Articles Posted in Environmental

On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit, in a split decision, stayed the implementation of the new rule redefining the regulatory definition of “waters of the United States” (the Rule), which is the linchpin of much of the federal government’s jurisdiction under the Clean Water Act (CWA). The case is State of Ohio, et al., v. U.S. Army Corps of Engineers.

The Rule, promulgated by the Environmental Protection Agency (EPA) and Corps of Engineers, was published in the Federal Register on June 29, 2015, and was to be effective on August 28, 2015. The Rule has been challenged and defended in many federal district and appellate courts, and the four actions that were considered by the Sixth Circuit followed the decision of the Judicial Panel on Multi-District Litigation to consolidate these appeals in the Sixth Circuit. The petitioners in these four actions also requested that the Sixth Circuit stay the Rule while it determines whether it even has jurisdiction over this case, given the complexity of the CWA’s provisions regarding judicial review.

The Sixth Circuit agreed that it made sense to do so, to allow the parties to submit briefs on the Sixth Circuit’s jurisdiction, which the court will review carefully, and the Sixth Circuit also indicated that its decision should be made “in a matter of weeks.”

In issuing the stay, the Sixth Circuit noted that it had some misgivings about the Rule and the EPA’s and Corps of Engineers’ processes by which the Rule was promulgated. In any case, a stay will “temporarily silence the whirlwind of confusion that springs from uncertainly about the requirements of the new Rule,” honors the “policy of cooperative federalism,” and will restore “uniformity of regulation under the familiar, if imperfect, pre-Rule regime, pending judicial review.” As a result of this action, the status quo will be maintained pending further review.

Additional Source:  80 F.R. 37054 (Jun. 29, 2015)

The U.S. Court of Appeals for the Second Circuit has issued a ruling that EPA’s Clean Water Act (CWA) Vessel General Permit (VGP), which regulates the discharge of ballast water from ships, was promulgated in violation of the Administrative Procedure Act (APA), and must be remanded to the agency.  The case is National Resources Defense Council, et al. v. EPA, which was decided on October 5, 2015.

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The U.S. District Court for the Southern District of West Virginia has ruled on the government’s motions to dismiss the plaintiffs’ constitutional arguments in a new Clean Water Act (CWA) administrative compliance order matter.  The plaintiffs, West Virginia property developers, were alleged to have violated the CWA by illegally discharging dredge and fill material into Neal Run, a tributary stream that flows into the “waters of the United States”.  EPA issued a CWA Compliance Order under Section 309 of the CWA, requiring the plaintiffs to restore the property to “pre-disturbance grade and conditions”.  The plaintiffs, who purchased the property out of the bankruptcy estate of the previous owner, then filed a lawsuit seeking declaratory and injunctive relief from the order under the Administrative Procedures Act (APA) or an injunction halting its enforcement.  They alleged that the order violated both their procedural and substantive due process rights.  The case is Foster, et al., v. EPA, et al.

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On September 30, 2015, the U.S. District Court for Wyoming granted requests for a preliminary nationwide injunction against the implementation of the Department of the Interior’s (DOI) Bureau Of Land Management (BLM) rules that apply to hydraulic fracturing on Federal and Indian lands.  The lead case is State of Wyoming v. U.S. Department of the Interior.

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The U.S. Army Corps of Engineers often exercises its Clean Water Act (CWA) Section 404 permitting authority through administrative “jurisdictional determinations”, in which the agency usually determines whether a proposed project involves the deposit or disposal of dredge and fill material into wetlands deemed to be “waters of the United States” subject to the jurisdiction and control of the Corps of Engineers.  These determinations can be controversial, particularly when the Corps of Engineers’ authority is based upon laws, rules and administrative practices that may not be clear.  Recently, two U.S. Courts of Appeals have issued conflicting rulings with respect to the issue whether the Corps of Engineers jurisdictional determinations are “final agency rules” that can be promptly reviewed in federal court in the wake of the Supreme Court’s unanimous decision in the 2012 case of Sackett v. EPA, 132 S.C.t. 1367 (2012).  The two rulings are Belle Co. LLC v. US Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014), and Hawkes Co., Inc. v. U.S. Army Corps of Engineers, 782 F. 3d 994 (8th Cir. 2015).  These rulings take on added significance because of the new rules issued by EPA and the Corps of Engineers redefining the concept of “waters of the United States”, which is the linchpin of federal regulatory power under the CWA.  These rules were made effective on August 28, 2015, and many challenges have been filed in both federal district courts and the Court of Appeals.

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On September 21, 2015, the U.S. Court of Appeals for the Seventh Circuit issued an important Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), cost recovery lawsuit ruling relating to a contractual release of liability that pre-dated CERCLA.  The case is The Peoples Gas Light and Coke Company v. Beazer East, Inc.

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On September 11, 2015, the United States District Court for the Eastern District of Louisiana issued a significant ruling holding that CERCLA’s “Petroleum Exclusion” applies to the release of crude oil and any quantities of benzene, toluene and xylene present in this crude oil resulting from the Deepwater Horizon oil spill of April 20, 2010.  Accordingly, the spill reporting requirements of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) were not triggered by this spill.  The case is In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on July 20, 2010.

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On September 4, 2015, the U.S. Court of Appeals for the Fifth Circuit issued an important ruling concerning the scope of the Migratory Bird Treaty Act of 1918, 16 U.S.C. § 703 (MBTA), and the federal government’s use  of an EPA rule regulating the operation of petroleum refinery wastewater treatment systems in a criminal prosecution.  The case is U.S. v. CITGO Petroleum Corporation; CITGO Refining and Chemical Company, L. P.  The Court of Appeals , in a unanimous opinion, reversed not only the jury’s determination that CITGO was guilty of violating the Clean Air Act (CAA), but also the trial court’s determination that CITGO was  guilty of violating the MBTA.  As a result, a $2 million criminal fine levied against CITGO, and separate $15,000 fines against CITGO for violating the MBTA, were set aside.

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On September 1, 2015, the U.S. District Court for the Western District of Texas issued a ruling which vacates the April 2014 listing of the Lesser Prairie Chicken (LPC) as a threatened species pursuant to the Endangered Species Act.  The case is Permian Basin Petroleum Association, et al. v. Department of the Interior, et al. The lawsuit challenging the listing was filed on June 9, 2014.  The plaintiffs argued, and the District Court agreed, that the U.S. Fish and Wildlife Service was obliged to evaluate the LPC rangewide plan in accordance with the agency’s 2003 Policy for Evaluation of Conservation Efforts When Making Listing Decisions, and it failed to do so.  Accordingly, the listing of the LPC was arbitrary and capricious, and must be vacated.