Articles Posted in Environmental

Readers may find helpful this recapitulation of recently-decided environmental law cases by the federal and state courts. The U.S. Supreme Court has issued two important rulings, and the court will be deciding important administrative law and Clean Air Act cases before the current term ends in June.

1. FEDERAL COURTS
A. Supreme Court

Kansas and Nebraska share the waters of the Republican River that flow through their states, as well as Colorado. Their disputes resulted in the Republican River Compact, which the states agreed to in 1943 to fairly allocate the water resources of the Republican River; the Compact was approved by the Congress in appropriate legislation. In 1998, Kansas and Nebraska argued over Nebraska’s increased pumping of groundwater, which resulted from the construction of thousands of wells hydraulically connected to the Republican River and its tributaries. A Special Master was appointed to sort out these complaints, and a settlement was signed in 2002 which included new procedures to promote compliance with the Compact. After the experience of some lingering droughts, Kansas complained that Nebraska was exceeding its authorized allocation of water. Another Special Master was appointed, who determined that Nebraska had knowingly failed to comply with the Compact in consuming excessive amounts of Republican River water, and the Master awarded Kansas $3.7 million for its loss and an additional sum of $1.8 million against Nebraska as a “partial disgorgement”. Both parties filed exceptions to the Special Master’s report, which the Supreme Court approved in the latest Kansas v. Nebraska decision, decided February 24, 2015.
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Today, in a narrow 5 to 4 decision, the United States Supreme Court reversed the opinion of the Eleventh Circuit Court of Appeals which had affirmed the felony conviction of John Yates, a commercial fisherman, who was suspected of having caught undersized red grouper in federal waters off the coast of Florida and convicted for concealing evidence of a violation of the federal conservation laws. This is an important ruling affecting the enforcement of the federal conservation laws and interpreting the scope of the Sarbanes-Oxley Act of 2002, which was enacted in the wake of the Enron collapse and the destruction of financial documents that abetted its demise. The case is Yates v. United States, decided February 25, 2014.
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Yesterday, in the United States Supreme Court’s decision in Kansas v. Nebraska, several members of the Court strongly disagreed with the determinations of Justice Kagan, including that “disgorgement” was proper. The Chief Justice, and Justices Thomas, Scalia and Alito argued that the Court’s equitable power was not sufficient to alter the accounting principles the states had agreed to in earlier settlements. For his part, Justice Scalia advised his colleagues not to treat the Restatements of the law as an authoritative description of the law: “Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be”. For his part, Justice Thomas took the view that ordinary contract principles should have been applied to this dispute, which the majority ignored, and observed that this dispute involves the “inherent authority of sovereign states to regulate the use of water” and that “authority over water is a core attribute of state sovereignty”. These views may play a role in all manner of cases in the future.
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The Texas Supreme Court is scheduled to hear oral arguments in City of Houston v. BCCA Appeal Group, Inc., on March 25, 2015 regarding whether the application of a City of Houston registration ordinance which purports to regulate air pollution within the City of Houston’s borders is preempted by the Texas Clean Air Act of 1967 (TCAA). The First District Court of Appeals held that the defendants “failed to show that the Legislature intended to preempt the Ordinance with ‘unmistakable clarity,’ and thus, failed to meet its extraordinary burden to establish that the ordinance is invalid, 2013 Tex. App. LEXIS 11089 (Tex. Ct. App. Aug. 29, 2013). The City of Houston is clearly concerned that the Texas Commission on Environmental Quality’s enforcement of the TCAA has not been very vigorous. We should expect to see a decision in this important case a few months .

