Recent Supreme & Appeals Court Cases

<> Corey v. Rocky Mountain Farmers Union – In the U.S. Supreme Court, appealed from the U.S. Court of Appeals, Ninth Circuit. Docket No. 13-1308. Petition denied with no comment.

<> Sierra Club v. EPA - 6/27/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1144. Petitioners sought review of EPA's Gasification Exclusion Rule, arguing that it violated RCRA's plain language requiring the regulation of hazardous wastes used as fuel. The Panel said, "We hold that the regulation violates the plain language of RCRA and, for that reason, is vacated."

<> Natural Resources Defense v. EPA - 6/27/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 98-1379. Petitioners seek review of a portion of a 1998 EPA's rule creating a "Comparable Fuels Exclusion" from regulation under RCRA. The Panel said, "We conclude the
Comparable Fuels Exclusion is inconsistent with the plain language of section 6924(q), which requires that EPA establish standards applicable to all fuel derived from hazardous waste. . . and vacate the Comparable Fuels Exclusion."

Asarco LLC v. Goodwin

<> Asarco LLC v. Goodwin - 6/25/14. In the U.S. Court of Appeals, Second Circuit, Case No. 13-3954. The Panel concluded that the district court properly dismissed Asarco's direct contribution claims because they are barred by the applicable three‐year statute of limitations, and that its subrogation claims were properly dismissed because Asarco is not a subrogee.   

Asarco LLC v. Union Pacific

<> Asarco LLC v. Union Pacific - 6/23/14. In the U.S. Court of Appeals, Tenth Circuit, Case No. 13-1435. ASARCO sought contribution from Union Pacific, et al defendants, under CERCLA. The district court ruled that ASARCO's direct contribution claim was time-barred under CERCLA and the Appeals Court Panel agreed.

Recent Environmental Cases

<> Utility Air Regulatory Group v. U.S. EPA - 6/23/14. In the U.S. Supreme Court, Docket No. 12–1146. Appealed from the U.S. Court of Appeals, D.C. Circuit. The opinion indicates: "We must decide whether it was permissible for EPA to determine that its motor-vehicle greenhouse-gas regulations automatically triggered permitting requirements under the Act for stationary sources that emit greenhouse gases." The Majority concludes: "We hold that EPA exceeded its statutory authority when it interpreted the Clean Air Act to requirePSD and Title V permitting for stationary sources based on their greenhouse-gas emissions. . . The judgment of the Court of Appeals is affirmed in part and reversed in part."

• Complete background and details from the SCOTUS Blog
• NYT: "Justices, With Limits, Let E.P.A. Curb Power-Plant Gases"
• WSJ: "Supreme Court Reins In Some of EPA's Greenhouse-Gas Efforts"
• API welcomes high court decision EPA carbon rules - WASHINGTON, June 23, 2014 ─ API welcomed a decision by the U.S. Supreme Court to curtail aspects of the Environmental Protection Agency's (EPA) regulations on greenhouse gas (GHG) emissions from stationary. . .

<> Latin Am. for Soc. & Econ. Dev., et al. v. FHWA, et al. - 6/20/14. In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 12-1556/1558. The Panel explains: "Latin Americans for Social and Economic Development and other plaintiffs sued the Federal Highway Administration (FHWA) and certain FHWA officials challenging the FHWA's Record of Decision (ROD) selecting the Delray neighborhood of Detroit, Michigan as the preferred location alternative for a new international bridge crossing between Detroit, Michigan and Windsor, Ontario. Plaintiffs claim that the ROD and preceding process violated the National Environmental Protection Act, Administrative Procedures Act, principles of environmental justice, and other federal laws. 
The district court granted the defendants' motion to affirm the ROD. For the reasons that follow, the decision of the district court is affirmed.

• U.S. appeals court upholds Detroit-Windsor bridge plan - A three-judge federal appeals court panel Friday upheld a decision by the Federal Highway Administration to select the Delray neighborhood of Detroit as the preferred location for a new. . .

