Articles Posted in Environmental

The Freedom of Information Act (FOIA), first enacted more than 40 years ago, governs the release of information to the public of data generated by and submitted to the federal government. A recent decision by a U.S. District Court in Washington, DC, Competitive Enterprise Institute v. Office of Science and Technology Policy, describes one of the most important exceptions that serves to restrict the release if internal government documents, the “deliberative process privilege.”The District Court discussed this exemption in connection with its review of the Information Quality Act (IQA) and statements made in a short White House video on global warming director of the OSTP appeared in a brief White House video in which the director of the Office of Science and Technology Policy (OSTP) asserted that there was a growing body of evidence linking the weather phenomenon known as the “Polar Vortex” to global warming. The District Court held that 47 pages of internal communications (mostly drafts) that preceded the issuance of a three page letter by the OSTP responding to the Competitive Enterprise Institute’s (CEI) concerns about the video were covered by this FOIA deliberative process privilege exemption.

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On February 8, 2016, two significant decisions regarding the Federal Tort Claims Act (FTCA) were issued by the federal courts in the wake of the Supreme Court’s guidance in U.S. v. Kwai Fun Wong,135 S. Ct. 1625, 1638 (2015), that “the FTCA’s time bars are nonjurisdictional and subject to equitable tolling.”  These two recent decisions, Garling, et al., v. U.S. and Trinity Marine Products, Inc. v. United States, leave open the question regarding when equitable tolling of an FTCA claim will be available and, moreover, it may depend upon the jurisdiction in which the claims are filed.

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In the case of Center for Biological Diversity, et. al v. U.S. Forest Service, the U.S. Court of Appeals for the Ninth Circuit, in an unpublished opinion released on January 12, 2016, reversed the lower court’s dismissal of a Resource Conservation and Recovery Act (RCRA) Citizens Suit filed against the U.S. Forest Service which alleged that the U.S. Forest Service violated the RCRA by failing to regulate the disposal of spent lead ammunition in a national forest. Reviewing the allegations in the complaint, the Court of Appeals held that the plaintiffs had established standing—their claims are “not wholly insubstantial or frivolous.” The Court of Appeals noted that the government could make the argument in the lower court that the U.S. Forest Service was not a “contributor” to the solid waste problem, something the RCRA Citizen Suit provision requires.

Photo:  ClickFlashPhotos / Nicki Varkevisser, Painty Legs – Creative Commons

The ability of churches and other religious institutions to engage in ordinary business activities can be unexpectedly and adversely affected by provisions in some state constitutions which can be interpreted to exclude them from having access to public funds and public resources based on nineteenth century constitutional amendments.  On January 15, 2016, the U.S. Supreme Court has agreed to hear an important case from Missouri, which should result in a definitive review of a long-time prohibition in the case of Trinity Lutheran Church v. Pauley.  The Court will review a decision of the U.S. Court of Appeals for the Eighth Circuit, which held that the Missouri state constitution which provides that “no money shall be taken from the public treasury, directly or indirectly, in aid of any church,” serves to disqualify a church from participating in a state program which makes state funds available to organizations to purchase recycled tires to resurface playgrounds. The dissenting judge on the Eighth Circuit panel observed that “school children playing on a safer rubber surface made from environmentally-friendly recycled tires has nothing to do with religion.”

Photo:  crabchick, Tyres at Sharpness – Creative Commons

On January 25, 2016, the U.S. Supreme Court, in FERC v. Electric Power Supply Association, et al., a 6 to 2 ruling, reversed the May 2014 decision of the D.C. Court of Appeals, which had held that a final rule of FERC governing the “demand response” in which operators of wholesale markets (regulated by FERC) pay electricity consumers (arguably subject only to state regulation) for commitments not to use electricity at certain times (such as those times when the demand for this power is greatest) was invalid. According to the Court of Appeals, this rule was not authorized by the Federal Power Act (FPA), which is careful to delineate the regulatory powers granted to the federal government and those powers reserved by the FPA to the states.  This is obviously a very technical rule and a complicated energy market the Supreme Court was construing, but it should be noted that this is the third reversal by the Court of a recent decision of the D.C. Court of Appeals. 

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Thanks in part to the current standoff at the Malheur National Wildlife Refuge—and the 2014 armed confrontation in Nevada that preceded it, the contentious issue of grazing rights on federal lands is more front of mind nationally than it’s been in decades.

With the federal government owning and controlling millions of acres of land, particularly in the western states, business activities conducted on federal land are subject to close scrutiny and often require that a relevant permit be obtained and maintained. A failure to possess appropriate federal authorization can result in acrimonious legal action, and as illustrated in U.S. v. Estate of E. Wayne Hage, et al.  On January 15, 2016, the Ninth Circuit reversed the district court’s ruling (a federal court sitting in Nevada) that the federal government could not prosecute an action for damages or injunctive relief against ranchers who were grazing their cattle on federal land without a federal grazing permit. Continue Reading ›

In an insurance case attracting the attention of many insurance companies, Century Indemnity Company v. Marine Group, LLP, et al., a U.S. Magistrate Judge with the U.S. District Court for the District of Oregon (Portland Division), in its opinion and order on Marine Group’s motion for clarification and reconsideration, held that an insurance policy provision which excludes coverage for environmental claims brought by governmental agencies extends to Superfund or CERCLA natural resource damage claims asserted by Indian tribes that are members of a Superfund Trustee Council. The Indian tribes are members of the Portland Harbor Natural Resource Trustee Council, and the Court held that the claims asserted by members of the Council, including the tribes, triggered the insurance exclusion.

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Citizens Suits have played an important role in the enforcement of both the Clean Water Act (CWA) and the Clean Air Act (CAA), and all permittees of wastewater discharge permits and air quality permits should be aware of the significance of these Congressionally-approved remedies. While they have broad application to many routine industrial discharges, there also are limited conditions placed on their use. For instance, the CWA Citizen Suit provision, 33 U.S.C. § 1365, requires plaintiffs to provide the alleged violator 60 days’ notice before filing a lawsuit. In addition, the text of the provision of the CWA limits its application to violations of “effluent standards or limitations,” which the CWA also carefully defines by reference to Sections 1311, 1312, 1316. 1317, 1341, and 1342 of the CWA. If the subject matter of the alleged violation is not covered by these provisions, the case will usually be dismissed.

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