Articles Posted in Environmental

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.

On August 30, 2015, U.S. District Court Judge Lynn Hughes of the U.S. District Court for the Southern District of Texas issued an opinion dismissing the Government’s lawsuit asserting that Thomas Lipar, a real estate developer, violated the Clean Water Act by discharging fill material into jurisdictional wetlands without a permit. According to Judge Hughes, the Government failed to establish that the wetlands in issue were jurisdictional waters.  In addition, Judge Hughes determined that EPA acted in bad faith, and throughout the 10 years these sites have been under investigation or in litigation, it has been “intractable, uncooperative and defiant”; indeed, its behavior has been “reprehensible”.  Consequently,  Judge Hughes has sanctioned the Government, requiring the United States to pay the defendant and the other defendant’s the reasonable attorney’s fees they incurred in defending this lawsuit.  The case is U.S. v. Lipar, et al.

On August 27, 2015, the U.S. Court of Appeals for the Eighth Circuit issued a Clean Water Act (CWA)  ruling affirming the decision of the lower court that STABL, Inc. the former owner and operator of a rendering plant in Lexington, Nebraska, violated the CWA and the Nebraska Environmental Protection Act.  The case is U.S., et al., v. v. STABL, Inc., formerly known as Nebraska By-Products, Inc.  This decision points out the heavy burden confronting defendants who argue that their discharge monitoring reports (DMRs) are unreliable, a burden the defendant was unable to overcome. Continue Reading ›

On August 21, 2015, the U.S. District Court for the Northern District of Texas, presiding over a Clean Air Act (CAA) enforcement proceeding, granted the defendants’ motion to dismiss several alleged violations of the CAA on the basis that the prosecution of these violations was time-barred.  The case is U.S. v. Luminant Generation Company, LLC, and Big Brown Power Company, LLC.

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On August 27, 2015, the U.S. District Court for the District of North Dakota, Southeastern Division, issued a preliminary injunction enjoining the new rule jointly promulgated by EPA and the U.S. Army Corps of Engineers redefining “Waters of the United States,” which is a linchpin of federal regulatory jurisdiction under the Clean Water Act. Twelve States, and representatives of New Mexico executive departments filed a lawsuit challenging the new rule, and also requested the issuance of a preliminary injunction.  Ruling that the new rule has only “an attenuated connection to any permitting process”, the District Court held that it had jurisdiction to hear this case, and that the plaintiffs demonstrated a substantial likelihood that they would succeed on the merits and met the other criteria necessary to obtain a preliminary injunction.  The case is State of North Dakota, et al., v. EPA and U.S. Army Corps of Engineers.

The U.S. Court of Appeals for the Ninth Circuit issued a ruling Friday in the case of ONRC Action v. United States Bureau of Reclamation.  Affirming the district court, the Court of Appeals held that the transfer of water into the Klamath River by means of the Klamath Straits Drain, as part of the Klamath Irrigation Project operated by the Bureau of Reclamation (Bureau) in parts of California and Oregon, is not the discharge of pollutants into waters of the United States without a permit.  Continue Reading ›

On August 19, 2015, the U.S. Court of Appeals for the Second Circuit issued a ruling discussing the impact of New York State’s “Fracking Moratorium” on some existing oil  and gas leases.  The case is Beardslee, et al., v. Inflection Energy, LLC, et al.  The Court of Appeals affirmed the district court’s decision to grant a motion for summary judgment filed by a group of landowners located in Tioga County, New York.  The district court had concluded that the parties’ five-year oil and gas leases had expired by their terms and that the leases’ force majeure clauses did not extend the leases’ primary terms. It did so despite the energy companies’ arguments that New York Fracking Moratorium amounted to a force majeure automatically extending the term of these leases.

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On August 11, 2015, the U.S. District Court for the Northern District of California, San Jose Division, issued a long ruling deciding a challenge to a new rule, adopted by the U.S. Fish and Wildlife Service (FWS) in December 2013, which increased the maximum duration of a “programmatic permit” to “take” bald and golden eagles incident to otherwise lawful activities from 5 to 30 years.  The case is Shearwater, et. al. v. Dan Ashe, Director, U.S. Fish and Wildlife Service, et al.

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