A Court-Side Seat: A Poultry Defense, a Houston Highway and a CERCLA Consent Decree that Won’t Budge


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February saw the usual array of significant environmental decisions and federal regulatory notices.


U.S. Court of Appeals for the District of Columbia

Luminant Generation v. EPA
The court will be grappling with a difficult venue case governed by the Clean Air Act (42 USC Section 7607(b)). In 2013, the U.S. Court of Appeals for the Fifth Circuit decided the case of Luminant Generation v. EPA (714 F. 3d 841), in which the court upheld the affirmative defenses that were made part of the Texas State Implementation Plan (SIP) and which applied to certain unpermitted emissions from regulated sources during periods of startup, shutdown or malfunction. These defenses were challenged in the Fifth Circuit and were rejected. On the national stage, EPA has been involved in litigation over these affirmative defenses and recently excluded from a “SIP Call” the Texas program, which was carved out. This EPA decision is being challenged in the DC Circuit (see Case number 20-1115),with the State of Texas arguing as an intervenor that any issues involving Texas belong in the Fifth Circuit, and not in the DC Circuit because the Act allows regional issues to be decided in the regional federal courts.

Red Lake Band of Chippewa Indians v. U.S. Army Corps of Engineers
On February 7, 2021, the court decided another oil pipeline case involving the Enbridge pipeline and a Corps’ Clean Water Act 404 permit. Enbridge plans to replace an existing pipeline with a new “line 3,” shipping oil from Canada to Wisconsin. The plaintiffs sought a preliminary injunction of the basis that the Corps had not sufficiently considered the impact of potential oil spills. After reviewing the record, the court held that the plaintiffs had not satisfied their heavy burden to prove that a preliminary injunction of a project near completion was warranted.

The U.S. Court of Appeals for the First Circuit

State of Rhode Island v. United Sates Air Force, et al.
On February 17, 2021, the court decided this complex and costly CERCLA (or Superfund) case. The appellants here (including Union Oil of California) find themselves embroiled in a long-standing CERCLA cost recovery and allocation dispute, and sought to undo the lower court’s approval of a Consent Decree that would largely bring this dispute to an end. A drum recycling facility was located at the CERCLA site, located near North Providence, Rhode Island. Other industrial activities included chemical manufacturing, and concentrations of dioxin were found in a nearby river, generating a fish advisory. The court affirmed the lower court’s ruling, finding that the judge had obviously mastered the complex facts in this case, and any arguments to the effect that the lower court had abused its discretionary powers was rejected. The court’s decision, reviewing the evidence and EPA’s procedures, is outstanding.

U.S. District Court for the Middle District of Pennsylvania

Lower Susquehanna Riverkeeper, et al, v. Keystone Protein Company
On February 18, 2021, the court ruled on this Clean Water Act Citizens Suit in which the plaintiffs argued that the defendant, a poultry waste processing facility, had violated its state NPDES permit many times by exceeding the plant’s permit limits for nitrogen. The defendant argued that the case should be dismissed because it has entered into Consent Orders with Pennsylvania DEP in 2012 and 2017 which require the defendant to replace its wastewater treatment facility by June 1, 2021. The court rejected this defense—based on the provisions of the federal Clean Water Act (CWA)—because the state equivalent to the CWA, the Pennsylvania Clean Steams Act, was not “roughly comparable” to the Clean Water Act. The court noted that this issue has not been decided by the Third Circuit Court of Appeals.


U.S. Department of Transportation
On February 9, 2021, the DOT notified the public that the permits needed to begin work on the North Houston Highway Improvement Project were in hand, and any petitions for judicial review must be filed within 150 days of the date of the publication of this notice. A Federal Environmental Impact Study and Record of Decision were released on February 3, 2021. This will be a major project, involving the replacement of a major highway cutting through the City of Houston and likely displacing many homes and businesses. (See 86 FR 8828.)

Department of the Interior
Also on February 9, 2021, the Department of the Interior issued a notice delaying the effective day of new rules that will substantially revise the current agency enforcement policy regarding the “taking” of migratory birds. (See 86 FR 8715.) The final rule was published on January 7, 2021, and the effective date has been extended until March 8, 2021. The public is invited to submit comments as to whether the effective date should be extended beyond that date. The rule is controversial, so its fate may be uncertain.

Presidential Memorandum
On February 10, 2021, a Presidential Memorandum was published in the Federal Register, entitled “Scientific Integrity and Evidence-based Policy making.” (See 86 FR 8845.) A Presidential task force, to be headed by the Director of Science and Technology Policy, will establish the parameters of this policy for federal agencies. The thrust of this directive appears to incorporate some of the concepts of a recent EPA regulation on scientific evidence, such as the necessity for peer review.

On February 12, 2021, EPA notified the public that EPA Region 6 has granted the request of the State of Texas that its delegated Clean Water Act NPDES regulatory authority be augmented to include regulating discharges from oil and gas facilities (mostly produced water discharges) within the State of Texas. EPA will retain jurisdiction over offshore oil and gas discharges. (See 86 FR 9332.)

On February 16, 2021, the Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking, inviting comments on a proposal to modify the existing Hazardous Communication Standard to harmonize with the UN’s “harmonized system of classification and labelling of chemicals.” This is a very long notice, more than 250 pages of Federal Register text. Comments are due by April 18, 2021. (See 86 FR 9576.)


A Court-Side Seat: Coal-Fired Limitations, the Search for a Venue Climate Change and New Agency Rules that May or May Not Stick Around

Environmental Law – The Year in Review