Articles Posted in Environmental

The first Resource Conservation and Recovery Act ( RCRA) solid waste definitional decision, the celebrated American Mining Congress v. EPA case, was decided exactly 30 years ago, and it reverberates to this day.

In American Petroleum Institute v. EPA, decided by the U.S. Court of Appeals for the District of Columbia on July 7, 2017, the Court of Appeals reviews the Environmental Protection Agency’s (EPA) latest effort to regulate the recycling of hazardous secondary materials in a way that is consistent with the RCRA. RCRA provides that only truly discarded materials can be solid wastes and perhaps regulated hazardous wastes. The Court of Appeals has now handed down its opinion, which, as befits RCRA, is very complex.

This is another decision that illustrates the powerful role the federal courts play in the proper interpretation of the environmental laws that apply to many industries, including the real estate and construction industries.

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On July 3, the U.S. Court of Appeals for the District of Columbia held, in a 2 to 1 decision, that the Environmental Protection Agency (EPA) lacked authority under the Clean Air Act (CAA) to issue a temporary stay of its new methane rule that had been promulgated in June 2016. This new rule, which affects many oil and gas producers, took effect on August 21, 2016. The case is Clean Air Act Council, et al. v. EPA.

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On June 30, the U.S. Court of Appeals for the District of Columbia issued an important ruing regarding the Environmental Protection Agency’s (EPA) regulation and registration of pesticides. The case is Center for Biological Diversity, et al. v. EPA, and it involves the intersection of the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The Court of Appeals granted the FIFRA petition, dismissed the ESA petition, and remanded the matter to EPA without vacatur for additional consideration by EPA. Remand “without vacatur” is a judicial remedy that permits the agency’s order or rule to remain in effect after they are remanded by the reviewing court for further agency proceedings. The dissenting judge argued that the plaintiffs had not satisfied their burden of proof to establish their right to maintain this lawsuit.

These decision illustrates the powerful role the federal courts play in the proper interpretation of the environmental laws that apply to many industries and commercial and industrial activities.

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On June 29, the U.S. Court of Appeals for the Fourth Circuit issued an important ruling in the case of Murray Energy Corp., et al., v. EPA. At issue was the duty of the Environmental Protection Agency (EPA) under Section 321 of the Clean Air Act (CAA) to conduct “continuing evaluations of potential loss or shifts of employment” which may result from EPA’s regulatory actions. The Court of Appeals reversed the District Court, holding that, properly construed, Section 321’s provisions are open-ended, and establish no start-dates, deadlines or any other time-related instructions to guide EPA’s continuous evaluation efforts. It reasoned that EPA is therefore left with considerable discretion in managing its continuous evaluations, and thus it is not a non-discretionary obligation placed on EPA that is susceptible to a lawsuit under Section 304 of the CAA. It found that the U.S. District Court for the Northern District of West Virginia was therefore without jurisdiction to decide this case.

This is another case that illustrates the powerful role the federal courts play in the proper interpretation of the environmental laws that apply to many industries, including the real estate and construction industries, as well as to commercial and industrial activities.

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A little lite reading for Friday. In the Matter of Nonhuman Rights Project, Inc.,  v. Lavery, decided June 8, 2017 by the New York Supreme Court, First Judicial Department, the Court considered the lower court’s judgment declining to extend habeas corpus relief to two adult male chimpanzees, Tommy and Kiko. The gravamen of the petitioner’s argument was that “chimpanzees are entitled to habeas relief is that the human-like characteristics of chimpanzees render them ‘persons’ for purposes of [The New York Civil Practice Law and Rules (CPLR)] article 70. A number of amicus briefs were filed with the court, including one by Laurence Tribe providing some perspective on the “long history” (chiefly from medieval times) of animals being tried for offenses such as attacking human being and eating crops. The Court found the petitioner’s position is without legal support or legal precedent.

These concerns may have their origin in Justice Douglas’ famous dissent in the case of Sierra Club v. Morton. In this case, the U.S. Supreme Court held that the Sierra Club had no standing to seek an injunction to restrain federal officials from approving an expansion of a skiing development in the Sequoia National Forest. Justice Douglas observed that

[T]the critical question of standing would be simplified and put neatly into focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where the injury is the subject of public outrage.

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Only a few existing federal environmental rules have been set aside or overturned by the new Administration, and these actions were taken by the Congress in accordance with the special procedures of the Congressional Review Act (CRA). The repeal, rescission, postponement, or modification of existing rules generally must be accomplished in accordance with the procedures of the Administrative Procedure Act (APA). However, some rules which were promulgated but not effective by January 20, 2017 were delayed, consistent with established policy, to give the Administration sufficient time to review the new rules they will be charged with implementing.

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On May 30, a panel of the U.S. Court of Appeals for the DC Circuit decided the case of Environmental Integrity Project, et al. v. EPA. Affirming the District Court, the Court of Appeals held that Exemption 4 of the Freedom of Information Act (FOIA) trumps Clean Water Act Section 308’s authorization to the Environmental Protection Agency (EPA) to disclose to the public certain commercial and financial information EPA had obtained from power plant operators.

Reviewing the text of both FOIA and the CWA, the Court of Appeals notes that Exemption 4 was enacted in 1967, or a few years before the CWA was enacted and concludes that FOIA’s exemptions, being part of the Administrative Procedure Act, cannot be supplanted by later-enacted legislation that does not expressly revoke that exemption.

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In an interesting decision by the U.S. District Court for the District of Columbia on May 22, the District Court again held that a Supplemental Environmental Impact Statement (SEIS) must be provided by the Federal Transit Administration (FTA) and the Maryland and local District of Columbia public transit officials regarding the planned expansion of the “Purple Line Project” into Maryland. The District Court considered whether FTA’s action was arbitrary and capricious, i.e., if it “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of  the problem, offered an explanation for a decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the  product of agency expertise.” The case is Friends of the Capital Crescent Trail, et al., v. FTA. Continue Reading ›