<> Sacramento Municipal Utility District v. U.S. DOE - 6/20/14. In the U.S. Court of Appeals, Federal Circuit, Case Nos. 2013-5086, -5087. SMUD agreed to pay $40 million into the Nuclear Waste Fund and DOE promised to begin accepting and disposing of SMUD's spent nuclear. The Panel reversed the combined judgment of $38,845,398 for the period of 1992–2009 and reinstated a prior $53,159,863 award for the period of 1992–2003.

Sierra Club v. U.S. EPA

<> Sierra Club v. U.S. EPA - 6/13/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 13-1014. Petitioners challenge the Memorandum re: the Cross-State Air Pollution Rule on procedural and substantive grounds. The Panel ruled, "The court lacks jurisdiction to consider their challenge because petitioners fail to show they suffer injury that is imminent or certain as a result of the Memorandum, and therefore they lack standing to sue. Accordingly, we dismiss the petition for review."

CTS Corp. v. Waldburger

<> CTS Corp. v. Waldburger - 6/9/14. In the the U.S. Supreme Court, Docket No. 13-339. Appealed from the Fourth Circuit. The issue involved is whether the Fourth Circuit correctly interpreted the preemption provision of CERCLA to apply to state statutes of repose in addition to state statutes of limitations. In a complicated split decision the High Court ruled in part, "A divided panel of the Court of Appeals for the Fourth Circuit held that §9658 does pre-empt statutes of repose. That holding was in error, and, for the reasons that follow, the judgment of the Court of Appeals must be reversed."

Supreme Court Supports Toxic Polluters, Imperils Camp Lejeune Vets' Litigation - "I am outraged by today's Supreme Court decision which once again demonstrates the power of corporations over the rights of individual in this country," said consumer advocate Erin Brockovich.

In Re: Deepwater Horizon

<> In Re: Deepwater Horizon - 6/4/14. In the U.S. Court of Appeals, Fifth Circuit, Case No. 12-30883. Defendants BP Exploration & Production, Inc. (BP) and Anadarko Petroleum Corporation (Anadarko) appeal summary judgment in favor of the government on the question of their liability for civil penalties, which imposes mandatory penalties upon the owners of facilities "from which oil or a hazardous substance is discharged." The Panel ruled:"we affirm the grant of partial summary judgment with respect to the well owners' liability for civil penalties. . ."

Recent Cases

<> GenOn Power Midwest, L.P. v. Bell – In the U.S. Supreme Court, Docket No. 13-1013, Appealed from the Third Circuit Court of Appeals. The High Court denied the petition to appeal. Issue: Whether the Clean Air Act, which provides a comprehensive system for the regulation of air pollution in the United States and leaves "no room for a parallel track," American Electric Power Co. v. Connecticut, preempts state common law nuisance claims that would impose emissions restrictions different from those adopted pursuant to the Act and expose companies operating in compliance with all applicable emissions standards under the Act to liability for their emissions.

<> Venancio Aguasanta Arias v. Dyncorp – In the U.S. Court of Appeals, D.C. Circuit, Case No. 13-7044. The Panel rules: "Appellants, a group of Ecuadorian provinces and individual farmers, alleged that they were injured by an anti-drug herbicide spraying operation in Colombia, conducted by an American company. In a series of rulings, the district judge dismissed all claims. Some of those are appealed. We affirm all but one."

National Environmental Dev v. U.S. EPA

<> National Environmental Dev v. U.S. EPA - 5/30/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 13-1035. In December 2012, two months after EPA's petition for rehearing was denied in Summit Petroleum, the Director of EPA's Office of Air Quality and Standards wrote a directive to the Regional Air Directors of each of the ten EPA regions "to explain the applicability of the decision by the [Sixth] Circuit Court of Appeals." Applicability of the Summit Decision to EPA Title V and NSR Source Determinations (Dec. 21, 2012), reprinted in Joint Appendix ("J.A.")("Summit Directive").

    The Panel in this case granted the petition for review and vacated the Summit Directive.