierra Club, et al., v. Tahoe Regional Planning Agency, decided on November 2, 2016.
A group of environmental organizations, headed by the Sierra Club, filed a Clean Water Act (CWA) citizen’s lawsuit against the BNSF Railway Company, alleging that the railroad, the only transporter of coal in Washington, illegally discharges coal and coal dust into the waterways of the State of Washington by virtually every one of its shipments of coal through the state. Motions for summary judgment were filed by both the plaintiffs and BNSF Railway. On October 25, the U.S. District Court for the Western District of Washington, seated in Seattle, in a significant ruling, denied both motions. The case is Sierra Club, et al., v. BNSF Railway Company.
The plaintiffs alleged that each and every train operated by BNSF Railway discharges coal pollutants into the waters of the United States without a CWA permit. The coal is allegedly discharged through holes in the bottoms and sides of the rail cars or emitted from the open tops of the rail cars and the train. BNSF Railway has denied these claims, and also argues that the CWA, in this instance, is preempted by the Interstate Commerce Commission Termination Act, 49 U.S.C. §§ 10101 et seq. (ICCTA).
With respect to BNSF’s argument that the plaintiffs do not have standing because they cannot use a limited number of waterbodies in a representative capacity to establish standing for all waterbodies in the State of Washington, the District Court noted that, at this stage, it was bound by a Ninth Circuit precedent, Alaska Center for the Environment, et al., v. Browner. The Ninth Circuit, in the 1994 Browner decision, held that a plaintiff seeking state-wide environmental relief was not required to demonstrate harm over the entire state, but was only required to establish that a representative number of areas were adversely affected by the Environmental Protection Agency’s (EPA) inaction, and that “for CWA regulatory purposes, all waters of the state were interrelated.”
The plaintiffs urged the District Court to find that there is no dispute that BNSF is liable for discharging coal into Washington’s waterways without a permit in violation of the CWA; and suggested that BNSF may have violated the CWA over 12 million times in the years 2012 through 2015 based on the number of trips that the BNSF railcars made during this period. The District Court was not convinced that the plaintiffs had demonstrated that BNSF operations were in violation of the CWA because it had not been established that “point source” discharges were involved. The defendant argued that coal emissions to land, coal emissions from land to water, and coal dust emissions are not point source discharges. On the one hand, the District Court agreed with this argument, holding that the plaintiffs “have not provided evidence that there was a discrete conveyance of coal into the water from coal that is deposited onto the land adjacent to the tracks.” Also, coal dust deposited in navigable waters from BNSF trains “is not a point source discharge unless there is a discrete conveyance.” On the other hand, the District Court concluded that direct discharges of coal and coal particles form the trains that travel adjacent to or above the waters at issue are point source discharges. Consequently, while some discharges are evidently violations of the CWA, the District Court declined to find the railroad liable for any CWA violations at this time because there are disputes of material fact that must be resolved at trial.
The District Court also declined to rule on BNSF’s ICCTA preemption argument at this time.
Our colleagues Julia Judish, Dick Oliver and Glenn Sweatt recently published a very interesting client alert discussing U.S. District Court Judge Marcia A. Crone’s issuance of a preliminary injunction that suspends the implementation of certain portions of President Obama’s Executive Order 13673, called the Fair Pay and Safe Workplaces Executive Order, that otherwise would have gone into effect on October 25. Judge Crone enjoined two key provisions in the new regulations that would require government contractors and subcontractors to report adverse labor law determinations and prohibit pre-dispute arbitration agreements regarding matters under Title VII of the Civil Rights Act and torts based on sexual assault or harassment. These regulations, commonly called the “blacklisting” rule by opponents, could be used to preclude otherwise qualified government contractors from receiving awards of federal procurement contracts. The alert is titled Executive Order Stayed by District Court Judge.
