Articles Posted in Environmental

In Ouachita Watch League, et al., v. U.S. Forest Service, et al., decided May 30, the U.S. Court of Appeals for the Eighth Circuit dismissed for lack of jurisdiction an appeal of the District Court’s ruling that the plaintiff environmental groups could not obtain injunctive relief to stop further mineral leasing in the Ozark National Forest in Arkansas. It reasoned that insofar as the organizational plaintiffs relied on the generalized affidavit of the President of the Ozark Society to establish standing,  the affidavit fails to allege that a “particular member has a specific plan to use that forest” and consequently “there is no case or controversy before us, and we lack authority to adjudicate this dispute.”

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Litigating parties may be so invested in the rightness of their cause that they neglect to check the calendar, and the relevant stature of limitations. On May 19, the Texas Supreme Court decided the case of  Town of DISH, et al., v. Atmos Energy Corp., et al. Reversing the Seventh Court of Appeals, sitting in Amarillo, TX, the Court reinstated the summary judgment ruling of the trial court which dismissed the Town of DISH’s and some of its residents’ complaint regarding the operations of the energy companies located just outside the Town of DISH and within a half-mile of the residents’ properties as time-barred. The Court recognized that

Claims for nuisance “normally do not accrue when a potential source is under construction,” but “once operations begin and interference occurs, limitations runs against a nuisance claim just as any other.” Trespass claims are no different. And although completion of construction is not dispositive of an accrual date, it is a logical starting point, as “plaintiffs will usually know of unreasonable discomfort or annoyance promptly.”

(Internal citations omitted).

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On May 4, the U.S. District Court for the District of Columbia issued a “Deepwater Horizon” ruling in Center for Biological Diversity v. Zinke. The Center for Biological Diversity’s (Center) claims concerns the Department of the Interior’s (Department) ongoing review of its “categorical NEPA exclusions” with respect to offshore oil and gas operations, which are subject to the Department’s scrutiny. The District Court dismissed the Center’s lawsuit, holding that the Center was unable to prove that the Department failed to take an action that is both discrete and mandatory under the Administrative Procedure Act (APA). Also, the District Court’s review of the pertinent Council on Environmental Quality (CEQ) regulations indicated that the rule, as properly construed, does not require agencies to complete their review of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370h (NEPA), procedures even after they have embarked on such a review.

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The Consolidated Appropriations Act of 2017 authorized appropriations for the Fiscal Year 2017. This large and copious bill provides funding for all Federal agencies for this fiscal year. The Congressional committees included many environmental policy statements and directives to these agencies.

Section II, Division G—The Departments of the Interior, the Environment and Related Agencies

Within 60 days, the Department of Interior (Interior), Environmental Protection Agency (EPA) and U.S. Forest Service (Service) are directed to provide the House and Senate Committees on Appropriations with a detailed Equal Access to Justice report which will make their litigation costs transparent.

Regarding new Executive Order 13783, the Committees expect Interior and EPA to keep the committees fully appraised of any actions taken to comply with this new Order affecting domestic energy resources.

The Committees expect the departments and agencies to provide their Inspectors General with timely access to all appropriate agency records as needed.

The departments and agencies are reminded that there can be no lobbying of Congress with appropriated funds.

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In a very complex, hard-fought case, U.S. District Judge David Hittner discusses how the Texas Commission on Environmental Quality’s (TCEQ) regulatory affirmative defenses to alleged Clean Air Act (CAA) violations will be viewed by the courts, if not the regulatory agencies. Environment Texas Citizen Lobby, Inc., et al., v. ExxonMobil Corp., et al. involves the complex regulatory regime that any large industrial facility must follow—whether it is a chemical plant, a refinery, steel mill, automotive assembly plant— if they have air emissions that must be regulated. In addition, these facilities must adhere to strict reporting rules, where evidence of non-compliance can often be found by litigants without a lot of hard work. A defense to some of these complaints lies in the fact that regulatory authorities will exercise prosecutorial discretion—by rule—when no one can control emissions during an unplanned upset (i.e., accident, natural disaster, etc.) or a planned shutdown for plant maintenance. ExxonMobil’s “Act of God” defense might have worked, it seems, if Texas had properly incorporated that state requirement in its federal State Implementation Plan (SIP). It should be noted that large scale construction projects necessitate many state and federal permits, and now there are federal laws and regulations to expedite the federal review—and new Executive Orders to reinforce that policy.

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On April 28, the Texas Supreme Court, affirming the Court of Appeals of Texas, First District, sitting in Houston, issued a unanimous ruling in the case of Forest Oil Corporation v. El Rucio Land and Cattle Company, Inc., et al. This case involves claims for environmental contamination caused by oil and gas operations on the land of the McAllen Ranch, whether the Texas Railroad Commission (TRC) has primary jurisdiction to respond to these claims, and whether the court should overturn the decision of an arbitration panel the parties earlier agreed to in order to resolves their disputes. The Texas Supreme Court held that there is nothing in the Texas Water Code and other statutory provisions that gives the TRC primary jurisdiction over oil and gas contamination disputes if the parties exercise their common law remedies in court. This decision is an important statement of the Texas Supreme Court’s views on primary agency jurisdiction when the courts themselves have broad jurisdiction to decide these matters.

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On April 18, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s ruling in a Louisiana case that dismissed the plaintiff’s claims for property damage based on contamination caused to his property by long-term oil and gas operations conducted by the predecessors of Hess Corporation. The case is Guilbeau v. Hess Corporation.

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