Articles Posted in Environmental

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On October 3, in the case of Boerschig v. Trans-Pecos Pipeline, LLC, the U.S. Court of Appeals for the Fifth Circuit affirmed the lower court’s denial of request for a preliminary injunction to enjoin Texas state condemnation proceedings initiated by the pipeline defendant because, it was argued, these proceedings violated the Due Process Clause of the U.S. Constitution. The plaintiff landowner argued that the Texas law illegally delegated condemnation authority to a private party (the pipeline company), and that the process failed to provide an opportunity for the plaintiff to participate in a “predeprivation hearing” where the condemnation can be challenged. The Fifth Circuit concluded that the plaintiff was unable to establish a likelihood of success on the merit, a sine qua non for obtaining a preliminary injunction.

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On March 22, during the U.S. Supreme Court’s 2015 Term, the Court issued a unanimous ruling that the Ninth Circuit’s interpretation of the scope of the National Park Service’s authority to ban the use of a hovercraft on Alaska’s Nation River within the Yukon-Charley Rivers National Preserve was erroneous in that it failed to recognize that the Alaska National Interests Lands Conservation Act (ANILCA) had the effect of carving out an exception for the use of hovercraft in these waters that was permitted by Alaska. The petitioner, John Sturgeon, was warned by Park Service Rangers that his use of the hovercraft within the boundaries of the Yukon-Charley preserve was prohibited, and that he was committing a crime by doing so. After reviewing ANILCA and the different laws and accommodations that were enacted to facilitate Alaska’s entry into the Union, the Court concluded that the law “repeatedly recognizes that Alaska is different,” and the judgment of the Ninth Circuit was vacated, and remanded for further proceedings. This was the only issue decided by the Court, whose decision is reported as Sturgeon v. Frost.

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On September 27, the U.S. Court of Appeals for the Fifth Circuit issued its long-awaited opinion in the case of U.S. v. Moss, et al. The Fifth Circuit affirmed the District Court’s ruling that the Outer Continental Shelf Lands Act (OCSLA) regulations do not apply to the appellees.

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On September 14, 2017, the Council on Environmental Quality (CEQ), which oversees compliance with the National Environmental Policy Act (NEPA) by federal agencies, announced a list of planned actions to implement President Trump’s Executive Order (EO) on streamlining federal environmental reviews and approvals.

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On September 15, the U.S. Court of Appeals for the First Circuit released a significant Oil Pollution Act (OPA) ruling. The case is Ironshore Specialty Insurance Company v. U.S., et al. The Court of Appeals affirmed the District Court’s decision that neither the U.S. nor American Overseas Marine Company, LLC (AMSEA) , a contractor that provided specified services to the U.S. Navy in connection with the operation of “the FISHER,” a government-owned transport vessel and vehicle cargo ship, were liable under the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701-2761 (OPA), for a fuel oil discharge. However, Ironshore Specialty Insurance Company (Ironshore), BSR’s insurer, negligence claims against the U.S. (but not AMSEA) were remanded to the District Court for further proceedings.

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The Federal Energy Regulatory Commission’s (FERC) decision in the matter of Millennium Pipeline Company, LLC was issued on September 15, 2017. FERC determined that the New York State Department of Environmental Conservation (NYDEC) waived its right to act on a state Clean Water Act (CWA) 401 water qualification by failing to act before the statutory deadlines established by the CWA, 33 U.S.C. § 1341(a)(1), expired. This certification, required of most pipeline applications under the Natural Gas Act (NGA), provides that the State must act on a request for certification “within a reasonable time (which shall not exceed one year) after receipt of such request,” or “the certification requirements of this subsection shall be waived with respect to such Federal application.”

According to FERC, Millennium’s application was received by the NYDEC on November 23, 2015, and NYDEC was required by law to make its certification decision by November 23, 2016 and at least this obstacle to the construction of the “Valley Lateral Project” in Orange, NY has been surmounted.

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On September 7, the U.S. Court of Appeals for the Fifth Circuit granted a stay of a Federal Deposit Insurance Corporation (FDIC) order, following a hearing conducted by an agency administrative law judge (ALJ), assessing a civil penalty against a former banking officer and also requiring his withdrawal from the banking industry. The case is Burgess v. FDIC.

In so ruling, the Fifth Circuit joined the U.S. Court of Appeals for the Tenth Circuit, which concluded, in Bandimere v. SEC, that the Securities and Exchange Commission (SEC) ALJs were “inferior Officers” who are subject to the provisions of the U.S. Constitution’s Appointments Clause, U.S. CONST. art. II, § 2, cl. 2..

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In an unusual case, Western Watersheds Project, et al v. Michael, Attorney General of Wyoming, decided on September 7, 2017, the U.S. Court of Appeals for the Tenth Circuit reversed the District Court’s decision upholding recently-enacted Wyoming laws which impose civil and criminal liability on any persons who “cross private land to access adjacent or proximate land where he collects resource data.”

The Court of Appeals concluded that the statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property. Although trespassing does not enjoy First Amendment protection, the statutes at issue target the ‘creation’ of speech by imposing heightened penalties on those who collect resource data.

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On August 28, the U.S. Court of Appeals for the Ninth Circuit decided the case of Sierra Club, et al., v. State of North Dakota, et al., a Clean Air Act (CAA) Citizen lawsuit. The Ninth Circuit affirmed, in a 2-1 ruling, the District Court’s approval of a Consent Decree between the Environmental Protection Agency (EPA) and Sierra Club that established a schedule by which EPA would promulgate “designations” determining which geographic locations met the National Air Quality Standards (NAAQS) for 1-Hour Sulfur Dioxide (SO2) under the CAA.

These NAAQS must, by law, be revised periodically. When EPA fails to make these designations in a timely manner and fails to adhere to the statutory deadlines, EPA was subject to Citizen Suits under the law, as happened here, and several states intervened in this litigation. Continue reading

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In the case of EQT Production Company v. Wender, et al., on August 30, the U.S. Court of Appeals for the Fourth Circuit affirmed, in a 2-1 ruling, the lower court’s decision that a West Virginia county’s ordinance effectively barring the operation of a state-licensed injection well was preempted by a “web of state and federal laws comprehensively regulating oil and gas production and wastewater disposal in West Virginia.”

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