On November 23, the latest National Climate Assessment, Fourth National Climate Assessment (NCA4), was released by the U.S. Global Research Program, as required by the Clean Air Act. The Assessment, comprising three volumes and 1600 pages, contains some rather bleak findings which the Report usefully summarizes. Here’s a description of these findings.
On November 27, 2018, the U.S. Supreme Court issued a ruling vacating and remanding the U.S. Court of Appeals for the Fifth Circuit’s decision in Weyerhaeuser Company v. U.S. Fish and Wildlife Service. The Court of Appeals had affirmed the District Court’s ruling that the U.S. Fish and Wildlife Service (Service) properly designated, under the Endangered Species Act (ESA), a large tract of land located in Louisiana as a critical habitat suitable for the endangered Dusky Gopher Frog, which currently is only found in Mississippi. This is an important ruling under the ESA, and it will be very interesting to see what happens when the case is returned to the Fifth Circuit.
The Louisiana land is owned by the Weyerhaeuser Company and a group of family landowners, who have challenged these decisions of the Service and the lower federal courts. Weyerhaeuser Company v. United States Fish and Wildlife Service was argued on October 1, 2018. Justice Kavanaugh did not participate because he was not on the Court at the time of the oral argument. Continue Reading ›
On November 7, the Office of the Attorney General issued a Memorandum re: Principles and Procedures for Civil Consent Decrees and Settlement Agreements with State and Local Governmental Entities. This Memorandum is based largely on federalism concerns. It is anticipated that the policy on consent decrees with state and local governments is likely to have an impact on environmental enforcement actions.
On October 30, in Sinnok, et al. v. State of Alaska, et al., the Superior Court, sitting in Anchorage, AK, granted the state’s motion to dismiss the plaintiffs’ (a “group of Alaska youth ages 5 to 20”) complaints that the state has contributed to climate change through its actions with respect to fossil fuels and carbon emissions. The plaintiffs sought injunctive relief in the form of a court order to the state to prepare an accounting of carbon emissions and to create a climate recovery plan. They also sought a declaratory ruling that the state’s actions violated their fundamental rights to a “stable climate system.”
On September 30, the U.S. District Court for the District of Massachusetts issued a ruling dismissing claims that the operation of a municipal waste landfill violated the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) provisions making actionable any “substantial endangerment to human health and the environment.” The case is Toxics Action Center v. Casella Waste Sys., Inc., et al..
On October 29, the U.S. Department of Transportation (DOT) published a final rule in the Federal Register which amends and revises the environmental National Environmental Policy Act (NEPA) procedures rules employed by the Federal Highway Administration (FHWA), the Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA). There is a renewed interest in transportation infrastructure projects, and recent legislation is intended to accelerate required environmental reviews.
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.
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).
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.
Gravel2Gavel Construction & Real Estate Law Blog