A Court-Side Seat: Permit Shields, Hurricane Harvey and the Decriminalization of “Incidental Taking”


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This is a brief review of some of the significant environmental (and administrative law decisions) released the past few weeks.


On April 22, 2021, the Court decided two important administrative law cases: Carr, et al. v. Saul and AMG Capital Management v. Federal Trade Commission.

Carr, et al. v. Saul
In this case, the constitutionality of Social Security Administrative Law Judges (ALJs) hearing disability claims disputes was at issue. More precisely, were these ALJs selected in conformance with the Appointments Clause of the Constitution? A similar issue was litigated in the case of Lucia v. Securities and Exchange Commission. There, the Court held that many of the agency’s ALJs were not selected in conformance with the Appointment’s Clause. Here, the Court held that this issue could be decided by the courts without compelling the litigants to first exhaust their administrative remedies. Thousands of ALJs are employed by the federal government, and it may take some time to resolve this question for every agency.

AMG Capital Management v. Federal Trade Commission
In this case, the court held, unanimously, that the Commission does not presently have the authority to employ such equitable remedies as restitution or disgorgement.

At the present time, several important administrative and environmental law cases have been argued, but not decided. They are: BP plc. V. Mayor and City Council of Baltimore (Can state common law climate change lawsuits be removed to the federal courts?); HollyFrontierCheyenne Refinery v. Renewable Fuels Association (regarding EPA’s administration of economic hardship waivers for small refineries); and Guam v. United States (a Superfund matter deciding if the relevant CERCLA statute of limitations doom Guam’s cost recovery lawsuit against the U.S. Government); and Penneast Pipeline Co. v. New Jersey (Does the Natural Gas Act authorize a FERC-certificated pipeline to employ imminent domain authority against a sovereign state?).


The Fourth Circuit – Southern Appalachian Mining Stewarts v. Red River Coal Company
On March 31, 2021, the court held that a coal mining company’s pollutant discharge which was exempt under the Clean Water Act was not actionable under the Surface Mining Act (SMCRA), constituting a kind of “permit shield.”

The Fifth Circuit – San Antonio Bay Estuarine v. Formosa Plastics Corporation
On April 30, 2021, in an unpublished opinion, the court held that the presiding judge in this Clean Water Act Citizen Suit—which resulted in Formosa’s agreement to pay $50 million over five years, largely for mitigation projects—misconstrued provisions of a settlement agreement that resolved the case. However, the complex Settlement Agreement provided for a court-appointed monitor and significant penalties for post settlement and consent decree violations, as well as TCEQ reporting obligations. The appeals court held that the text of the agreement did not support the lower court’s findings as to the defendant’s post consent decree discharges.

The U.S. District Court for the District of Columbia – Alabama Association of Realtors v. U.S. Department of Health and Human Services
On May 6, 2021, the court issued a ruling which held that the CDC’s nationwide residential eviction moratorium (see 86 FR 55292) was invalid in that the U.S. Department of Health and Human Services did not have this authority—which it delegated to the HHS—under the Public Health Act. (For more on this case, see our recent post.)

In late August 2017, Hurricane Harvey produced heavy rains which caused severe flooding in many parts of Southeast Texas. On April 16, 2021, the Texas Supreme Court held that the claims of the plaintiff property owners who alleged that the decision of the San Jacinto River Authority to release water from the Lake Conroe Reservoir caused their properties to flood could be litigated. The River Authority filed a motion to dismiss these lawsuits on the basis of sovereign immunity, but these motions were denied by both the trial and intermediate courts. The Texas Supreme Court affirmed these rulings, and also held that Chapter 2007 of the Texas Government Code applied to both regulatory and physical takings claims. Very few Hurricane Harvey claims against the government have been this successful.


On April 7, 2021, the new EPA Administrator issued a memo to all EPA offices directing them to “clearly integrate” environmental justice considerations into their plans and actions. More specifically, Administrator Regan directed EPA offices to strengthen the enforcement of environmental statutes and civil rights in communities “overburdened’ by pollution; take immediate steps to employ environmental justice considerations in their work; strengthen the agency’s involvement and engagement with environmental justice communities; and prioritize direct and indirect environmental justice benefits in underserved communities.

U.S. Fish and Wildlife Service of the Department of the Interior
On May 7, 2021, the agency published a notice in the Federal Register (see 86 FR 24573) that it proposes to revoke a recent decision to “decriminalize” the incidental “taking” of birds protected by the Migratory Birds Treaty Act. For many years, even incidental takings were subject to criminal enforcement, but some federal courts held that this policy was inconsistent with the actual provisions of the Act. The most notable case so holding is CITGO v. United States, 861 F3d 489 (CA 5, 2015). The notice of proposed rulemaking discusses this ruling in some detail, and disagrees with its conclusions. The administration of this law has always been important to the energy sector. Comments must be filed by June 7,2021.


Environmental Justice Legislation Update

The Court-Side Seat: FERC Reviews, Panda Power Plaints and Sovereign Immunity

A Court-Side Seat: A Poultry Defense, a Houston Highway and a CERCLA Consent Decree that Won’t Budge

Environmental Law – The Year in Review