Articles Posted in Environmental

In the case of Association of Irritated Residents v. EPA, decided June 23, 2015, the Court of Appeals for the Ninth Circuit denied a petition for review filed after EPA acknowledged that it had mistakenly approved certain New Source Review (NSR) rules affecting ozone emissions in California’s Central Valley (which includes the San Joaquin Valley) subject to California’s State Implementation Plan (SIP), and then corrected this error.
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An important Fifth Amendment Takings Clause case was decided today. The U.S. Supreme Court, by reversing the Ninth Circuit, has terminated the decades-old litigation over the Department of Agriculture’s administration of the California raisin “marketing order.” The case is Horne, et al. v. Department of Agriculture.
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The U.S. Supreme Court will not hear an appeal of the Fifth Circuit’s decision which reversed the lower court’s ruling. The Fifth Circuit found that the State of Texas had violated the Endangered Species Act in its administration of the state water permitting program which allegedly denied adequate amounts of fresh water at the Aransas, Texas Whooping Crane preserve. The case is Aransas Project v. Shaw.

The Texas Supreme Court issued two significant rulings on June 12, 2015. In the case of Dacus, et al v. Annise Parker, et al., the Court reversed the judgment of the Court of Appeals of the Fourteenth Circuit, and held that the 2010 proposed amendment to the Houston City Charter, authorizing the imposition of maintenance fees directly on City residents to finance city street and drainage improvements, did not meet the common law standard “preserving the integrity of the ballot.” The information on the ballot did not inform the voters that they would be subject to these fees; it simply identified the proposed amendment without describing how the funds would be raised. Since 1884, the Court has required that such propositions be submitted with such definitions and certainly that the voters are not misled. Today’s ruling should provide more clarity and direction to the lower courts. The case has been returned to the district court.
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In a decision released on June 11, 2015, the U.S. Court of Appeals for the Ninth Circuit, by a 2 to 1 decision, affirmed the lower court’s grant of summary judgments in favor of the Department of the Interior, the Bureau of Safety and Environmental Enforcement (the Bureau) and two Shell Oil entities, Shell Gulf of Mexico, Inc. and Shell Offshore, Inc. with respect to the Bureau’s approval of Shell’s oil spill response plans. These companies were awarded leases to explore for oil in the Beaufort and Chukchi Seas off Alaska’s Arctic coast, and the court noted Shell’s plans have been “waylaid by a variety of legal, logistical, and environmental problems, including multiple lawsuits, the wreck of one of its drilling rigs, and the temporary suspension of drilling activities in the Arctic after the Deepwater Horizon spill.” At least eight separate challenges to the Shell leases have been heard by the Ninth Circuit to date. Several environmental organizations challenged the decision of the government to approve two of Shell’s oil spill response plans, arguing that the approval was arbitrary and capricious in violation of the Administrative Procedure Act.
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In the case of GeorgiaCarry.Org, Inc., et al., v. U.S. Army Corps of Engineers, decided June 9, 2015, the Eleventh Circuit Court of Appeals affirmed the decision of the lower court to deny a request for a preliminary injunction against the enforcement of the Corps’ regulation that prohibits loaded firearms and ammunition form federal property managed by the Corps. The rule is located at 36 C.F.R. § 327.13.
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In the case if McClung v. Paul, decided June 8, 2015, the Eighth Circuit Court of Appeals affirmed the decision of the lower court that the District Corps Commander’s revocation of a federal permit to use the boat dock and concrete steps located on federal property adjacent to the McClungs’ residence in the Greers Ferry Lake, Arkansas area, was not arbitrary and capricious.
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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.