Articles Posted in Environmental

On April 24, 2015, the United States Court of Appeals for the District of Columbia Circuit decided the case of Delta Construction Company, et. al. v EPA, denying petitions requesting the court’s review of rules jointly issued by EPA and the National Highway Traffic Safety Administration regulating greenhouse gas emissions and mandating fuel economy rules affecting cars and trucks (the court describes these two rules as “the Car Rule” and the “Truck Rule”). In 2012, the Court of Appeals upheld the “Car Rule” in Coalition for Responsible Regulation, Inc., v. EPA, 684 F. 3d 102, reversed in part by the Supreme Court in Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427 (2014).
Continue Reading ›

The Final Rule: Disposal of Coal Combustion Residuals from Electric Utilities was signed by EPA Administrator, Gina McCarthy, on December 19, 2014 and a pre-publication copy of the Final Rule was released several weeks ago, but the Final Rule is only now appearing in the Federal Register at 80 F.R. 21302, with an effective date of October 14, 2015. The EPA summarized the Final Rule as providing a comprehensive set of requirements for the safe disposal of coal combustion residuals (CCRs), commonly known as coal ash, from coal-fired power plants. It is purportedly the culmination of extensive study on the effects of coal ash on the environment and public health. The Final Rule establishes technical requirements for CCR landfills and surface impoundments under subtitle D of the Resource Conservation and Recovery Act (RCRA), the nation’s primary law for regulating solid waste. The Final Rule makes a number of changes from the proposed rule, including providing greater clarity on technical requirements in response to questions received during the comment period on the proposed rule. The EPA states that any major enforcement of these new rules will primarily be the responsibility of the states and through RCRA’s citizen suit authority. The Federal Register version of the Final Rule is almost 200 pages.

Additional Source: Redline Version of the Final Rule: Disposal of Coal Combustion Residuals from Electric Utilities

On April 10, 2015, the U.S. Court of Appeals for the Eighth Circuit, in a very important ruling, held that the U.S. Army Corps of Engineers’ Jurisdictional Determination (“JD”) that the property under review was a wetland that constitutes “waters of the United States” and thereby subject to the permitting and enforcement authority of the Corps, can be reviewed by the federal courts on an immediate basis. The case is Hawkes Co., Inc. v. US Army Corps of Engineers. The Court of Appeal’s approach was influenced by the Supreme Court’s approach in Sackett v. EPA, 132 S. Ct. 1367 (2012)., and the Eighth Circuit held that this JD was indeed a final agency action subject to judicial review, particularly when the choices confronting a property owner who wishes to develop his property are so unappealing.

The Court of Appealst reviewed a long list of federal administrative actions whose serious consequences triggered judicial review, and took issue with the Fifth Circuit’s recent in Belle Co., L.L.C., v. US Army Corps of Engineers, 761 F. 3d 383 (2014). There’s now a conflict in the circuits, and an appeal to the Supreme Court may be in the offing.

The U.S. District Court for the District of Columbia has denied a request for a preliminary injunction to stop the U.S. Department of Transportation from granting necessary permits to begin the reconstruction and repair of the Virginia Avenue Tunnel, a tunnel which for 111 years has facilitated rail transportation through and under the Capitol Hill neighborhood of Washington, DC. The case is Committee of 100 on the Federal City v. Anthony Foxx, Secretary of the US Department of Transportation, and it was decided on April 7, 2015.
Continue Reading ›

Following two adverse rulings by the DC Circuit, issued in 2014 and reported at Sierra Club v. EPA, 755 F.3d 968 (D.C. Cir. 2014) and Natural Resources Defense Council v. EPA, 755 F.3d 1010 (D.C. Cir. 2014), EPA has removed two exclusions from the list of regulatory exclusions located at 40 C.F.R. Section 261.4(a). This action was made effective on April 8, 2015.
Continue Reading ›

Federal district courts are often confronted with the issue of whether “Narrative Water Quality Standards” are incorporated into National Pollutant Discharge Elimination System (NPDES)permits and enforceable as permit conditions as they preside over citizen suits filed under the Clean Water Act (CWA). Two District Court’s recently weighed in on this issue.
Continue Reading ›

The implementation of the U.S. Department of Agriculture’s Highly Erodible Land Conservation and Wetland Conservation Compliance provisions (aka “Swampbuster”) program, designed to protect wetlands located on farming property, was the focus of a ruling by the U.S. Court of Appeals for the Sixth Circuit. On April 1, 2015, the Court of Appeals decided the case of Maple Drive Farms Limited Partnership, et al., v. Tom Vilsack, Secretary, United States Department of Agriculture. On appeal, the Sixth Circuit reversed the District Court’s ruling and remanded the matter, holding that the proceedings conducted by the agencies of the Department, described by the District Court as a “bureaucratic labyrinth” were inconsistent with the Department’s own regulatory framework, and were arbitrary and capricious.
Continue Reading ›

A state Court of Appeals sitting in Houston, Texas, on March 26, 2015, ruled that environmental indemnities, which were a component of an exchange of Louisiana oil and gas properties in 1994, could be enforced today by and against the corporate successors to the original companies that negotiated these provisions. The case is ConocoPhillips Company v. Noble Energy, Inc., No. 14-13-00884-CV. The decision is significant because ConocoPhillips settled a claim for environmental damages associated with these swapped properties filed by the State of Louisiana and the Cameron Parish School Board for $63 million, and had made a demand for defense and indemnity that was denied.

On April 2, 2015, the Ninth Circuit Court of Appeals decided a complex Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution cost recovery case in AmeriPride Services Inc. v. Texas Eastern Overseas Inc. (TEO), a dissolved Delaware corporation. The Ninth Circuit vacated this District Court’s rulings on several grounds.
Continue Reading ›