Monday, June 29, 2015

U.S. Supreme Court decides Michigan v. EPA

<> U.S. Supreme Court decides Michigan v. EPA - 6/29/15. In the U.S. Supreme Court, Docket Nos. 14–46, 14–47, and 14–49. SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. 
     5-4 decision indicates that EPA unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

Friday, June 26, 2015

Bear Valley Mutual Water v. Salazar/Jewell (DOI)

<> Bear Valley Mutual Water v. Salazar/Jewell (DOI) 6/25/15. In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-57297. The panel affirmed the district court's summary judgment in favor of federal defendants in an action brought by plaintiff municipalities and water districts challenging a 2010 Final Rule designating areas for the threatened Santa Ana sucker as critical habitat.

Wednesday, June 24, 2015

Cook v. Rockwell International

<> Cook v. Rockwell International - 6/23/15. In the U.S. Court of Appeals, Tenth Circuit, Case No. 14-1112.  As summarized by Law360, "The Tenth Circuit ordered a Colorado district court to deliver landowners a ruling on their state nuisance theory after their 25-year plutonium contamination class action against Dow Chemical Co. and the former Rockwell International Corp. failed on federal grounds."
     The Appeals Court ruled in part, "This long lingering litigation deserves to find resolution soon. The judgment of the district court is vacated and the case is remanded for proceedings consistent with this opinion."

Association of Irritated Residents (AIR) v. US EPA

<> Association of Irritated Residents (AIR) v. US EPA - 6/23/15. In the U.S. Court of Appeals, Ninth Circuit, Case No. 13-73398. The panel denied a petition for review brought by the Association of Irritated Residents seeking review of EPA's promulgation of 40 C.F.R. § 52.245 under § 110(k)(6) of the Clean Air Act, an error-correcting provision, after the EPA determined that it had mistakenly approved certain New Source Review rules in 2004 as part of California's State Implementation Plan.

Tuesday, June 23, 2015

WildEarth Guardians v. US Forest Service

<> WildEarth Guardians v. US Forest Service – 6/22/15. In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35434. The panel affirmed in part, reversed in part and remanded for further proceedings the district court's judgment in an action challenging the United States Forest Service's decision to designate over two million acres of public land in the Beaverhead-Deerlodge National Forest for use by winter motorized vehicles.

Aransas Project v. Bryan Shaw

<> Aransas Project v. Bryan Shaw - 6/22/15. In the U.S. Supreme Court, Docket No. 14-1138. Petition denied. The case from the Fifth Circuit involves the deaths of 23 endangered whooping cranes. The Aransas Project sued directors of the Texas Commission on Environmental Quality under the Endangered Species Act. TAP sought and was granted an injunction prohibiting TCEQ from issuing new permits to withdraw water from rivers that feed the estuary where the cranes make their winter home. The injunction was reversed by the Appeals Court and will now stand.

Thursday, June 18, 2015

Cottonwood Environmental Law Center v. US Forest Service

<> Cottonwood Environmental Law Center v. US Forest Service - 6/17/15. In the U.S. Court of Appeals, Ninth Circuit, Case No. 13-35624. The panel affirmed the district court's holding that the United States Forest Service violated Section 7 of the Endangered Species Act when it failed to reinitiate consultation after the United States Fish and Wildlife Service designated critical habitat for the Canada lynx on National Forest land; affirmed the district court's denial of injunctive relief to Cottonwood Environmental Law Center; and remanded to provide Cottonwood an opportunity to make an evidentiary showing that specific projects would likely cause irreparable damage to its members' interests.

South Carolina Coastal League v. US Army Corps of Engineers

<> South Carolina Coastal League v. US Army Corps of Engineers - 6/17/15. In the U.S. Court of Appeals, Fourth Circuit, Case No. 14-1796. The League brought the present action against various parties under federal law to stop what it fears will be significant degradation to 485 acres of freshwater wetlands and its conversion to saltwater wetlands.
     The Appeals Court affirmed the district court's order dismissing this action as moot and affirmed the district court's denial of the League's motion seeking leave to amend its First Amended Complaint.

