Articles Posted in Environmental

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On April 12, a significant Clean Water Act (CWA) ruling has been made by the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit, in a split decision, held, in a case of first impression in this circuit, that the movement of a discharged pollutant through groundwater to navigable waters can constitute a violation of the CWA’s requirement that discharges of a pollutant from a point source to navigable waters is illegal unless the discharge has been permitted. The case is Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, LP.

A few weeks ago, a similar decision was rendered by the U.S. Court of Appeals for the Ninth Circuit in the case of Hawai’i Wildlife Fund, et al., v. County of Maui.

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On May 2, the U.S. Court of Appeals for the Ninth Circuit decided the case of Daniels Sharpsmart, Inc. v. Smith, Director of the California Department of Public Health. The Ninth Circuit affirmed the decision of the U.S. District Court for the Eastern District to issue a preliminary injunction enjoining state health officials from enforcing, on an extraterritorial basis, provisions of the California Medical Waste Management Act (MWMA) against Daniels Sharpsmart, Inc., an Illinois-based corporation that “designs, develops, manufactures, markets and sells reusable sharps container systems for the disposal of needle-inclusive biohazardous medical products” (Daniels).

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On April 27, the U.S. Court of Appeals for the Ninth Circuit held, in the case of California Dep’t of Toxic Substances Control v. Westside Delivery, LLC, that a purchaser of land at a California tax sale was not entitled to the third party defense for clean-up costs contemplated by the Comprehensive Environmental Response, Compensation, and Liability Act’s (CERCLA), known also as Superfund. The Ninth Circuit concluded that The panel concluded that Westside Delivery, LLC (Westside) had a “contractual relationship” with the pre-tax-sale owner of the property and that the previous owner caused contamination of the site “in connection with” its contractual relationship with Westside. The case has been remanded for further proceedings.

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The latest ruling in the long-running environmental insurance case, Olin Corporation v. Lamorak Ins. Co., was released on April 18, 2018, by Judge Rakoff of the U.S. District Court of the Northern District of New York. Judge Rakoff granted motions for summary judgment filed by Olin Corporation (Olin) and The London Market Insurers, and awarded Olin $55M for its claims against Lamorak Insurance Company (Lamorak).

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On April 20, the U.S. Court of Appeals for the Federal Circuit decided the case of St. Bernard Parish Government, et al., v. U.S., reversing a decision by the U.S. Court of Federal Claims. The Court of Claims had found that a Constitutional compensable “taking” had occurred with respect to the owners of real property located in St. Bernard Parish and the Lower Ninth Ward of the City of New Orleans, whose properties had been damaged as a result of the damage wrought by Hurricane Katrina and other recent hurricanes.

“In summary, we conclude that the allegations of government inaction do not state a takings claim, and that plaintiffs have not established that the construction or operation of MRGO caused their injury.”

This could be a very important ruling affecting many thousands of Texas and Southeastern United States claims that are being filed in the Court of Claims in the wake of Hurricane Harvey.

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Recent federal court rulings illustrate how the courts are serving as an umpire sometimes restraining the government and litigants.

On April 11, the U.S. Court of Appeals for the Eighth Circuit issued a ruling, in Kuehl, et al., v. Sellner, et al., affirming the District Court’s decision which held that the defendants had violated the Endangered Species Act (ESA) in their operation of the Cricket Hollow Zoo (a licensed facility), located in Manchester, IA. The plaintiffs, which included the Animal Legal Defense Fund, sued the Sellners alleging that the conditions in which some endangered species (lemurs and tigers) were housed in the zoo amounted to a mistreatment of these endangered species.

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Section 40416 of the Bipartisan Budget Act of 2018 temporarily reinstates the Oil Spill Liability Tax that expired on December 31, 2017 for the period beginning on March 1, 2018 through December 31, 2018. Section 4611 of the Internal Revenue Code has, for many years, imposed a tax of $0.09 cents per barrel on crude oil received at a refinery, and on petroleum products entered into the U.S. for consumption, use, or warehousing.

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Accelerating air permitting decisions will be very helpful to almost everyone in business. An important Presidential environmental policy memorandum dated April 12, 2018 directing the Administrator of the Environmental Protection Agency (EPA) to take specific actions to ensure efficient and cost-effective implementation of the U.S. National Ambient Air Quality Standards (NAAQS, pronounced \’naks\) program, including permitting decisions for new and expanded facilities, and with respect to the Regional Haze Program, was published in the April 16, 2018 edition of the Federal Register.

Briefly, the memo, acknowledgrd that the periodic statutory review of the NAAQS for the “criteria pollutants” (ozone, particulate matter, nitrogen oxides, sulfur oxides, lead and carbon monoxide) has resulted in delayed Clean Air Act State Implementation Plan (SIP) reviews and has also had the effect of making the processing of preconstruction permits to construct new manufacturing facilities or their modification much more difficult.

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On April 9, 2018, the heads of twelve Federal agencies and departments entered into a Memorandum of Understanding (“MOU”) committing their respective agencies to implement certain concepts and directives from Executive Order (“EO”) 13807,[1] the Trump administration’s effort to streamline environmental review and approval of major infrastructure projects. The signatory agencies are the Departments of the Interior, Agriculture, Commerce, Housing and Urban Development, Transportation, Energy, and Homeland Security, the Environmental Protection Agency, Army Corps of Engineers, Federal Energy Regulatory Commission (“FERC”), Advisory Council on Historic Preservation, as well as the Federal Permitting Improvement Steering Council. These agencies frequently are involved in large-scale, complex infrastructure projects, such as traditional and renewable energy facilities and interstate pipelines; highway and bridge improvements, and transportation projects. While much of the MOU recites requirements previously set forth in the EO, it adds details and deadlines regarding interagency coordination, communication and dispute resolution in order to carry out the EO’s “One Federal Decision” concept and the goal of completing environmental review under the National Environmental Policy Act (“NEPA”) within two years.

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On April 9, the U.S. Court of Appeals for the Ninth Circuit, in a unanimous opinion, rejected the challenges to the U.S. Army Corps of Engineers’ (Corps) decision to issue a Clean Water Act (CWA) Section 404 permit to the Newhall Land and Farming Company (Newhall), which is planning a large residential and commercial project in Los Angeles County near Santa Clarita, CA (the Newhall Ranch project). The Newhall Ranch project, which involves the discharge of dredge and fill materials into the Santa Clara River, has been scaled back and modified, and the Ninth Circuit held that it is consistent with the CWA, the Corps’ regulations and procedures, as well as the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA). The Ninth Circuit provides an excellent primer on the Section 404 permitting process. The case is Friends of the Santa Clara River v. U.S. Army Corps of Engineers.

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