Articles Posted in Environmental

In Gunpowder Riverkeeper v. FERC (where Columbia Gas Transmission, LLC was an Intervenor), the U.S. Court of Appeals for the District of Columbia Circuit denied Gunpowder Riverkeeper’s petition seeking a review of FERC’s issuance of a conditional certificate for public convenience and necessity granted by FERC to Columbia Gas Transmission to extend a natural gas pipeline in Maryland pursuant to FERC’s s authority under the Natural Gas Act (NGA).  Gunpowder Riverkeeper is described by the Court of Appeals as an association of individuals who “work, live, and recreate along the Gunpowder River and its tributaries” who are concerned with the power of eminent domain conveyed to Columbia Gas under Section 7 of the NGA to secure rights-of-way.  Continue Reading ›

In National Association for Surface Finishing v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit upheld EPA’s 2012 revision of its Clean Air Act (CAA) emissions standards for hexavalent chromium.  The new rule imposes more stringent emissions limitations than the former rule required, and mandates the phase-out of a category of fume suppressant containing a toxic compound.  These new emissions limits were a reversal of sorts for EPA, which in 2010 indicated that the data reviewed by it at that time did not warrant further tightening of the standard.  Various environmental organizations, opposing the new limitations, argued that the technology review required by the CAA compelled EPA to impose a new “maximum achievable control technology” (MACT) floor, but the Court of Appeals, deferring to EPA and its expertise, rejected this argument.  According to the Court of Appeals, EPA “provided a transparent, reasoned explanation of its decisions, considering all relevant information in the record”  Moreover, the “statute does not mandate a particular method of cost-benefit analysis”.  The industry association’s arguments were similarly found unpersuasive.  The Court of Appeals found that, when EPA shifted its position in 2010, it was reasonable because it had before it new data relevant to the decision at hand.

On July 20, 2015, the U.S. Court of Appeals for the Fifth Circuit again turned aside a challenge to the State of Texas’ “flexible permit” program, which is reserved for Clean Air Act permitting of minor sources of air pollution.  The program has been in effect since 1994, but a 2010 EPA disapproval of the Texas State Implementation Plan (SIP) was appealed to the Fifth Circuit, which reversed the EPA’s determination.  See Texas v. US EPA, 690 F. 3d 670 (5th Cir. 2012).  EPA thereafter conditionally approved the Texas State Implementation Plan (“SIP”) and the flexible permit program, but a group of citizen/environmental groups challenged the EPA’s approval.  Concluding that “our earlier opinion controls here”, the court held that the EPA’s action was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law; “to the contrary, it was explicitly in accordance with the law set out in our 2012 opinion”.  The case is Environmental Integrity Project, et. al. v. EPA.

In the case of Energy Future Coalition, et al. v. EPA, decided July 14, 2015, the D.C. Circuit Court of Appelas rejected a challenge to 2014 EPA rules regulating emission testing requirements for new motor vehicles– 40 C.F.R. § 1065.701(a). The rule requires that a “test fuel” be used by the manufacturers that is “commercially available”. The petitioners, representatives of biofuel producers whose fuel contains 30% ethanol, complain that since their fuel is not designated as being “commercially available” by EPA, the rule adversely affects them and is arbitrary and capricious. The Court of Appeals rejected this challenge because EPA’s rules were simply reflecting the statutory scheme enacted by the Congress.

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The Third Circuit Court of Appeals has unanimously affirmed the lower court’s ruling that the Chesapeake Bay “total maximum daily load” (TMDL), developed over many years to address pollution in Chesapeake Bay, was consistent with the Clean Water Act (CWA) and the U.S. Constitution’s division of powers between the states and the federal government. The case is American Farm Bureau Federation, et al., v. EPA, et al.

In 2010, EPA published the TMDL for nitrogen, phosphorus and sediment that can be released into Chesapeake Bay. The Bay’s watershed consists of 64,000 square miles and contains tens of thousands of lakes, rivers streams and creeks all flowing into the Bay. It has a surface area of 4500 square miles and almost 12,000 miles of shoreline, and it is estimated that by 2030, 20 million people will live in the watershed–by any measure, this TMDL–and the environmental problems it confronts–is very significant. Many trade associations, led by the American Farm Bureau Federation, have argued that all aspects of the Chesapeake Bay TMDL, which go beyond the tally of the allowable sum of pollutants that the Bay can safely absorb every day, exceeds the scope of EPA’s authority under the CWA. Moreover, they argue that EPA’s actions will have the effect of unlawfully intruding upon the states’ traditional role in regulating land use. However, this latter argument has not been successful with the states immediately involved with the TMDL–Virginia, West Virginia, Maryland, Delaware, Pennsylvania and the District of Columbia–that ceded authority to EPA to devise this plan, nor with the District Courts or the Court of Appeals.

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In the case of Michigan, et al., v. EPA, decided June 29, 2015, the U.S. Supreme Court, in a 5 to 4 ruling, held that EPA, when deciding whether it was appropriate and necessary to regulate Hazardous Air Pollutants (HAP), such as mercury and other toxic pollutants emitted from electric utility power plants, must consider the costs of compliance “at this stage” of the rulemaking proceedings.

In its 2012 rulemaking, EPA excluded any consideration of costs when deciding it was “appropriate”–as required by the Clean Air Act (CAA), 42 U.S.C. § 7412(n)(1)(A)–to impose the requirements of these new rules on these utilities. In the 1990 amendment to the CAA, EPA was directed by Congress to develop National Emission Standards for Hazardous Air Pollutants, but it also established a “unique procedure” to determine the applicability of the HAP program to fossil-fueled power plants. EPA was accordingly directed to perform a study of the hazards to public health reasonably anticipated to occur as a result of emissions by power plants of HAP pollutants after the imposition of the requirements of the law. This study was completed in 1998. However, EPA also determined that it was free to interpret the term “appropriate” so as to allow the agency to ignore the consideration of costs when it made the initial decision to regulate.

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On June 30, 2015, the U.S. Court of Appeals for the Fifth Circuit affirmed the trial court’s decision to grant Kurt Mix, a former BP engineer, a new trial after it was discovered that the jurors had been exposed to extrinsic evidence bearing on the general prosecution of BP employees in the wake of the Deepwater Horizon oil spill. The case is United States of America v. Mix.

Mix was involved in efforts to calculate the amount of oil flowing from the Macondo well, the site of the Deepwater Horizon accident, and developing plans to staunch the flow of oil into the Gulf of Mexico. He was charged with obstruction of justice for deleting text messages between himself and his supervisor related to, the Government alleges, the flow rates. Mix was acquitted on one charge and convicted on the other charge. His counsel, without the permission of the court, contracted the jurors to “obtain feedback about the defense’s failed trial strategy”, and they learned that the forewoman of the jury reported to some of her fellow jurors that she overheard a conversation in a courthouse elevator that other BP employees were being prosecuted in the wake of the spill.

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