Tuesday, June 16, 2015

Aera Energy LLC v. FERC

<> Aera Energy LLC v. FERC – 6/16/15. In the U.S. Court of Appeals, D.C. Circuit, Case No. 13-1138 & 13-1303. Petitioners Aera Energy LLC and several other natural gas and transportation companies seek review of different aspects of seven orders issued by the Federal Energy Regulatory Commission during rate proceedings. 

     The Appeals Court concludes that the Commission complied with the Natural Gas Act and court precedents and responded meaningfully to petitioners' objections and articulated a rational explanation for its decisions -- the petitions are denied.

Volvo Powertrain Corp v. United States

<> Volvo Powertrain Corp v. United States - 6/15/15. In the U.S. Supreme Court, Docket No. 14-748. Appealed from the U.S. Court of Appeals for the District of Columbia Circuit, Case No. (12-5234). Petition denied. Regarding a $72 million in penalties against Petitioner for 7,262 engines that were neither built nor sold in America, and whether EPA exercised extraterritorial enforcement authority not granted to it under the Clean Air Act

Friday, June 12, 2015

Pesticide Action Network v. U.S. EPA

<> Pesticide Action Network v. U.S. EPA - 6/10/15. In the U.S. Court of Appeals, Ninth Circuit, Case No. In response to a petition for a writ of mandamus filed by the Pesticide Action Network North America and Natural Resource Defense Council, the panel directed the United States Environmental Protection Agency ("EPA") to file a status report with the Court no later than June 30, 2015 concerning EPA's response to petitioners' 2007 administrative petition requesting that EPA cancel registration for the pesticide chlorpyrifos and retained jurisdiction over the case.

Alaska Wilderness League v. Sally Jewell (U.S. DOI)

<> Alaska Wilderness League v. Sally Jewell (U.S. DOI) 6/11/15. In the U.S. Court of Appeals, Ninth Circuit, Case No. 13-35866. The panel affirmed the district court's summary judgment in favor of federal defendants and Shell Gulf of Mexico, Inc. and Shell Offshore Inc. in an action brought by environmental groups alleging that the Bureau of Safety and Environmental Enforcement acted unlawfully in approving two of Shell's oil spill response plans for its oil leases in the Beaufort and Chukchi Seas on Alaska's Arctic coast.

Wednesday, June 10, 2015

In Re: Murray Energy Corp.

<> In Re: Murray Energy Corp. - 6/9/15. In the U.S. Court of Appeals, D.C. Circuit, Case No. 14-1112, 14-1151 & 14-1146. The Appeals Court said, "Petitioners are champing at the bit to challenge EPA's anticipated rule restricting carbon dioxide emissions from existing power plants. . . They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule. . .
     "We do not have authority to review proposed agency rules. In short, we deny the petitions for review and the petition for a writ of prohibition because the complained-of agency action is not final." [There was a separate concurring opinion]

Tuesday, June 9, 2015

Aurora Energy Services, LLC v. Alaska Community Action on Toxics

<> Aurora Energy Services, LLC  v. Alaska Community Action on Toxics - 6/8/15. In the U.S. Supreme Court, Case No. 14-1060. Petition Denied. The Supreme Court declined to hear an appeal made by Aurora Energy Services, LLC, and Alaska Railroad Corporation, making it possible for the companies to be held responsible for spilling coal into Resurrection Bay from their Seward-based loading facility.

Friday, June 5, 2015

Adkisson v. Jacobs Eng'g Grp, Inc

<> Adkisson v. Jacobs Eng'g Grp, Inc - 6/2/15. In the U.S. Court of Appeals for the Sixth Circuit, Case No. 14-6207. The case involves a In 2008, a KIF Kentucky coal-ash containment dike that failed, spilling 5.4 million cubic yards of coal-ash sludge over 300 acres of adjacent land.
     The Plaintiffs worked on the KIF remediation and, in 2013, sued, alleging that Jacobs improperly monitored fly ash; inadequately trained workers about hazards of inhaling toxic fly ash; inadequately monitored their medical conditions; denied requests for respirators and dust masks; exposed them to high concentrations of flyash toxic constituents; and fraudulently concealed that exposure.
     The district court dismissed for lack of subject-matter jurisdiction, concluding that Jacobs was entitled to government-contractor immunity as a corollary of the discretionary-function exception to the Tort Claims Act, 28 U.S.C. 2674. The Appeals Court reversed, finding that such immunity is not jurisdictional and that the court should have considered a motion to dismiss for failure to state a claim.

