Articles Posted in Environmental

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Federal Courts of Appeal

Dam Claims Collapse
On May 7, 2019, the U.S. Court of Appeals for the Eleventh Circuit decided the case of Navelski, et al. v. International Paper Company. After a major storm, a dam constructed by International Paper to serve the operations of its local paper mill, was breached, releasing millions of gallons of water into a nearby creek resulting in the flooding of many homes located downstream from the creek. IP was sued by the homeowners in a class action, alleging negligence and strict liability for conducting an abnormally dangerous activity. The trial court dismissed the strict liability claim, and the jury found IP was not negligent in the operation of the dam. On appeal, the court upheld the jury verdict, agreeing that the verdict was supported by the evidence heard by the jury. The appeals court also agreed that the strict liability claim was properly dismissed as a matter of law because the operation of this dam was not an abnormally dangerous activity under Florida law. The plaintiffs had also argued that the jury should not have been advised that the home county, Escambia County, has applied for a FEMA grant which apparently made the case that some of the downstream homes were naturally prone to flooding. A redacted version of the application was allowed to be shown to the jury, but the appeals court held that the plaintiffs had not demonstrated that the court ruling was prejudicial.

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BSEE_logo-300x214The looming decommissioning liabilities of offshore energy producers have been a focus of the federal government in recent years. One recent case out of the U.S. Court of Federal Claims, Taylor Energy v. United States, highlights the tension between the federal government’s desire to maintain financial security for decommissioning activities, and that of an operator whose security is tied up indefinitely while the government awaits technological advances to allow for safe decommissioning.

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Environmental_Protection_Agency_logo-275x300After much study, EPA has decided against changing its current RCRA Subtitle D rules affecting the state regulation of oil and gas exploration & production waste. Since 1988, EPA has determined that most such wastes should be regulated as only non-hazardous wastes subject to RCRA Subtitle D, and not the more onerous hazardous waste provisions of RCRA Subtitle C. (See the Regulatory Determination of Oil and Gas and Geothermal Exploration, Development and Production Wastes, 53 FR 25,446 (July 6,1988).)

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Environmental_Protection_Agency_logo-275x300On Tuesday, April 23, 2019, in a development of interest to practically anyone who operates a plant or business, EPA published its Interpretive Statement in the Federal Register. (See 84 FR 16810 (April 23, 2019).) After considering the thousands of comments it received in response to a February 20, 2018, Federal Register notice, EPA has concluded that “the Clean Water Act (CWA) is best read as excluding all releases of pollutants from a point source to groundwater from a point source from NPDES program coverage, regardless of a hydrological connection between the groundwater and jurisdictional surface water.”

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On April 10, President Trump issued two Executive Orders (EO) relating to the revision of some aspects of federal energy policy and development.

1. The first EO is very comprehensive, affecting many federal agencies and departments, and is entitled “Promoting Federal Infrastructure and Economic Growth.” The EO emphasizes its concern with the need for infrastructure that “ is capable of safely and efficiently transporting these plentiful resources to end users.” To that end, the EO:

(A)     states the general policy that the U.S. Government is to promote private investment in the Nation’s infrastructure by establishing efficient permitting processes and procedures that avoid duplication and result in increased regulatory certainty;

(B)     reviews and revises existing federal guidance and regulations regarding Section 401 of the Clean Water Act (CWA), with particular emphasis on EPA’s guidance document, CWA Section 401 Water Quality Certification, and actions will be taken in accordance with a regulatory schedule set forth in the EO which has as its objective a notice of proposed rulemaking on the Environmental Protection Agency’s (EPA) Section 401 regulations to be published in 12 months, with the final rules to be issued by May 2020;

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In a decision released on March 31, in Sackett v. EPA, the U.S. District Court for Idaho held, without benefit of oral argument, that the Environmental Protection Agency’s (EPA) motion for summary judgment should be granted, and accordingly, the Sacketts had violated the Clean Water Act (CWA) by making improvements to 0.63 acres of land they owned without a required CWA permit when the land qualified as a “wetlands.”

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On March 29, the U.S. District Court for the District of Alaska issued two separate rulings that reversed and set aside energy and environmental decisions made by the current administration, which had revoked decisions made in these same matters by the prior administration. The cases are League of Conservation Voters, et al., v. Trump (concerning the development of oil and gas leases on the Outer Continental Shelf (OCS)) and Friends of Alaska National Wildlife Refuges, et al., v. Bernhardt, Acting Secretary of the U.S. Department of the Interior (which concerns a Land Exchange that would facilitate the construction of a road between two remote Alaska communities when that road would traverse parts of a designated national wilderness).

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On March 4, the U.S. Court of Appeals for the Seventh Circuit decided an important Resource Conservation and Recovery Act (RCRA) Citizen Suit, LAJIM, LLC, et al. v. General Electric Co., affirming the U.S. District Court for the Northern District of Illinois’s ruling finding General Electric Company (GE) liable for the contamination on summary judgment but denying  LAJIM, LLC’s request for injunctive relief “because, despite the many opportunities the court provided, plaintiffs did not offer evidence stablishing a need for injunctive relieve beyond what the company had already done in the state action.”

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