On Friday, March 9, the U.S. Court of Appeals for the Ninth Circuit issued another significant ruling in a Clean Water Act (CWA) Citizen Suit case. Affirming the District Court, the Ninth Circuit held
“pipes, ditches, and channels that discharge pollutants from non-concentrated aquatic animal production facilities are point sources within the meaning of 33 U.S.C. § 1362(14).”
The case is Olympic Forest Coalition v. Coast Seafoods Corp.
On March 12, the U.S. Court of Appeals for the Second Circuit issued a decision interpreting Clean Water Act (CWA) Section 401 and the Federal Regulatory Energy Commission’s (FERC) permitting authority, which may have settled some lingering legal issues for the construction of pipelines. The case is New York State Department of Environmental conservation, et al., v. FERC.
The Second Circuit considered two issues:
On March 5, the U.S. Court of Appeals for the Tenth Circuit issued a ruling that the general federal five-year statute of limitations which is applicable to the enforcement of any civil fines, penalties or forfeitures (28 U.S.C. § 2462) does not apply to a series of discrete misappropriations that occurred over many years. The case is SEC v. Kokesh. In reaching this conclusion, the Tenth Circuit referenced its own recent decision in Sierra Club v. Oklahoma Gas and Electric Co., a Clean Air Citizen Suit, involving Section 2462
On February 26, the U.S. District Court for the District of Columbia dismissed, for lack of jurisdiction, a challenge to the President’s Executive Order 13771, and two guidance documents issued by the Office of Management and Budget (OMB) that instruct the affected federal agencies on how to administer EO 13771. The case is Public Citizen, Inc., et al., v. Trump. However, the District Court stated it would hold another hearing (on March 1, 2018) to determine whether it should dismiss the complaint outright or give the plaintiffs an opportunity to amend their pleading.
On February 27, the U.S. District Court for the Northern District of California rejected motions filed by the cities of Oakland and San Francisco to remand two global warming public nuisance lawsuits filed by the cities in state court against several large energy companies (BP P.L.C., Chevron Corporation, ConocoPhillips Company, Exxon Mobil Corporation and Royal Dutch Shell plc). The case is The People of the State of California v. BP P.L.C., et al.
On February 27, the U.S. District Court for the Middle District of Louisiana granted a motion for a preliminary injunction filed by a group of environmental plaintiffs seeking to halt the construction of an oil pipeline in the Atchafalaya Basin in Louisiana, which has received Clean Water Act (CWA) permits from the U.S. Army Corps of Engineers (Corps). The case is Atchafalaya Basinkeeper, et al., v. U.S. Army Corps of Engineers.
On March 2, the U.S. Court of Appeals decided the case of Bethpage Water Dist. v. Northrop Grumman Corp., and affirmed the lower court’s dismissal on New York statute of limitations grounds, the Bethpage Water District’s (BWD) lawsuit seeking damages from Northrop Grumman Corporation (Northrop) for alleged volatile organic compounds (VOC) contamination of the aquifer from which BWD draws drinking water.
Today the U.S. Court of Appeals for the Ninth Circuit issued its opinion in In re United States of America. As summarized by the Ninth Circuit, “twenty one young plaintiffs” filed a complaint in the Portland, OR federal district court alleging that the defendant Executive Branch officials have known for many years that the burning of fossil fuels destabilizes the climate – contributing to climate change, violating their constitutional rights. The Government sought mandamus relief in the Ninth Circuit, “anticipating burdensome discovery,” and a stay of this litigation.
The Ninth Circuit denied relief, believing that it is best to let this litigation continue — at least for a while — and to more fully develop the record. The Ninth Circuit assures the Government that there are remedies available in the trial court and the Ninth Circuit if they are needed.
Here’s a brief report on recent Resource Conservation and Recovery Act (RCRA) developments:
1. On February 26, the Environmental Protection Agency published a Federal Register notice informing the public that it will submit to the Office of Management and Budget (OMB) an information collection request regarding the operation of four final 2015 revisions to the definition of solid waste regarding in particular the “generator-controlled exclusion”; the “verified recycler exclusion”; the manufacturing exclusion; and the revised speculative accumulation requirement.
Recently, the Trump Administration released a 53-page Legislative Outline for Rebuilding Infrastructure in America of legislative proposals to rebuild American infrastructure, which it defines as surface transportation, airports, passenger rail, ports and waterways, flood control, water supply, hydropower, water resources drinking water and waste water facilities, storm water facilities, and surprisingly, Brownfield and Superfund sites. Infrastructure projects can be located in both urban and rural areas.
The proposal lists specific laws that will require amendments, and would make available billions of dollars in federal funds to trigger the process. This is a brief review of its many provisions.
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