Articles Posted in Environmental

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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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).
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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.
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