Gravel2Gavel Construction & Real Estate Law Blog
This is a brief review of recent significant environmental and administrative law rulings and developments. With the change in presidential administrations, the fate of at least some of the newly promulgated rules is uncertain.
Articles Tagged with EPA
A Court-Side Seat: “Inholdings” Upheld, a Pecos Bill Come Due and Agency Actions Abound
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Here are some significant environmental and regulatory rulings and administrative actions from December 2020.
The “Climate 21 Project” Prepared for the New Administration
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This is a brief review of the recently released “Climate 21 Project” policy memo. It is the work of many former members of the Obama Administration who are deeply concerned about climate change and what steps the new administration can take in the first 100 days to confront a problem. Offering “actionable advice” rather than a policy agenda, the group recognizes that Congress must do its part by providing new statutory authorities within the early days of the new administration, and the President must be prepared to aggressively exercise the powers of his office. As the members of the Group see it, there are four interlocking crises facing the President: (a) the COVID-19 pandemic; (b) the economic devastation visited upon many people by the pandemic; (c) racial injustice; and (d) accelerating threats posed by climate change.
A Court-Side Seat: An OSHA PSM Case, State Litigation Unmoved, New EPA Funding and Special Safety Standards for New Passenger Rail
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This roundup of recent environmental and regulatory law rulings and rulemakings includes an EPA deadline extended, a NEPA exclusion and PSM application upheld, and an unsuccessful appeal to the federal officer removal doctrine.
A Court-Side Seat: Citizen Suits, “Facility” Management and Some Nuance for Your Hazard Ranking
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Some very interesting and fairly complex environmental law rulings have been released in the past few days.
U.S. Supreme Court—Trump, et al. v. Sierra Club, et al.
On July 31, 2020, in a 5-to-4 decision, the Supreme Court denied a motion to lift the stay entered by the Court a few days earlier. The earlier action stayed a preliminary injunction issued by the U.S. District Court for the Northern District of California, which had enjoined the construction of a wall along the Southern Border of the United States which was to be constructed with redirected Department of Defense funds. The merits will be addressed by the lower court and perhaps the U.S. Court of Appeals for the Ninth Circuit.
A Court-Side Seat: O Little Landfill of Bethlehem, Nothing Fishy at the Aquarium and the Downside of Living Downwind
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Our latest look at the judiciary is focused mainly on the federal appeals system, with a side of regulatory development thrown in for good measure.
The U.S. Court of Appeals for the Third Circuit—Baptiste et al. v. Bethlehem Landfill Company
In this case, decided on July 13, 2020, the plaintiffs, neighbors of the Bethlehem Landfill, claimed that the operations of the landfill seriously interfered with the enjoyment of their homes, and resulted in a loss in their property values because of noxious odors. The lawsuit was grounded in Pennsylvania common law torts—public nuisance, private nuisance and negligence. The landfill is located on 224 acres and receives tons of waste on a daily basis which, as it decomposes, generates extremely noxious odors that are allegedly unbearable. The plaintiffs have asked for $5 million in property damages and other relief. The landfill is subject to extensive regulation by the Pennsylvania Solid Waste Disposal Act, and the rules of the Pennsylvania Department of Environmental Protection. However, since the statute does not provide a private right of action, the plaintiffs have resorted to the state common law remedies. The lower court dismissed the lawsuit, a decision the Third Circuit has now reversed. The appeals court held that the complaint was well pleaded and the case should be tried. The court noted some environmental justice concerns, but did not rely on these factors. The case was remanded to the trial court.
A Court-Side Seat: Airing It Out in Weymouth, No Reasonable Exception for Mercury and “40 Pages of Very Complex Information”
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Last week (June 1-7, 2020), the federal appellate courts released several important rulings.
Town of Weymouth, et al. v. Massachusetts Department of Environmental Protection
On June 3, 2020, the U.S. Court of Appeals decided the case involving the Atlantic Bridge LNG pipeline project which received FERC ‘s approval in July 2017. At issue is the proposed construction of a natural gas compression station in Weymouth, Mass. The MDEP granted the pipeline’s application and granted an air permit. Local opposition resulted in this appeal of the agency’s order. The plaintiffs argued that the DEP violated its own procedures in assessing whether an electric motor satisfied EPA’s BACT Clean Air Act requirements to control NOx emissions. The appeals court agreed that the DEP’s explanation of the cost factors was inadequate, vacated the air permit and remanded the matter to the agency for further proceedings.
A Court-Side Seat: The Fifth Circuit Tackles Groundwater, Title V of the CAA and the Bone Cave Harvestman
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The Fifth Circuit released three new decisions last Friday.
On May 29, 2020. The US Court of Appeals for the Fifth Circuit released three opinions in environmental cases: Stratta, et al. v. Roe, Director of the Brazos Valley Groundwater District; Environmental Integrity Project, et al. v. EPA; and American Stewards of Liberty, et al,. v. U.S. Department of the Interior.
A Court-Side Seat: May Brings Federal Appellate Courts Rulings and Executive Orders
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Here are a few interesting new rulings from the federal appellate courts.
COURT ORDERS
Like a Good Neighbor …? — State of Maryland v. EPA
On May 19, 2020, the D.C. Circuit decided a Clean Air Act case involving the use of the “Good Neighbor Provision” of the Act, which is triggered when one state has a complaint about emissions generated in a neighboring upwind state that settle in the downwind state. Here, Maryland and Delaware filed petitions with EPA seeking relief from the impact of emissions from coal-fired power plants that allegedly affect their states’ air quality. EPA largely denied relief, and the court largely upheld the agency’s use and interpretation of the Good Neighbor Provision. The opinion is valuable because of its clear exposition of this complicated policy.
Environmental Roundup: March – May 2020
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This is a brief account of some of the significant environment law developments that have occurred since the President’s March 13 national emergency declaration that the spread of COVID-19 poses a threat to national security.
The Courts – SCOTUS
The U.S. Supreme Court has issued three important decisions affecting environmental law during this period.