On February 13, 2015, the U.S. District Court for the Eastern District of Louisiana dismissed a major lawsuit that was filed by the Board of Commissioners of the Southeast Louisiana Flood Protection Authority–representing a number of local South Louisiana levee boards–against 88 oil and gas companies operating in South Louisiana for many years. The case is Board of Commissioners of the Southeast Louisiana Flood Protection Authority-East, et al., v. Tennessee Gas Pipeline Company, LLC.
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As I previously reported, on January 27, 2015, the U.S. District Court for Minnesota granted summary judgment to EPA and two environmental groups defending EPA’s decision to release personal data submitted by a group of Concentrated Animal Feeding Operation (CAFO)-farm facilities who were also applicants for Minnesota wastewater discharges. The case is American Farm Bureau Federation and National Pork Producers Council v. EPA. However, on February 6, 2015, the District Court released an Amended Protective Order pursuant to an agreement reached by the plaintiffs and defendants to limit the disclosure of the confidential information that is at issue in this case.
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Friday, the Texas Supreme Court issued a unanimous opinion in the case of Environmental Processing Systems, L.C. v. FPL Farming Ltd., reversing the Court of Appeals for the Ninth District of Texas’s finding that EPS had the burden of establishing an affirmative defense that it had the landowner’s consent, and that Texas recognizes a common law trespass cause of action for deep subsurface water migration. The environmental and property rights issues affected by deep subsurface wastewater disposal are important to the oil and gas industry as well local and state government permitting agencies and environmental groups.
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On January 27, 2015, the U.S. District Court for the Southern District of West Virginia held that the waste water discharges of a mining operation in the coal mining areas were subject to a Clean Water Act (CWA) and Surface Mining Control and Reclamation Act (SMCRA) citizen suit. The District Court held that the defendant’s discharges violated its National Pollutant Discharge Elimination System (NPDES) permits by discharging “high levels of ionic pollution, as measured by conductivity” which caused or significantly and adversely affected the receiving stream’s aquatic ecosystem.

Although West Virginia has not promulgated any numeric values for this kind of pollution, the District Court found that the discharge violated the state’s “narrative water quality standards” that are incorporated in the NPDES and companion SMCRA permits. West Virginia’s narrative water quality standards are violated if wastes discharged from a surface mining operation “cause . . . or materially contribute to” (1) “[m]aterials in concentrations which are harmful, hazardous or toxic to man, animal or aquatic life” or (2) “[a]ny other condition . . . which adversely alters the integrity of the waters of the State.” W. Va. Code R. § 47-2-3.2.e, -3.2.i. The case is Ohio Valley Environmental Coalition, et al., v. Fola Coal Company, LLC.

The defendant is not entitled to a CWA permit shield defense, and a recent unpublished West Virginia Supreme Court ruling which apparently disregards the narrative water quality standards relied on by the plaintiffs, was not persuasive to the court.

Industry representatives have complained that from time to time that EPA will enter into settlements of lawsuits brought by environmental interest groups that have the effect of excluding industry representatives from participating in the final settlement. Usually these lawsuits involve claims that EPA has failed to take a regulatory action–usually a new rule–in accordance with a statutorily-imposed deadline. The GAO was asked to investigate the procedures employed by EPA to settle such lawsuits.

Last December, the U.S. Government Accountability Office (GAO) released a report entitled, “Impact of Deadline Suits on EPA’s Rulemaking is Limited“. Several members of Congress expressed their concerns to the GAO that EPA’s practice of settling lawsuits by promising to conduct rulemakings when a statutory deadline has come and gone–principally in Clean Air Act matters–meant that the public had little or no opportunity to be involved in the development of significant rules. The GAO investigated the procedures employed by EPA and DOJ and concluded that the impact of this practice was negligible, and the process allowed the public to file comments during the pendency of the consent decree/settlement. The report was released as GAO-15-34 (December (2014).

On January 27, 2015, the U.S. District Court for Minnesota granted summary judgment to EPA and two environmental groups defending EPA’s decision to release personal data submitted by a group of Concentrated Animal Feeding Operations (CAFO) farm facilities who were also applicants for Minnesota wastewater discharges. The plaintiffs argued that the release of this information was controlled by the Freedom of Information Act and that there is an exclusion protecting against the release of such personal data. They argued that they feared the loss of privacy, and that the release of this information promised to subject them to threats and harassment by groups and persons opposed to CAFO farm operations. The lawsuit was dismissed on standing grounds. a The District Court determined that in the age of the Internet, their personal data was already freely available, and so there was no standing. A 1989 Supreme Court decision, U.S. Department of Justice, et al., v. Reporters Committee For Freedom of the Press, et al., 489 U.S. 749, on which the plaintiffs relied, was distinguished primarily because of the changes to information gathering and collection made by the Internet. The case is American Farm Bureau Federation and National Pork Producers Council v. EPA.