Additional Source: Associated Builders and Contractors of Southeast Texas v. Rung, No. 1:16-CV-425 (E.D. Tex. Oct. 24, 2016); Final Rules and Guidance Issued on “Blacklisting” Executive Order
On October 24, the U.S. Court of Appeals for the Ninth Circuit reversed the district court
and upheld the determination of the National Marine Fisheries Service (NMFS). The NMFS concluded that two distinct population species of the Pacific bearded seal subspecies –located in the shallow waters of the Artic—were likely to become endangered within the foreseeable future. Climate projections that the loss of sea ice over those shallow waters foreshadow that this subspecies will become endangered under the provisions of Endangered Species Act (ESA) by the year 2095. The case is Alaska Oil and Gas Association, et al., v. Pritzker. Continue Reading ›
On October 17, the U.S. District Court for the Northern District of West Virginia 
granted summary judgment to Murray Energy Corporation, which sued the Environmental Protection Agency (EPA) seeking declaratory and injunctive relief against EPA because it has persistently failed to perform a nondiscretionary duty under Section 321(a) of the Clean Air Act (CAA) (42 U.S.C. § 7621(a)), to “conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement” of the CAA with regard to the effect EPA’s actions are having on the coal industry and “the hundreds of thousands of people it directly or indirectly employs.” The case is Murray Energy Corporation, et al., v. McCarthy. Continue Reading ›
We recently posted an interesting blog on Pillsbury’s Policyholder Pulse titled
Subrogation Waivers and the Perils of Litigation: Wavering on a Precipice. In it, we discuss the perils of using standard subrogation waivers in your insurance policies, and cautions against the use of standard waivers (which can have unintended consequences).
Our latest Environmental Case Law Update highlights a number of significant environmental and administrative law decisions reported in the period of April-September 2106. We hope you find this information to be useful and informative.
Photo: Ian Sane, Silver Creek, Taken November 3, 2012 – Creative Commons
In a decision released on October 11, 2016, the U.S. Court of Appeals for the DC Circuit issued a very long opinion (110 pages) which vacates an order of the Consumer Financial Protection Bureau (CFPB) that requires PHH Corporation, a large home mortgage lender, to disgorge $109 million in a captive reinsurance arrangement the CFPB held to be illegal. The case is PHH Corporation, et al., v. CFPB. In so ruling, the panel majority, in a decision written by Judge Kavanaugh, holds that the basic structure of the CFPB—an independent agency wielding enormous power over the nation’s economy that is headed by a Director who is largely immune from any Presidential control or direction—essentially operates without any institutional checks on the exercise of his or her authority. Only a few “independent agencies” have ever operated under these conditions, and their powers were quite limited. The Court of Appeals holds that this arrangement has no historical basis and in effect violates the constitutional separation of powers.
Recently, our colleagues Tamara Bruno, Colin Kemp, Peter Gillon, Vince Morgan and Joseph Jean published an alert titled Hurricane Matthew Requires Immediate Action to Maximize Insurance Recovery to help you weather any storm.
Photo: U.S. Department of Agriculture – A MH-60 helicopter from the U.S. Coast Guard (USCG) Aviation Training Center Mobile, AL conducted a fly over of the Charleston, South Carolina area that was affected by Hurricane Matthew, on Friday, October 8, 2016. The Coast Guard is committed to the safety of the community, environment, and responders. USCG photo by Petty Officer 3rd Class Alexandria Preston – Creative Commons
A few weeks ago, we noted that the U.S. District Court for the District of Columbia, in a decision reported on September 9, 2016, denied a motion for a preliminary injunction filed by the Standing Rock Sioux Reservation against the construction of the Dakota Access Pipeline through the lands of the Tribe. That case is Standing Rock Sioux Tribe, et al., v. U.S. Army Corps of Engineers, et al. The Tribe alleged that the Corps of Engineers, in its review of the permitting requirements triggered by the project, had failed to engage in the consultative process requirements of Section 106 of the National Historic Preservation Act (NHPA), but that District Court denied relief, holding that the Tribe largely refused to engage in such consultation. On September 9, 2016, the Tribe filed an emergency appeal with the U.S. Court of Appeals for the District of Columbia, and the DC Circuit responded by issuing an order to the pipeline to freeze work on the pipeline within 20 miles of Lake Oahe. This narrow work freeze, described as an administrative injunction, was intended to give the Court of Appeals sufficient opportunity to considered the Tribe’s motion for an injunction pending appeal.
