Articles Posted in Environmental

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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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.
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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.
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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.
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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.
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A significant CERCLA Opinion and Order was issued on March 18, 2015 by the U.S. District Court for the Western District of Wisconsin in Northern States Power Company v. The City of Ashland, Wisconsin, et al. Northern States is cleaning up a CERCLA site located adjacent to Lake Superior in Ashland, Wisconsin pursuant to agreements it had entered into with EPA in 2003 and 2012, and it has filed cost recovery lawsuits against the defendants, including Ashland County. Northern States alleges that Ashland County was a former owner of the facility many years ago, and that it was vested with sufficient ownership and control as the result of a tax delinquency. Contemporary newspaper accounts confirmed, for the Court, that the County appears to have played a direct role in the demolition of onsite facilities and the resulting historic releases of hazardous substances, and the County’s request for summary judgment was denied.

Last week, the State of Wyoming filed a Petition for Review of Final Agency Action in the Wyoming Federal District Court challenging the new federal hydraulic fracturing rules, 43 C.F.R. Part 3160. The case is State of Wyoming v. United States Department of the Interior, et al., No. 15cv43-S. Wyoming essentially argues that the Department of Interior’s new rules exceed the Department of Interior’s authority under the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-84 and the Mineral Leasing Act, 30 U.S.C. §§ 181-287; that exclusive federal authority is vested in the Environmental Protection Agency’s Underground Injection Control program established under the Safe Drinking Water Act, 42 U.S.C. § 300h-1; and that the rules unlawfully interfere with the State of Wyoming’s hydraulic fracturing regulations.

Petitions for certiorari have been filed with the Supreme Court of the United States regarding two recent rulings of the U.S. Court of Appeals for the Fifth Circuit. In both Aransas Project v. Shaw and In re: Deepwater Horizon, petitions for en banc review were denied, but a significant number of dissents have encouraged the petitioners to seek further review in the Supreme Court.
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