Gravel2Gavel Construction & Real Estate Law Blog
State of Texas, et al. v. US EPA. The revised regulatory definition of “Waters of the U.S.” continues to generate litigation in the federal courts. On May 28, 2019, the U.S. District Court for the Southern District of Texas held that the 2015 rulemaking proceedings used by EPA and the U.S. Army Corp of Engineers to redefine this important component of the Clean Water Act were flawed in that the notice and comment provisions of the Administrative Procedure Act (APA) were violated because insufficient notice was provided by these agencies that “adjacent” waters newly subject to the regulatory jurisdiction of these agencies, can be determined on the basis of specific distances, which was a change in the agencies’ thinking, and insufficient notice of this change was provided to the public. In addition, the final rule “also violated the APA by preventing interested parties from commenting on the scientific studies that served as the technical basis” for the rule. However, the court did not vacate the new rule, but remanded the matter to the “appropriate administrative agencies” to give them an opportunity to fix this problem.
State of Oklahoma, ex rel. Mike Hunter, Attorney General of Oklahoma v. US EPA and the United States Army Corps of Engineers. A day later, on May 29, 2019, the U.S. District Court for the Northern District of Oklahoma rejected arguments that the new redefinition should be preliminarily enjoined.While this case was filed in 2015, intervening litigation in the federal courts, including the U.S. Supreme Court, caused a substantial delay in the disposition of this case. The court, noting that the tests for granting such an injunction against the federal government are fairly exacting, held that the plaintiffs, the State of Oklahoma and a number of industry groups and associations, failed to convince the court that the harm they would suffer if the rules remained effective would be irreparable. Presumably, this case will be going to trial in the near future.
In the meantime, the U.S. Court of Appeals for the District of Columbia Circuit issued two brief but significant decisions. In Producers of Renewables for Integrity Truth and Transparency v. EPA, an unpublished opinion discussing aspects of the Clean Air Act’s Renewable Fuels Program and released on May 24, 2019, the court dismissed in part a petition for review of an EPA action granting some renewable fuels exemptions applicable to smaller petroleum refiners, and transferred the remainder of the petition to the U.S. Court of Appeals for the Tenth Circuit. In 2017, the Tenth Circuit vacated two of EPA’s denial orders because the agency had based its decision on an “impermissible stringent reading” of the economic tests for relief. The petitioner in this case filed its complaint in the DC Circuit after relief was later provided by EPA to the Wyoming refiners, and also challenged the agency’s interpretation of the small refineries provisions of the Clean Air Act several years after the implementing rule was promulgated in 2010. The court transferred the ongoing controversy over the Wyoming refiners controversy to the Tenth Circuit because these matters belong there, and dismissed the regulatory challenge as being untimely.
On May 31, 2019, the DC Circuit issued a follow-up ruling in the case of National Parks Conservation Association v. Semonite, Chief of the US Amy Corps of Engineers. Several months ago, the court held “in the clearest of terms” that the Corps violated NEPA when it issued a permit to Virginia Electric and Power Company (“Dominion”) to complete an electric power project that required the installation of electrical transmission towers across the historic James River in Virginia. The project generated many objections from many parties, including federal agencies that are uniquely responsible for the protection of this area. The Corps had determined that no significant deleterious impact would result, which the court rejected because the Corps failed to prepare an Environmental Impact Statement as the law requires. The permit was vacated, theoretically postponing the project’s completion. Now the Corps seeks a rehearing on the remedy because the court had not been advised at the time of the issuance of the first opinion that construction of the project had been completed and the transmission lines electrified. The court understandably notes that “we view the foregoing as more than a little troubling” because now the courts face the problems involved in shutting down and removing the tower after $400 million has already been invested. The case has been remanded to the lower court to decide whether vacatur remains the appropriated remedy, and whether the Government is judicially estopped from opposing vacatur.
Center for Biological Diversity, et al. v. US Forest Service. Finally, the U.S. Court of Appeals for the Ninth Circuit has again remanded to the lower court a RCRA Citizens Suit controversy for further review. The plaintiffs complain that the Forest Service’s management of spent lead ammunition in Arizona’s Kaibab National Forest is endangering wildlife, especially certain scavenger species that ingest lead ammunition left behind in animal carcasses by hunters. This action or inaction is alleged to violate RCRA because the Forest Service is creating or contributing to the creation of an imminent and substantial endangerment to human health or the environment in the forest. The district court first dismissed the case for lack of standing, and then because the plaintiffs were in fact seeking an advisory opinion from the court, an action it could not take. The Ninth Circuit reversed those decisions, and now directs the lower court to decide the fundamental RCRA issue, inasmuch as there is a dispute in the courts over the scope of landowner abatement liability, i.e., whether ownership or management of property where disposal of solid waste is occurring and discarded wastes have accumulated is a sufficient basis for contributor liability under RCRA.