On June 25, the Environmental Protection Agency (EPA) issued a Notice of Proposed Rulemaking (NPRM) (83 F.R. 29499 (June 25, 2018)) regarding Clean Water Act Hazardous Substances Spill Prevention.
“EPA has determined that the existing framework of regulatory requirements serves to prevent CWA HS discharges.”
On June 22, the Texas Supreme Court decided an important environmental case, City of Laredo, TX v. Laredo Merchants Assoc. Without dissent, the Court held that the City of Laredo’s 2014 ordinance, enacted to create a “trash-free” city, was preempted by the Texas Health & Safety Code and, in particular, Section 361.0961(a)(1)). The “local antilitter ordinance prohibit[s] merchants from providing ‘single use’ plastic and paper bags to customers for point-of-sale purchases.”
On June 20, the U.S. Court of Appeals for the Fourth Circuit decided what be a very important decision for companies with mining interests in West Virginia, impacting their ability to comply with the Clean Water Act (CWA). Ohio Valley Environmental Coalition, et al., v. Pruitt, Administrator of EPA involves claims by several environmental groups against the Environmental Protection Agency (EPA) alleging that EPA failed to perform its nondiscretionary duty under the CWA to promulgate pollutant limits for biologically impaired waters in West Virginia. Although it found that the environmental plaintiffs have standing, the Court of Appeals reversed the District Court’s order granting summary judgment in their favor.
On June 20, 2018, the U.S. Court of Appeals for the Fourth Circuit decided the case of In re: KBR, Inc. Burn Pit Litigation, affirming the ruling of the U.S. District Court for the District of Maryland that the “political question” doctrine bars the plaintiff servicemembers’ personal injury lawsuits against Kellogg Brown & Root and Halliburton (KBR), government contractors providing environmental services to the U.S. military in Iraq and Afghanistan.
“The Constitution entrusts the President and Congress, not the courts, with the power to resolve political questions.”
On May 19, 2017, the Ninth Circuit, United States v. Washington, affirmed the District Court’s ruling that the State of Washington, in building and maintain culverts that interfered with the Nineteenth Century Treaties with several Indian tribes, violated those treaties, which impelled the District Court to issue an injunction ordering the State of Washington to correct its “offending culverts.” The U.S. Supreme Court agreed to hear the State’s appeal, and on Monday, the Court held that, with Justice Kennedy’s deciding not to take part in the appeal, the Ninth Circuit’s ruling was affirmed by an equally divided court.
On May 24, the U.S. Court of Federal Claims decided one of what may be many cases involving the terrible flooding wrought by Hurricane Harvey in the Houston, TX region. The Court of Federal Claims has divided thousands of pending claims into “upstream” and “downstream” categories, depending on whether the flooded properties were located upstream or downstream of two U.S. Army Corps of Engineers (Corps) flood control reservoirs that were constructed in the 1940s and 1950s. The case is In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs; however, the Court of Federal Claims’ order in this case applies to “all upstream cases.”
The Court of Federal Claims ruled
“The intensely factual nature of takings cases in flooding situations necessarily intertwines questions of jurisdiction and the merits. Thus the court has decided to exercise its discretion under [Rules of the U.S. Court of Federal Claims] 12(i) to defer ruling on the government’s motion to dismiss until trial.
On May 18, the U.S. Court of Federal Claims decided the case of Gadsden Indus. Park, LLC v. U.S., ruling that the Environmental Protection Agency (EPA) was responsible for the “taking” of byproduct materials produced by the steel making process and later purchased by plaintiff Gadsden Industrial Park (GIP) in a bankruptcy sale. The Court of Federal Claims held that GIP was entitled to compensation in the amount of $755,494 (together with interest).
On June 4, 2018, the U.S. Court of Appeals for the Ninth Circuit decided the case of Hodsdon v. Mars, Inc., and affirmed the District Court’s dismissal of the plaintiff’s claims that, under California law (the Consumer Legal Remedies Act, the unfair competition law, Bus. & Prof. Code §§ 17200, et seq., and the false advertising law, Bus. & Prof. Code §§ 17500, et seq.), the defendant chocolate maker had a duty to disclose on its product labels that its goods were possibly being produced by child or slave labor.
On June 5, the U.S. Court of Appeals for the Seventh Circuit decided the case of Highway J Citizens Group, et al., v. U. S. Department of Transportation. The Seventh Circuit affirmed the District Court’s oral ruling that the Wisconsin highway renovation project was subject to the U. S. Department of Transportation (USDOT) National Environmental Policy Act (NEPA) “categorical exclusion” rule, meaning that the 141-page environmental report produced for USDOT for this small scale project–which determined that it was unnecessary to prepare a formal environmental impact statement–was legally sufficient. USDOT concluded that the construction of this project would not have any significant environmental impacts. Moreover, whenever someone opposes a project, the law only requires that an appropriate environmental study be prepared, and this lengthy report satisfies that standard.
On June 4, the U.S. Court of Appeals for the Seventh Circuit decided the case of John Crane, Inc., v. Shein Law Center, LTD and Benjamin Shein, et al., and affirmed the lower court’s ruling in favor of the defendants. The plaintiff filed a lawsuit in the U.S. District Court for the Northern District of Illinois alleging that the defendants were engaged in a conspiracy to defraud the plaintiff, a company that has manufactured products containing asbestos, and has been sued many times. In this case, the defendants filed lawsuits against the plaintiff in California, Pennsylvania and Texas, but the plaintiff alleged that the defendant law firm abused the discovery process regarding their clients’ exposure to asbestos from other manufacturers to “extort larger recoveries.” While the Court of Appeals acknowledges these claims are serious, it found that the District Court had no jurisdiction over the defendants, and this lawsuit must be dismissed.
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