Articles Posted in Environmental

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On May 4, the U.S. District Court for the District of Columbia issued a “Deepwater Horizon” ruling in Center for Biological Diversity v. Zinke. The Center for Biological Diversity’s (Center) claims concerns the Department of the Interior’s (Department) ongoing review of its “categorical NEPA exclusions” with respect to offshore oil and gas operations, which are subject to the Department’s scrutiny. The District Court dismissed the Center’s lawsuit, holding that the Center was unable to prove that the Department failed to take an action that is both discrete and mandatory under the Administrative Procedure Act (APA). Also, the District Court’s review of the pertinent Council on Environmental Quality (CEQ) regulations indicated that the rule, as properly construed, does not require agencies to complete their review of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370h (NEPA), procedures even after they have embarked on such a review.

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Federal government records, including business records submitted to the government, are subject to disclosure under the federal Freedom of Information Act (FOIA). However, FOIA exempts nine categories of government records from this disclosure obligation. A May 9 ruling by the U.S. Court of Appeals for the District of Columbia in AquAlliance v. U.S. Bureau of Reclamation discusses the scope of Exemption 9. Exemption 9 provides that there is no duty to disclose “geological and geophysical information, data, including maps, concerning wells.”

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The Consolidated Appropriations Act of 2017 authorized appropriations for the Fiscal Year 2017. This large and copious bill provides funding for all Federal agencies for this fiscal year. The Congressional committees included many environmental policy statements and directives to these agencies.

Section II, Division G—The Departments of the Interior, the Environment and Related Agencies

Within 60 days, the Department of Interior (Interior), Environmental Protection Agency (EPA) and U.S. Forest Service (Service) are directed to provide the House and Senate Committees on Appropriations with a detailed Equal Access to Justice report which will make their litigation costs transparent.

Regarding new Executive Order 13783, the Committees expect Interior and EPA to keep the committees fully appraised of any actions taken to comply with this new Order affecting domestic energy resources.

The Committees expect the departments and agencies to provide their Inspectors General with timely access to all appropriate agency records as needed.

The departments and agencies are reminded that there can be no lobbying of Congress with appropriated funds.

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In a very complex, hard-fought case, U.S. District Judge David Hittner discusses how the Texas Commission on Environmental Quality’s (TCEQ) regulatory affirmative defenses to alleged Clean Air Act (CAA) violations will be viewed by the courts, if not the regulatory agencies. Environment Texas Citizen Lobby, Inc., et al., v. ExxonMobil Corp., et alinvolves the complex regulatory regime that any large industrial facility must follow—whether it is a chemical plant, a refinery, steel mill, automotive assembly plant— if they have air emissions that must be regulated. In addition, these facilities must adhere to strict reporting rules, where evidence of non-compliance can often be found by litigants without a lot of hard work. A defense to some of these complaints lies in the fact that regulatory authorities will exercise prosecutorial discretion—by rule—when no one can control emissions during an unplanned upset (i.e., accident, natural disaster, etc.) or a planned shutdown for plant maintenance. ExxonMobil’s “Act of God” defense might have worked, it seems, if Texas had properly incorporated that state requirement in its federal State Implementation Plan (SIP). It should be noted that large scale construction projects necessitate many state and federal permits, and now there are federal laws and regulations to expedite the federal review—and new Executive Orders to reinforce that policy.

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Will the U.S. Constitution’s Commerce Clause always insulate interstate commerce from the imposition of state and local taxes? Not always, as the Texas Supreme Court recently confirmed, when it agreed with the Court of Appeals for the First District of Texas, that Texas counties are permitted to levy property taxes on natural gas held in storage in Texas while awaiting future resale and shipment to out-of-state consumers. The case is ETC Marketing, Ltd. v. Harris County Appraisal District. Affirming the Court of Appeals, the Court rejected the argument that taxing the temporary storage of natural gas conflicts with the Commerce Clause in the U.S. Constitution. Continue reading

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On April 28, the Texas Supreme Court, affirming the Court of Appeals of Texas, First District, sitting in Houston, issued a unanimous ruling in the case of Forest Oil Corporation v. El Rucio Land and Cattle Company, Inc., et al. This case involves claims for environmental contamination caused by oil and gas operations on the land of the McAllen Ranch, whether the Texas Railroad Commission (TRC) has primary jurisdiction to respond to these claims, and whether the court should overturn the decision of an arbitration panel the parties earlier agreed to in order to resolves their disputes. The Texas Supreme Court held that there is nothing in the Texas Water Code and other statutory provisions that gives the TRC primary jurisdiction over oil and gas contamination disputes if the parties exercise their common law remedies in court. This decision is an important statement of the Texas Supreme Court’s views on primary agency jurisdiction when the courts themselves have broad jurisdiction to decide these matters.

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On April 18, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s ruling in a Louisiana case that dismissed the plaintiff’s claims for property damage based on contamination caused to his property by long-term oil and gas operations conducted by the predecessors of Hess Corporation. The case is Guilbeau v. Hess Corporation.

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On April 20, an intermediate Court of Appeals for the First Court of Appeals, sitting in Houston, reversed the trial court and directed that court to reinstate an environmental enforcement action that had purportedly been settled by agreement of the officials of Brazoria County, Texas and the defendants. Brazoria County had brought an environmental enforcement action against the defendants for violating state and county regulations regarding sewage disposal and the use of on-site sewage facilities. The State had objected to these settlement reached by Brazoria County and the defendants, but the trial court overruled the State’s objections and entered final judgment resolving the case and attaching the Agreed Judgments as exhibits to its judgment. The case is The State of Texas v. Brazoria County and Daniel Infante, Humberto Lumbrero, Isidro Dejesus Luna, and Ma Dejesus Luna.

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On April 20, the U.S. District Court for the District of South Carolina, Anderson Division, dismissed the plaintiffs’ Clean Water Act (CWA) Citizen Suit which alleged that the defendant pipeline operators had violated the CWA by discharging pollutants into navigable waters without a permit. The District Court concluded that although plaintiffs “identified a discrete source for the pollution,” they “failed to allege a discrete conveyance of pollutants into navigable waters.” The District Court otherwise confirmed that “the CWA does not apply to claims involving discharge of pollution to groundwater that is hydrologically connected to surface waters.” The case is Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, L.P. and Plantation Pipe Line Company, Inc.

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On April 20, the U.S. Court of Appeals for the Second Circuit issued a unanimous ruling that may terminate much of the litigation triggered by the bankruptcy of Tronox Inc. The Court of Appeals dismissed the appeal for lack of jurisdiction. The case is In re Tronox Inc.

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