Lost Tree Village Corp. v. United States

<> Lost Tree Village Corp. v. United States - 6/1/15. In the U.S. Court of Appeals for the Federal Circuit, Case No. 14-5093. The Appeals Court agreed with the trial court that the Army Corps of Engineers denial of an application under the Clean Water Act diminished a development value by 99.4% and constituted a per se taking and awarded Lost Tree $4,217,887.93 to the developer.

Wednesday, June 3, 2015

Carbon Sequestration Council v. EPA

<> Carbon Sequestration Council v. EPA - In the U.S. Court of Appeals, D.C. Circuit, Case No. 14-1046. Under the Safe Drinking Water Act, Class VI wells are designated to receive carbon dioxide streams generated as part of a climate change mitigation program known as "carbon capture and storage."
     On Jan. 3, 2014, EPA issued a final rule in which it determined that supercritical carbon dioxide injected into Class VI underground wells for purposes of geologic sequestration is "solid waste" within the meaning of RCRA. Petitioners seek review of EPA's "solid waste" determination, arguing that the supercritical carbon dioxide streams at issue in this rule are not RCRA solid waste.
     The Appeals Court ruled, "Neither Southern nor Occidental can show any injury sufficient to satisfy the requirements of Article III. They therefore lack standing. Carbon Sequestration Council lacks standing because Southern lacks standing. And American Petroleum Institute lacks standing because Occidental lacks standing. The petitions for review are hereby dismissed."

Hermes Consolidated, LLC v. EPA

<> Hermes Consolidated, LLC v. EPA - In the U.S. Court of Appeals, D.C. Circuit, Case No. 14-1016. Petitioner Wyoming Refining Company operates an oil refinery located in Newcastle, Wyoming. WRC is subject to EPA's renewable fuels program, but obtained an exemption through 2012. WRC unsuccessfully petitioned EPA for an extension of its exemption through 2014. The company now seeks review of EPA's denial.
     The Appeals Court ruled, "We reject WRC's various challenges other than those identifying two mathematical errors in EPA's independent analysis of WRC's financial data. . . We therefore vacate EPA's decision and remand to allow the agency to reevaluate WRC's petition using the correct figures."

MS Comm. Environ. Quality v. EPA

<> MS Comm. Environ. Quality v. EPA - In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-1309 (consolidated with a number of cases). In these consolidated petitions, several states, counties, industrial entities and environmental organizations challenge the EPA's determination that certain geographic areas are, or are not, in "attainment" with the EPA's ground-level ozone NAAQS.
     The Appeals Court ruled, ". . .because the EPA complied with the Constitution, reasonably interpreted the Act's critical terms and wholly satisfied—indeed, in most instances, surpassed—its obligation to engage in reasoned decision-making, we deny the consolidated petitions for review in their entirety."

Monday, June 1, 2015

Sierra Club v. Bostick

<> Sierra Club v. Bostick - 5/29/15. In the U.S. Court of Appeals, Tenth Circuit, Case No. 14-6099. The case involves the authority of the U.S. Army Corps of Engineers to issue nationwide permits under § 404(e) of the Clean Water Act to authorize activities involving discharge of dredged or fill material in U.S. waters and wetlands.
     TransCanada Corporation proposed to rely on the nationwide permit to build an oil pipeline, the Gulf Coast Pipeline (the southern leg of the Keystone XL pipeline). Three environmental groups challenged the validity of the nationwide permit and verification letters.
     The district court rejected these challenges and entered judgment for the defendants. The Appeals Court affirmed the entry of judgment in favor of the defendant Corps.