Articles Posted in Environmental

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Pillsbury partner and Global Co-Head of the Energy & Infrastructure Projects team, Mona Dajani, talks #ChangeInPower with Paul Browning, President and CEO of Mitsubishi Power Americas.

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Join us on November 12, 2020, for a 45-minute conversation, where Mona and Paul discuss the power sector’s role in the energy transition, the growing prominence of hydrogen and energy storage, collaborating with customers and stakeholders and setting a path toward a decarbonization of the power grid.

To attend this exclusive fireside chat, register here.

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Our latest summary of some recent developments in the courts and the federal agencies includes a unique case involving salt marshes adjacent to San Francisco Bay.

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In this summary of recent developments in environmental and regulatory law, venues are challenged, standing is upheld, statutory exemption is disputed and more.

THE U.S. SUPREME COURT

Change Must Come from Within … Maryland?
As the new term begins, the Court has agreed to review BP PLC v. Mayor and City Council of Maryland, a decision of the U.S. Court of Appeals for the Fourth Circuit which held that a climate change damages case filed against many energy companies must be heard in the state courts of Maryland and not the federal courts. The petitioners argue that the federal office removal statute authorizes such removal, and the Fourth Circuit’s contrary decision conflicts with rulings from other circuit courts.

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As the end of summer approaches, the courts have provided a potpourri of relevant environmental decisions.

FEDERAL COURTS OF APPEAL

Town of Weymouth, et al. v. Massachusetts Department of Environmental Protection (MDEP)
On August 31, 2020, the U.S. Court of Appeals for the First Circuit issued an opinion revising the mandate of its earlier June 3, 2020, ruling in the case. In the earlier ruling, the court vacated the grant by the MDEP of an air permit to Algonquin Gas Transmission to build and operate an air compressor station, ordering the agency to “redo” its Best Available Control Technology analysis within 75 days. Algonquin asked the court to reverse without vacatur because the agency could not comply within the time limits established by the court. The First Circuit agreed, and established a new deadline for the agency of January 19, 2021.

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The last few weeks have yielded a number of interesting developments in the Federal courts.

FEDERAL COURTS OF APPEAL

In re Flint Water Cases
Several local and State of Michigan officials, including the former governor, requested dismissal from the civil litigation seeking damages for the massive failure of Flint, Michigan’s public drinking water system. On August 5, 2020, the U.S. Court of Appeals for the Sixth Circuit agreed that the plaintiffs, residents of Flint, have successfully pled a case that the conduct of the defendants so “shocked the conscience” that a claim for a violation of their substantive due process rights was appropriately alleged. The defendants, including the former governor, argued that they were entitled to a qualified immunity defense. The court rejected this argument on the basis of the earlier decisions made by the court in this matter. Judge Sutton concurred because he was bound by this precedent, but remarked that the evidence for the governor’s culpability was very thin; he was not intimately connected to the extraordinary error in judgment. The majority was very upset with this concurrence as indicted by their own opinion.

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Some very interesting and fairly complex environmental law rulings have been released in the past few days.

U.S. Supreme Court—Trump, et al. v. Sierra Club, et al.

On July 31, 2020, in a 5-to-4 decision, the Supreme Court denied a motion to lift the stay entered by the Court a few days earlier. The earlier action stayed a preliminary injunction issued by the U.S. District Court for the Northern District of California, which had enjoined the construction of a wall along the Southern Border of the United States which was to be constructed with redirected Department of Defense funds. The merits will be addressed by the lower court and perhaps the U.S. Court of Appeals for the Ninth Circuit.

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As one would expect, the 110-page document released by the Biden campaign of policy recommendations reached by its joint task forces with supporters of Sen. Bernie Sanders includes  a number of energy and environmental policy statements.

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Our latest look at the judiciary is focused mainly on the federal appeals system, with a side of regulatory development thrown in for good measure.

The U.S. Court of Appeals for the Third Circuit—Baptiste et al. v. Bethlehem Landfill Company
In this case, decided on July 13, 2020, the plaintiffs, neighbors of the Bethlehem Landfill, claimed that the operations of the landfill seriously interfered with the enjoyment of their homes, and resulted in a loss in their property values because of noxious odors. The lawsuit was grounded in Pennsylvania common law torts—public nuisance, private nuisance and negligence. The landfill is located on 224 acres and receives tons of waste on a daily basis which, as it decomposes, generates extremely noxious odors that are allegedly unbearable. The plaintiffs have asked for $5 million in property damages and other relief. The landfill is subject to extensive regulation by the Pennsylvania Solid Waste Disposal Act, and the rules of the Pennsylvania Department of Environmental Protection. However, since the statute does not provide a private right of action, the plaintiffs have resorted to the state common law remedies. The lower court dismissed the lawsuit, a decision the Third Circuit has now reversed. The appeals court held that the complaint was well pleaded and the case should be tried. The court noted some environmental justice concerns, but did not rely on these factors. The case was remanded to the trial court.

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Here’s a report on several new decisions made over the past few days.

U.S. SUPREME COURT

U.S. Army Corps of Engineers v. Northern Plains Resources Council
On July 8, 2020, the Court has issued a partial stay of the decision of the U.S. District Court for Montana, which had held that the nationwide use by the Corps of Engineers of its Nationwide Permit 12 to permit oil and gas pipelines must be vacated because the Corps, when it reissued these permits in 2012, failed to follow the requirements of the Endangered Species Act. The breadth of this ruling seems to have surprised and alarmed many past and perspective permittees of the Corps. The stay will not apply to the ongoing Ninth Circuit litigation.

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Several interesting decisions have recently been made by federal and state courts.

FEDERAL APPELLATE COURTS

The U.S. Seventh Circuit Court of Appeals – ARCO Shifts from State to Federal and No Vigor for VIM
On June 18, 2020, the court decided the case of Baker, et al. v. ARCO, holding that the revised federal removal statutes authorize the removal to federal court of a state-filed complaint against several defendants by the former residents of an Indiana housing complex who contended that the defendants were responsible for the industrial pollution attributed to the operations of a now-closed industrial plant. The housing complex was constructed at the site of the former U.S. Smelter and Lead Refinery. During the Second World War, the plant produced products for the use of the government war effort, thus triggering the applicability of the federal removal statutes.

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