Articles Posted in Environmental

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On March 1, the U.S. Court of Appeals for the District of Columbia decided National Parks Conservation Assoc. v. Todd T. Simonite, Lieutenant General, et al. The case involves an application to the U.S. Army Corps of Engineers (Corps) for a construction permit to build electric power lines over the “historic James River, from whose waters Captain John Smith explored the New World.”

The Corps concluded after reviewing the thousands of comments submitted to it in connection with this application, and after considering the views of several government agencies and conservation groups, that an Environment Impact Statement (EIS) was not required, and that its Environmental Assessment assured the Corps that the project would not result is significant environmental impacts. The Court of Appeals has concluded that, based on this evidence, the Corps’ refusal to prepare an EIS thoroughly discussing all these points was arbitrary and capricious. The Corps has been ordered to prepare the EIS and to take special note of its obligations under the National Environmental Protection Act (NEPA), the Clean Water Act (CWA) and its obligations under the National Historic Preservation Act.

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On February 15, the U.S. Court of Appeals for the Fourth Circuit decided Norfolk Southern Railway Co. v. City of Roanoke, et al.; the Chesapeake Bay Foundation was an Intervenor-Defendant. The Fourth Circuit held that a large stormwater management fee (stated to be $417,000.00 for the year 2017) levied by the City of Roanoke against the railroad to assist in the financing of the City’s permitted municipal stormwater management system was a permissible fee and not a discriminatory tax placed on the railroad.

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Prior to deciding whether to review an important February 1, 2018, U.S. Court of Appeals for the Ninth Circuit decision involving the jurisdictional reach of the Clean Water Act (CWA), Hawai’i Wildlife Fund, et al., v. County of Maui, the Supreme Court asked the Solicitor General for the views of the U.S. on the holdings of this case and the April 12, 2018 U.S. Court of Appeals for the Fourth Circuit decision, Upstate Forever, et al., v. Kinder Morgan Energy Partners, L.P., et al.

On February 19, the Supreme Court confirmed that certiorari was granted to Question 1 presented by the Petition,

Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. (33 U.S.C. § 1362 (12)

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On February 14, the U.S. District Court for the District of Columbia dismissed the complaint of the National American Butterfly Association (NABA) alleging that the U.S. Government’s border wall preparation and law enforcement activities at NABA’s National Butterfly Center, located in South Texas along the Rio Grande River, violated federal environmental laws (National Environmental Policy Act (NEPA)) and the Endangered Species Act (ESA)) as well as NABA’s constitutional rights. The case is National American Butterfly Association v. Nielsen, et al.

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On February 11, the U.S. Court of Appeals for the Ninth Circuit affirmed the District Court’s decision to grant a motion for summary judgment disposing of a complaint that the decision of the Secretary of Homeland Security (DHS) to expedite construction of border barriers in the San Diego and Calexico, CA border crossing areas was inconsistent with the Secretary’s powers under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as well as  the National Environmental Policy Act (NEPA) and other authorities. The case is In Re Border Infrastructure Environmental Litigation (Center for Biological Diversity, et al., v. U.S. Department of Homeland Security, et al.).

“As a threshold matter, we have jurisdiction to consider the ‘predicate legal question’ of whether IIRIRA authorizes the contested projects. Because the projects are statutorily authorized and DHS has waived the environmental laws California and the environmental groups seek to enforce, we affirm the district court’s grant of summary judgment to DHS.”

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On February 8, the U.S. District Court for the District of Columbia issued its latest ruling in a case which challenges the President’s January 30, 2017 Executive Order constraining the ability of federal agencies to issue new regulations and the Office of Management and Budget’s (OMB) implementation of that Order. The case is Public Citizen, Inc., et al. v. Donald J. Trump, President of the United States, et al. The District Court has not yet been convinced that the petitioning plaintiffs have standing to make this challenge to this Order, and its mandate that two existing rules be eliminated for each new rule promulgated.

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A Resolution has been proposed to the House for consideration that would recognize the Federal Government’s duty “to create a Green New Deal.”  It sets forth a very ambitious 10-year program to mobilize and transform every aspect of American life to combat the threats of climate change by transitioning to an economy based upon 100% clean and renewable energy.

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On February 4, the U.S. District Court for the District of Columbia held, in a Clean Air Act (CAA) Citizen Suit, that the U.S. Chemical and Safety Hazard Board (Board), an independent federal agency, has violated the Administrative Procedure Act (APA) by failing to promulgate the accidental release reporting rules required by Section 112(r )(6)( c )(iii) of the CAA. The Board was established by the 1990 Clean Air Act Amendments of 1990, but has failed in all these years to issue these rules. The case is Air Alliance Houston, et al., v. U.S. Chem. and Safety Hazard Investigation Bd.

As relief, the District Court directed the Board “to promulgate reporting regulations within 12 months of the date of the District Court’s order.”

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On January 25, the Texas Supreme Court issued a unanimous ruling in the case of Anadarko Petroleum Corp. and Anadarko E&P Co. v. Houston Cas. Co., et al., characterized as an “interlocutory permissive appeal,” reversing the decision of the U.S. Court of Appeals for the Ninth Circuit, sitting in Beaumont, TX, regarding Anadarko’s insurers’ obligation to pay a significant amount of Anadarko’s legal defense costs that resulted from its liability in the Deepwater Horizon oil spill.

“[W]e hold that the Joint Venture Provision does not limit the Underwriters’ liability for Anadarko’s defense expenses insured under section III.”

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Recently, our colleagues Amanda Halter, Stella Pulman and Ashleigh Acevedo published their Client Alert titled BSEE Decommission-in-Place Discussions Present Opportunity discussing the Department of Interior’s Bureau of Safety and Environmental Enforcement’s (BSEE) Request for Information Regarding Potential Impacts of Decommissioning-in-Place of Pipeline-Related Infrastructure in Deepwater.  Takeaways include:

  • BSEE is asking for input on technical, safety and environmental and other factors that should be included as decom-in-place decision-making considerations for pipeline infrastructures in deepwater on the Outer Continental shelf (OCS).
  • Companies with potentially affected assets have an opportunity to advance more predictable and holistic decision-making by commenting on whether and under what circumstances the BSEE should allow decommissioning-in-place of these pipeline-related infrastructures.