Articles Posted in Environmental

Today, our colleagues Kevin Ashe and Rebecca Lee published an alert on the Environmental Protection Agency’s recent listing of certain chemicals as subject to review for risks to human health and to the environment.  EPA’s actions follow recent amendments to the Toxic Substances Control Act requiring it to timely complete risk assessments for chemicals manufacture, distributed and imported to the U.S. They encourage companies with U.S. operations to consider the implications if they use chemicals that have been list or may be listed by the EPA. The alert is titled Toxic Substances Control Act Overhaul.

On November 23, 2016, the U.S. Court of Appeals for the Ninth Circuit issued a unanimous ruling that the Surface Transportation Board has exclusive jurisdiction over “railroad repair work done at the direction of a federally regulated rail carrier but performed by a contractor rather than the carrier itself.”  The case is Oregon Scenic Coast Railway, LLC v. State of Oregon Department of State Lands. Continue Reading ›

On November 18, the U.S. Court of Appeals for the Ninth Circuit issued three unanimous decisions affirming the U.S. District Court for the District of Hawaii’s rulings that three local county ordinances—enacted by the counties of Maui, Kauai and Hawaii—are preempted by the laws of the State of Hawaii or the federal Plant Protection Act (PPA), 7 U.S.C. § 7756(b). The ordinances purported to regulate pesticides and genetically engineered plants or even banning the cultivation and testing of genetically-engineered plants. The published opinions are Atay, et al., v. County of Maui, et al., and Syngenta Seeds, Inc., et al., v. County of Kauai. The unpublished opinion is Hawai’i Papaya Industry Assoc., et al., v. County of Hawaii.

The Maui County ordinance was the result of a citizens’ initiative, and the Kauai ordinance was enacted in the regular course of county business. In the Syngenta Seeds case, the Ninth Circuit ruled that the “field preemption” test devised by the Hawaii Supreme Court required the rejection of Kauai County ordinance. In the Atay case, the Ninth Circuit concluded that the provisions of the Maui County ordinance were preempted by both the PPA and impliedly by the laws of the State of Hawaii.

In the third case, the Ninth Circuit held that a recently-enacted ordinance of the County of Hawaii which bans the “open air testing of genetically engineered organisms of any kind” and “open air cultivation, propagation, development or testing of genetically engineered crops of plants” was preempted by federal and state law.

On November 16, the U.S. Court of Appeals for the Ninth Circuit decided the case of State of Missouri ex rel. Chris Koster, et al., v. Harris, in which it largely affirmed the lower court’s decision that the States of Missouri, Nebraska, Oklahoma, Alabama, Kentucky and Iowa lack standing to challenge the California laws and policies that mandate that no eggs can be sold in California that are the produced in states that do not adhere to California’s conditions under which chickens must be kept. One lesson to draw from this is that it’s very difficult to persuade the courts that the Commerce Clause always limits what the state legislatures can do. Continue Reading ›

On November 17, the U.S. Court of Appeals for the Sixth Circuit decided the case of Sherwood, et al. v. Tennessee Valley Authority.  The Court of Appeals reversed the lower court’s ruling that a complaint filed by many property owners that the Tennessee Valley Authority (TVA) violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 to 4370m–12 (2012) (NEPA) was now moot because TVA had filed assurances with the lower court that the policy had been suspended. Continue Reading ›

Environmental Protection Agency (EPA) recently released its “EJ 2020 Action Agenda.” EPA confirms that it will three basic goals:

1. Deepen the environmental justice (“EJ”) practice within EPA programs;
2. Work with it “partners” — other federal agencies and state and local governments — to advance EJ programs; and
3. Demonstrate progress in significant EJ challenges, namely, lead disparities, drinking water, air quality, and hazardous waste sites.

