Articles Posted in Environmental

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Another important case was decided by U.S. Court of Appeals for the D.C. Circuit on July 6, American Rivers and Alabama Rivers Alliance v. FERC. The Alabama Power Company, whose application to re-license its electrical power generating facility serving Coosa River Basin in Alabama, GA, and TN was at issue, is an Intervenor in the case. In 2013, FERC granted Alabama Power a 30 year renewal license to operate this plant, consistent with some new conditions attached to the renewed license. This action was challenged before the FERC by these petitioners, but FERC denied their requests for reconsideration. They argued that FERC, in re-licensing this facility, violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The Court of Appeals , noting that the ecosystem was in a “fragile condition” after decades of power plant operations and development, agreed with the plaintiffs that the actions taken by FERC and as supported by a Biological Opinion of the U.S. Fish and Wildlife Service (Service), were in violation of these statutes. FERC’s licensing decision was vacated and the matter was remanded to FERC.

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On June 27, the U.S. Court of Appeals for the Seventh Circuit decided the case of Orchard Hill Building Co. v. U.S. Army Corps of Engineers. The Court of Appeals vacated the decision of the District Court granting the U.S. Army Corps of Engineers’ (Corps) motion for summary judgment dismissing the Orchard Hill Building Company’s (Orchard) complaint that the Corps’ jurisdictional determination erroneously found that the waters at issue were “jurisdictional waters” under the Clean Water Act (CWA) subject to the Corps’ jurisdiction. Acknowledging that the Corps and EPA had promulgated a new rule re-defining “waters of the United States” in 2015—which is now being challenged in the courts—the Court of Appeals noted that this case is controlled by the pre-2015 definition of “waters of the United States.” The Court of Appeals remanded the case to the Corps, directing it to determine if there was a significant nexus, as required.

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On June 28, the U.S. Court of Appeals for the Ninth Circuit decided the case of Center for Biological Diversity, et al., v. Export-Import Bank of the U.S., affirming the ruling of the District Court, which granted Export-Import Bank of the United States’ (Ex-Im Bank) summary judgement motion finding that, “as a threshold matter,” the plaintiff environmental groups lacked standing to pursue either of their National Historic Preservation Act (NHPA) or Endangered Species Act (ESA)] claims. On appeal, the Ninth Circuit held “that the action is not moot [but] affirm the district court on the question of standing.”

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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.”

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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.”

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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.

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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.”

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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.

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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.

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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).

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