Articles Posted in Environmental

On October 30, the U.S. Court of Appeals for the Third Circuit decided the case of Transcontinental Gas Pipe Line Co., LLC v. Permanent Easements for 2.14 Acres, et al. , affirming the District Court’s grant of a preliminary injunction to Transcontinental Gas Pipe Line Company, LLC (Transcontinental). This case involves the construction of the “Atlantic Sunrise Expansion Project,” a natural gas pipeline that runs through Pennsylvania, Maryland, Virginia, North Carolina and South Carolina.

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On October 23, in another case that turned on the reviewing court’s authority to review an administrative action, the U.S. Court of Appeals for the District of Columbia held that the petitioners, having failed to raise their objections to a Biological Opinion the Federal Energy Regulatory Commission relied on in their petition for rehearing, forfeited their right to an appeal of this issue under 16 U.S.C. § 825(b) . The case is Maine Council of the Atlantic Salmon federation, et al., v. FERC.

Other issues raised in the petition for rehearing were reviewable, but the Court of Appeals held that FERC had appropriately rejected these arguments. The opinion will not be published.

On October 18, in Landry’s, Inc. and Houston Aquarium, Inc. v. Animal Legal Defense Fund, et al., the Texas Fourteenth Court of Appeals, sitting in Houston, affirmed the trial court’s dismissal of a lawsuit alleging that the defendants, including the Animal Defense Fund, defamed the plaintiffs’ business with the publication of their notice of intent to sue the plaintiffs under the Endangered Species Act (ESA).

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In another recent U.S. Court of Appeals for the Fifth Circuit decision, on October 1, 2018, the Fifth Circuit affirmed, in part, the District Court’s ruling that the general federal statute of limitations, 28 U.S.C. § 2462, required the dismissal of the government’s civil enforcement action in the case of U.S., et al., v. Luminant Generation Co., LLC, et al.

The Fifth Circuit agreed that the statute barred the imposition of any civil fine for the alleged unlawful construction operations regarding the modification of major emitting facilities contrary to Section 7475(a) of the Clean Air Act (CAA). But, the Fifth Circuit remanded the injunctive-relief claims to the District Court for further consideration.

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On September 21, the U.S. Court of Appeals for the Fifth Circuit issued a ruling interpreting potential liability under the Oil Pollution Act (OPA). In U.S. v. Nature’s Way Marine, LLC, the Fifth Circuit affirmed the holding of the District Court that, under OPA, the owner of a tugboat moving oil barges down the Mississippi which later collided with a bridge, spilling seven thousand gallons of oil, was itself an ”operator” subject to liability under the law.

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On September 27, the U.S. Court of Appeals for the Second Circuit affirmed the District Court’s ruling that the “Zero Emissions Credit” (ZEC) program of the New York Public Service Commission is not unconstitutional. The case is Coalition for Competitive Electricity, et al. v. Zibelman, Chair of the New York Public Service Commission, et al.

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In early October, the U.S. Court of Appeals for the Third Circuit rules in two Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) cases:

Giovani v. U.S. Department of the Navy

On October 2, the Third Circuit decided the case of Giovanni, et al., v. U.S. Department of the Navy. Affirming the District Court’s ruling in part, the Third Circuit’s view is that:

“[The claim for a health assessment or health effects study is barred, as the District Court said, because it challenges ongoing cleanup efforts. But we will vacate and remand in part because we conclude that the medical monitoring claim is not a challenge under CERCLA and that it is not barred by sovereign immunity.”

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In a Memorandum dated October 19, 2018 and entitled Promoting the Reliable Supply and Delivery of Water in the West, the President has directed the Secretaries of the Interior and Commerce to work together to minimize “unnecessary regulatory burdens and foster more efficient decision-making” so that major federal water projects are constructed and operated in a manner that delivers water and power in an “efficient, cost-effective way.” More specifically, they will take steps to streamline the western water infrastructure regulatory processes and remove unnecessary burdens in accordance with the timetables set forth in the Memorandum.

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