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On April 8, 2016, the Texas Court of Appeals, Third District, at Austin, issued an important decision interpreting the standard of review that applies to the judicial review of certain administrative enforcement orders issued by the Texas Commission on Environmental Quality (TCEQ). The case is TCEQ v. Exxon Mobil Corporation, et al., and involves the cleanup of the Voda Petroleum State Superfund Site (VPSSS).  The Court of Appeals held that the appropriate standard for the judicial review of the TCEQ’s order was the “preponderance of the evidence” test, where the TCEQ has the burden to prove the defendants are liable parties under the law. The TCEQ argued that the “substantial evidence” test was applicable. On October 31, 2016, following a motion for rehearing filed by the TCEQ, the Court of Appeals withdrew that opinion, and substituted a new opinion which essentially clarified the original ruling, and denied the TCEQ’s motion. Continue Reading ›

Affirming the district court, the U.S. Court of Appeals for the Ninth Circuit rejected claims that the environmental impact statement (EIS) adopted by the Tahoe Regional Planning Agency supporting the Regional Plan Update (RPU) failed to comply with the requirements of the Regional Planning Compact between California and Nevada (Compact). The case is Sierra Club, et al., v. Tahoe Regional Planning Agency, decided on November 2, 2016.

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A group of environmental organizations, headed by the Sierra Club, filed a Clean Water Act (CWA) citizen’s lawsuit against the BNSF Railway Company, alleging that the railroad, the only transporter of coal in Washington, illegally discharges coal and coal dust into the waterways of the State of Washington by virtually every one of its shipments of coal through the state. Motions for summary judgment were filed by both the plaintiffs and BNSF Railway. On October 25, the U.S. District Court for the Western District of Washington, seated in Seattle, in a significant ruling, denied both motions. The case is Sierra Club, et al., v. BNSF Railway Company.

The plaintiffs alleged that each and every train operated by BNSF Railway discharges coal pollutants into the waters of the United States without a CWA permit. The coal is allegedly discharged through holes in the bottoms and sides of the rail cars or emitted from the open tops of the rail cars and the train. BNSF Railway has denied these claims, and also argues that the CWA, in this instance, is preempted by the Interstate Commerce Commission Termination Act, 49 U.S.C. §§ 10101 et seq. (ICCTA).

With respect to BNSF’s argument that the plaintiffs do not have standing because they cannot use a limited number of waterbodies in a representative capacity to establish standing for all waterbodies in the State of Washington, the District Court noted that, at this stage, it was bound by a Ninth Circuit precedent, Alaska Center for the Environment, et al., v. Browner. The Ninth Circuit, in the 1994 Browner decision, held that a plaintiff seeking state-wide environmental relief was not required to demonstrate harm over the entire state, but was only required to establish that a representative number of areas were adversely affected by the Environmental Protection Agency’s (EPA) inaction, and that “for CWA regulatory purposes, all waters of the state were interrelated.”

The plaintiffs urged the District Court to find that there is no dispute that BNSF is liable for discharging coal into Washington’s waterways without a permit in violation of the CWA; and suggested that BNSF may have violated the CWA over 12 million times in the years 2012 through 2015 based on the number of trips that the BNSF railcars made during this period. The District Court was not convinced that the plaintiffs had demonstrated that BNSF operations were in violation of the CWA because it had not been established that “point source” discharges were involved. The defendant argued that coal emissions to land, coal emissions from land to water, and coal dust emissions are not point source discharges. On the one hand, the District Court agreed with this argument, holding that the plaintiffs “have not provided evidence that there was a discrete conveyance of coal into the water from coal that is deposited onto the land adjacent to the tracks.” Also, coal dust deposited in navigable waters from BNSF trains “is not a point source discharge unless there is a discrete conveyance.” On the other hand, the District Court concluded that direct discharges of coal and coal particles form the trains that travel adjacent to or above the waters at issue are point source discharges. Consequently, while some discharges are evidently violations of the CWA, the District Court declined to find the railroad liable for any CWA violations at this time because there are disputes of material fact that must be resolved at trial.

The District Court also declined to rule on BNSF’s ICCTA preemption argument at this time.