Articles Posted in Environmental

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The state and federal appellate courts have issued a surprising number of significant rulings in a variety of environmental and administrative law controversies in late July and early August:

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  • On August 8, the U.S. Court of Appeals for the Second Circuit issued a very long (127 pages) ruling  affirming in all respects the (400-page) opinion of the U.S. District Court for the Southern District of New York which found that a massive judgment obtained by the Ecuadorian plaintiffs against Chevron for alleged pollution in the Ecuadoran rain forest by Texaco many years ago was, in fact, procured by fraud. The case is Chevron Corporation v. Donzinger, et. al. The District Court enjoined Donzinger and his associates from seeking to enforce in the United States an $8.6 billion judgment; imposed a constructive trust for Chevron’s benefit on any property that Donzinger and his associates received that is traceable to this judgment or its enforcement; and held that the conduct of this litigation against Chevron violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (RICO) and also warranted relief under the common law of New York. The defendants-appellants argued that Chevron had no Article III standing to pursue this action, and that to uphold the judgment for Chevron would violate principles of international comity and judicial estoppel. This result confirms again the inestimable value of an independent, fearless judiciary, which is so sadly wanting in many areas of the world.

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Today, we published our alert Supreme Court’s Environmental and Administrative Law Decisions in 2015-2016 Term. ScotusStairsIn the Advisory, we provide a brief report on some of the significant U.S. Supreme Court actions from January through June 2016 related to environmental and administrative law.

*Pillsbury summer clerk Brittney Sandler made significant contributions to this article. Sandler is currently enrolled at Georgetown University Law Center where she serves as editor for the Georgetown Law Journal and as a legal research and writing fellow.

Photo:  Phil Roeder, Supreme Court of the United States, Taken March 15, 2011 – Creative Commons

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On July 29, 2016, the U.S. Court of Appeals for the DC Circuit released a very longno (156 pages) opinion essentially upholding every regulatory decision made by the EPA in three major Clean Air Act (CAA) rulemakings: the “Major Boilers Rule”; the “Area Boilers” rule; and the “Commercial/Industrial Solid Waste Incinerators” (CISWI) rule. The consolidated cases are United States Sugar Corporation v. EPA; American Forest & Paper Association, et al. v. EPA; and American Chemistry Council v. EPA. These new rules , according to the Court, “set emissions limits on certain combustion machinery known to release hazardous air pollutants (HAPs),” and each rule was promulgated on March 21, 2011.

 

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My colleagues Mark Elliott, Kevin Fong and I, in Lesson of Ninth Circuit CERCLA Decision: Prepare to Prove Recoverable Costs, discuss the lesson to be learned from the Ninth Circuit Court of Appeals’ June 13, 2016 decision in Whittaker Corp. v. United States. The Ninth Circuit held that a party which has settled its liability pursuant to a Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) section 107 cost recovery claim may recover any response costs not covered by the settlement under CERCLA section 107. This decision confirms that a responsible party is not necessarily limited to a claim for CERCLA contribution under section 113 merely because it has been sued under section 107. Although Whittaker does not present a sea change for CERCLA claims, it serves as a reminder that documentation and segregation of costs sought in a CERCLA action are important to simplify recovery and to preserve recovery options

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My colleague Matt Morrison today published a client alert titledairplane U.S. EPA Finds Greenhouse Gas Emissions from Aircraft Endanger Public Health—a First Step in Adoption of New ICAO Standards.  The Alert discusses the U.S. Environmental Protection Agency’s (EPA) issuance of a finding that aircraft greenhouse gas (GHG) emissions endanger public health and welfare in the wake of the International Civil Aviation Organization (ICAO) release of a draft rule in February of this year proposing a new standard for reducing GHG emissions in new and in-production commercial aircraft. The EPA’s finding is a prerequisite for new U.S. regulations setting standards for GHG emissions, which will be adopted after ICAO’s standard is finalized in March 2017.

Photo:  Ikarasawa, JA67AN, Taken December 21, 2013 – Creative Commons

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In the latest installment in this long-running dispute, the U.S. Court of Appeals for the DC Circuit today, in Mingo Logan Coal Company v. EPA, ruled, in a 2 to 1 decision, that EPA satisfied its duties under the Clean Water Act (CWA) and Administrative Procedures Act (APA) when it vetoed a 404 dredge and fill permit Mingo Logan Coal Co. received from the U.S. Army Corps of Engineers (Corps) in 2007 with the concurrence of EPA, only to have EPA exercise its veto power in 2011. Mingo Logan also received a 402 permit from the State of West Virginia pursuant to its delegated authority. The dispute has been the subject of two district court rulings and now two DC Circuit Court of Appeals rulings.

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July 15 was a busy day at the U.S. Court of Appeals for the District of Columbia Circuit, as five important decisions werethree issued. What was remarkable and worth noting is that Judge Judith Rogers, a member of the court since 1994, was the author of unanimous opinions in three very important administrative cases:

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Recently the U.S. Court of Appeals for the Fifth Circuit issued an important decision regarding the Clean Air Act (CAA) and the interactions between EPA and the states. On July 15, Fifth Circuit, in a unanimous ruling, granted a stay of the U.S. Environmental Protection Agency’s (EPA) Final Rule promulgated in 2016 (81 Fed. Reg. 296 (Jan. 5, 2016)). The Final Rule partially approved and partially disapproved the regional haze plans developed and submitted to EPA as a state implementation plan (SIP) by Texas and Oklahoma and replaced the disapproved SIP provisions with a Federal Implementation Plan. The EPA promulgated the Final Rule nearly seven years after Texas submitted its SIP and nearly six years after Oklahoma submitted its SIP. This decision, written by Judge Elrod, is a long and complex journey through the CAA, and is quite critical of EPA handling of these issues. The case is State of Texas, et al. v. EPA.

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Bi-partisan legislation has been introduced in the House of Representatives (H.R. 5685), known as the cow-300x225“Farm Regulatory Certainty Act,” a bill that would amend Resource Conservation and Recovery Act’s (RCRA) definition of “solid waste” (42 U.S.C. § 6903 (27)) to exclude “animal waste, manure, fertilizer, or constituents derived from such sources.” A recent U.S. District Court ruling in Washington State, Community Association for the Restoration of the Environment v. Cow Palace, LLC, held that manure qualifies as a solid waste under RCRA, triggering RCRA’s imminent hazard provisions. The Cow Palace decision alarmed members of the agricultural community. The proposed legislation states that Congress never intended RCRA to govern such waste. The legislation would also amend RCRA’s Citizen Suit provisions to explicitly exclude diligent enforcement actions, whether administrative or judicial, taken by state and federal officials. It appears that alleged violations of approved State Plans approved under RCRA Section 4007 would also be excluded.

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On July 7, the U.S. District Court for Alaska decided the case of Castle Mountain Coalition, et al., v. Office of Surface Mining Reclamation and Enforcement, alaskaholding that a mining permit issued under the Surface Mining Control and Reclamation Act (SMCRA) is terminated by operation of law if the mining activities authorized by the permit have not commenced within three years of the date of issuance, unless an authorized extension has been granted pursuant to the SMCRA. In this case, since no extension was granted after the first extension, the Court concluded that mining operations on the Wishbone Hill Coal Project that finally commenced many years later are not permitted. In so ruling, the Court rejected the argument of Office of Surface Mining Reclamation and Enforcement (OSM), an agency of the Department of the Interior, that SMCRA does not require the permit to be terminated if no special termination proceedings have been initiated, and vacated the OSM determination.

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