In Americans for Clean Energy, et al v. EPA, decided July 28, 2017, the U.S. Court of Appeals for the District of Columbia 
Circuit upheld the Environmental Protection Agency’s (EPA) 2015 rule establishing renewable fuel volume obligations for the years 2014 through 2017, with one exception: the court held that EPA cannot consider demand-side constraints in setting annual renewable fuel volumes.
Balancing the interests of the Federal Government as owner of thousands of acres surrounding Crooked Lake and private owners’ rights, on July 26, 
in a 2 to 1 ruling, the U.S. Court of Appeals for the Sixth Circuit ruled that the U.S. Forest Service exceeded its authority when issuing rules restricting recreational use of Crooked Lake. The federal legislation acquiring the property for the Federal Government contained a provision protecting “valid existing rights.” According to the Court of Appeals, relevant Michigan law established such an existing right, granting owners of property surrounding the lake the right to reasonable use of the lake, and this law must be respected. The case is Herr v. U.S. Forest Service, et al.
On July 17, the U.S. Court of Appeals for the Second Circuit decided the case of Olin Corporation v. OneBeacon America Insurance Company, an environmental insurance recovery lawsuit. Olin Corporation has filed such lawsuits against several of its insurance carriers with respect to the contamination indemnification claims generated by Olin Corporation’s ongoing cleanups at its manufacturing facilities around the country. The Court of Appeals affirmed Olin Corporation’s right to recover and also agreed with OneBeacon America Insurance Company (OneBeacon) that the U.S. District Court for the Southern District of New York should have factored in the “prior insurance provision” of OneBeacon’s policies “thereby reducing the limits of its policies by those of any prior policies covering the same loss.”
The 2016 Term of the U.S. Supreme Court was fairly quiet, perhaps reflecting the fact that with only eight members, the 
Court needed a working consensus to handle its docket. The Court handed down seventy rulings, but only a few can be described as bearing on environmental or administrative law. A few rulings importantly concerned the operation of federal agencies and their enforcement authorities.
On July 19, the U.S. Court of Appeals for the Third Circuit decided an important case involving oil and gas producers, intermediaries, and the ultimate purchasers of the oil and gas. The case, a bankruptcy matter, is In re: SemCrude, LP, et al.
The appellants, many oil and gas producers located in Texas, Oklahoma and Kansas, sold their product to SemCrude, L.P. (SemCrude), a “midstream” oil and gas service provider, who then sold oil to and traded oil futures with downstream oil purchasers. SemCrude’s unsuccessful futures trading activities cause the company to become insolvent and enter into bankruptcy. However, the producers had taken no steps to protect themselves in case SemCrude went bankrupt in contrast to the downstream purchasers. As a result, when SemCrude filed for bankruptcy, the downstream purchasers were paid in full, and more than a thousand producers were unpaid.
In 1971, the citizens of Pennsylvania overwhelmingly approved a proposed amendment to the Commonwealth of Pennsylvania’s Constitution’s Declaration of Rights, now known as the “Environmental Rights Amendment” (ERA). The amendment provides:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
On June 20, 2017, the Supreme Court of Pennsylvania, in Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania and Governor Tom Wolf, held , in a 4 to 32 ruling, that two 2009 fiscal laws passed by the legislature were facially unconstitutional under the ERA because they did not provide that all funds generated by royalties from the leasing of state lands for the exploration and production of oil and gas were wholly directed to the protection and preservation of the Commonwealth’s public natural resources.
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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.
On July 6, the California Supreme Court issued its highly anticipated decision in Lynch v. California Coastal Commission (case no. S221980). In this case, coastal homeowners alleged that, in issuing a permit to construct a protective seawall, the California Coastal Commission imposed unconstitutional conditions. In particular, the plaintiffs objected to the permit being limited to a 20-year term, after which they could be required to remove the seawall. However, to the disappointment of many who closely watched the case (as well as the plaintiffs), the Court declined to reach constitutional issues. Instead, the Court ruled that the homeowners waived their objection to permit conditions by constructing the seawall prior to the resolution of litigation.
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.
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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