Articles Posted in Environmental

On June 1, 2015, in a case about the interplay between the right of individual property owners to seek redress for the diminution in value of their properties caused by light, noise, and airborne chemical particulates originating from the operation of adjacent regulated energy production facilities and the right of the government to regulate emissions from those facilities, the Seventh Court of Appeals sitting in Amarillo issued a ruling reversing the grant of summary judgment to five energy production companies whose operations are located near DISH, Texas, and remanding the matter for further proceedings. The case is Sciscoe, et. al. v. Enbridge Gathering (North Texas), L.P., et. al.
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On June 4, 2015, U.S. District Judge Lee Rosenthal issued a long ruling, resolving a number of partial summary judgement motions filed in the case of Exxon Mobil Corporation v. United States.

Exxon’s predecessors owned and operated large refineries located in Baytown, Texas and Baton Rouge, Louisiana (which are being operated by Exxon today), and they entered into extensive (and profitable) war production contracts with the United States Government to produce large quantities of high-octane aviation gas and synthetic rubber at these plants. These operations also generated large quantities of hazardous waste which were disposed of in the Houston Ship Channel and the Mississippi River, which was the practice during World War II and the Korean War. Exxon has entered into administrative settlements with the States of Texas and Louisiana, and has spent, to date, $71 million to clean up and remediate this waste disposal. In 2010, Exxon sued the United States in federal court under Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq. (“CERCLA”), arguing that the government should also be held accountable as a “covered person” under the law.
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On June 3, the U.S. Court of Appeals for the District of Columbia issued another major Resource Conservation and Recovery Act (RCRA) decision, albeit in an unpublished opinion. The case is Solvay USA v. EPA. In 2011, EPA issued rules to classify non-hazardous secondary materials under RCRA as “solid waste” for the purpose of Clean Air Act emission standards applicable to sludge incinerators and other combustion units. The rule is codified at 40 C.F.R. Part 241. As noted by the Court of Appeals , whether a facility is regulated by Clean Air Act (CAA) Section 7429 or 7412 has significant practical consequences for the regulated facilities. The Court of Appeals rejected the arguments of both the environmental and industry petitioners, holding that EPA’s interpretation of both RCRA and the CAA was entitled to considerable deference by the courts, and that the Administrative Procedure Act will only allow a court to set aside an action that arbitrary and capricious, and there is no evidence that it was. The Court of Appeals’ opinion is very brief (four pages) and will not be published. However, the Court of Appeals directed the clerk not to issue the mandate for seven days to give the parties time to seek rehearing or rehearing en banc.

In an important decision released on May 29, 2015, the U.S. Court of Appeals for the Tenth Circuit rejected the Sierra Club and other environmental organizations’ most recent objections to the permitting and construction of TransCanada’s Gulf Coast pipeline. The case is Sierra Club, et al. v Bostick. The U.S. Army Corps of Engineers issued letters verifying that the Corps Nationwide Permit 12, authorized by the Clean Water Act (CWA), would cover the proposed pipeline. The pipeline has now been constructed and is delivering oil, and covers 485 miles and consists of 2000 water crossings necessitating the use of this permit, which “allows anyone to construct utility lines in U. S. waters ‘provided the activity does not result in the loss of greater than ½ acre of U. S. waters for each single and complete project.'” The Court of Appeals noted that the project also required TransCanada to satisfy wetlands mitigation requirements. In challenging the validity of the Nationwide Permit and the verification letters, the plaintiffs argued that the Corps of Engineers violated both the National Environmental Policy Act (NEPA) and the CWA.
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The Missouri Department of Natural Resources (DNR) denied the 2012 application of the Trinity Lutheran Church to participate in a state program that makes state solid waste management funds available to qualifying organizations to purchase recycled tires to resurface playgrounds. This use of recycled tires is described as a “beneficial use of solid waste”. Trinity Lutheran’s application was rejected on the basis of a long-standing provision of the Missouri Constitution which specifically provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church”. Trinity Lutheran filed a challenge to this decision in federal court, alleging that the rejection of its application, which the DNR ranked 5th of 44 applications received in 2012, violated its rights under both the federal and Missouri state constitutions. Noting that Missouri has a long history of maintaining a very high wall between church and state, the federal district court dismissed the lawsuit, which the Eighth Circuit affirmed in an opinion released on May 29, 2015. The case is reported as Trinity Lutheran Church of Columbia, Inc. v. Pauley.
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The following important U.S. District Court decisions are being appealed to the Fifth and Tenth Circuit Court of Appeals:

• Louisiana District Court says no go to suit against 88 oil and gas companies. On May 20, 2015, another important environmental appeal was filed with the Fifth Circuit Court of Appeals. The case is Board of Commissioners of the Southeast Louisiana Flood Control Authority – East v. Tennessee Gas Pipeline Company, LLC, et al., 2015 U.S. Dist. LEXIS 18461 (February 13, 2015). In February 2015, the U.S. District Court for the Eastern District of Louisiana dismissed a major lawsuit that the Board of Commissioners filed against 88 oil and gas companies operating in South Louisiana for many years. The lawsuit, filed in state court and removed to federal court, alleges that the oil and gas operations of the defendants, in particular the construction and operation of canals located in the jurisdiction of the plaintiff levee boards, caused significant coastal erosion which in turn caused the destruction of thousands of acres of coastal lands.
• Texas District Court shows Clean Air Act citizen suit the door. In December 2014, the U.S. District Court for the Southern District of Texas issued a ruling in Environment Texas Citizen Lobby, Inc., et al. v. ExxonMobil Corporation, et al., rejecting the Clean Air Act citizen suit claims filed against ExxonMobil with respect to its operation of the large Baytown, Texas petrochemical complex. This is one of the few cases to be tried before a court, and now, on May 15, 2015, an appeal has been filed with the Fifth Circuit by the plaintiffs. The Case No. is 15-20030, and, again, the brief is very long and comprehensive.
• Not your dog? Last November, the U.S. District Court for Utah ruled that the federal government does not have the constitutional authority to regulate the “taking” of the Utah prairie dog–a species located only in Utah–on non-federal land. The species has, however, been listed as an endangered

species since 1973. The decision, People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, et al., has been appealed to the Tenth Circuit, and the Justice Department has now filed a very comprehensive brief in this matter; the Case No. is 14-4165.

On May 15, 2015, the Court of Appeals for the District of Columbia Circuit again ruled that the National Association of Home Builders lacked representational standing to challenge a “preliminary, internal determination” made by EPA and the US Army Corps of Engineers in 2008 that two stretches of the Santa Cruz River in Southern Arizona are traditional navigable waters. The case is National Association of Homebuilders, et al., v. EPA.
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