National Parks Conservation Association n v. U.S. EPA

<> National Parks Conservation Association n v. U.S. EPA - 9/29/15. In the U.S. Court of Appeals, Third Circuit, Case No. 14-3147. Environmental groups petitioned EPA's approval of Pennsylvania's SIP regarding atmospheric visibility in national parks and wilderness areas after the state concluded that the costs associated with the controls outweighed the limited visibility improvements they would produce.       The Appeals Court granted the petition in part and deny it in part, and remand the matter to the EPA for further consideration. The Panel said, "In the end, the EPA has identified a host of problems with Pennsylvania's BART analysis. What it has not done, however, is provide a sufficient explanation as to why it overlooked these problems and approved Pennsylvania's SIP."

Sierra Club v. United States Army Corps

<> Sierra Club v. United States Army Corps - 9/29/15. In the U.S. Court of Appeals, D.C. Circuit, Case No. 14-5205. The Panel said the central question in this appeal is the scope of environmental review the National Environmental Policy Act (NEPA) required before a particular oil pipeline was built -- specifically the Flanagan South oil pipeline pumps crude oil across 593 miles of American heartland from Illinois to Oklahoma and owned by Enbridge Pipelines (FSP), LLC, (Enbridge).      On appeal, of the district court denial of preliminary injunctive relief, Sierra Club principally contends that the district court erred by failing to require the agencies to analyze and invite public comment on the environmental impact of the whole pipeline under NEPA, including the lengthy portions crossing private land and not otherwise subject to federal approvals.      The Appeals Court ruled, "We hold that the federal government was not required to conduct NEPA analysis of the entirety of the Flanagan South pipeline, including portions not subject to federal control or permitting. . . agencies were not obligated also to analyze the impact of the construction and operation of the entire pipeline. . . the district court did not abuse its discretion in denying Sierra Club's motion to supplement and amend its complaint, because the proposed new allegations would not have affected the dispositive legal analysis."

Peoples Gas Light and Coke Com v. Beazer East Inc.

<> Peoples Gas Light and Coke Com v. Beazer East Inc. - 9/21/15. In the U.S. Court of Appeals, Seventh Circuit, Case No. 14-3634. Peoples Gas Light and Coke Company brought suit against Beazer East, Inc. to recover costs incurred by Peoples in conducting environmental investigation and removal activities at a property, partially owned by Peoples, known as the Crawford Station site.      On appeal, Peoples contests the district court's dismissal of Count II (contribution under CERCLA) of its complaint. The Appeals Court affirmed the dismissal of Peoples' claims against Beazer for contribution under CERCLA.

Center for Biological Diversity v. U.S. Fish & Wildlife Service

<> Center for Biological Diversity v. U.S. Fish & Wildlife Service - 9/16/15. In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-17530. The panel affirmed the district court's summary judgment in favor of the U.S. Fish and Wildlife Service and intervenors Southern Nevada Water Authority and Coyote Springs Investment, LLC in an action brought by the Center for Biological Diversity challenging the Fish and Wildlife Service's Biological Opinion which determined that the execution of a Memorandum of Agreement, concerning a groundwater pump test in Nevada, would not jeopardize the Moapa dace, an endangered species.

Bruce Smith v. ConocoPhillips Pipe Line Co.

<> Bruce Smith  v.  ConocoPhillips Pipe Line Co. - 9/15/15. In the U.S. Court of Appeals, Eighth Circuit, Case No. 14-2191. In this class action alleging defendant had created a nuisance by contaminating drinking well water within a 1.1 mile radius of its contaminated site. The Appeals Court said the district court erred in certifying the class of homeowner plaintiffs; in light of contemporary consensus by persuasive authority on the meaning of common law nuisance in the context of environmental contamination. The Panel concludes that the putative class fear of contamination spreading from the pipeline leak site to harm their property is not a sufficient injury to support a claim for common law nuisance in the absence of proof.

Cascadia Wildlands v. Bureau of Indian Affairs

<> Cascadia Wildlands v. Bureau of Indian Affairs - 9/11/15. In the U.S. Court of Appeals, Ninth Circuit, Case No.  14-35553. Environmental groups challenge the Bureau of Indian Affairs' (BIA) approval of the a timber sale in the Coquille Forest in southwest Oregon. The groups argue that BIA did not adequately consider the cumulative environmental impact under NEPA and that the project is inconsistent with the U.S. Fish and Wildlife Service's (FWS) Recovery Plan for the northern spotted owl.      The district court granted summary judgment to the BIA and the Tribe on both claims. The Appeals Court affirmed.

United States v. CITGO Petroleum Corp.

<> United States v. CITGO Petroleum Corp. - 9/4/15. In the U.S. Court of Appeals, Fifth Circuit, Case No. 14-40128. The Appeals Court said, "CITGO urges this court to reverse the Clean Air Act convictions because the district court erroneously instructed the jury about the scope of a regulation concerning "oil-water separators." CITGO also contends that the MBTA convictions are infirm because the district court misinterpreted the centuryUnited States Court of Appeals Fifth Circuit FILED September 4, 2015 Lyle W. Cayce Clerk Case: 14-40128 Document: 00513186668 Page: 1 Date Filed: 09/09/2015 No. 14-40128 2 old statute as covering unintentional bird kills. We essentially agree with both contentions and reverse."  Fifth Circuit Spurns Second and Tenth Circuits, Sides with Eighth and Ninth Circuits on Interpretation of MBTA "Take" Prohibition - Under the Migratory Bird Treaty Act (MBTA), it is unlawful to "pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird" protected by the Act.  16 U.S.C. 703(a) & 704(a) -- a recent decision, the U.S. Court of Appeals for the Fifth Circuit found that although the MBTA imposes a strict liability standard for any of the aforementioned acts, in order for an unlawful "taking" to occur the defendant must have taken a "deliberate act done directly and intentionally to migratory birds."

Pollinator Stewardship Council v. U.S. EPA

<> Pollinator Stewardship Council v. U.S. EPA - 9/10/15. In the U.S. Court of Appeals, Ninth Circuit, Case No. 13-72346. Petitioners are commercial bee keepers and bee keeping organizations, and they challenge the EPA's approval of insecticides containing sulfoxaflor, which initial studies showed were highly toxic to bees.      The Panel ruled: "In this case, given the precariousness of bee populations, leaving the EPA's registration of sulfoxaflor in place risks more potential environmental harm than vacating it. Moreover, on remand, a different result may be reached. Once the EPA obtains adequate Tier 2 studies, it may conclude that a lower maximum application rate of sulfoxaflor is warranted, or that sulfoxaflor cannot be registered at all because of its effects on brood development and long-term colony strength. We therefore vacate the EPA's unconditional registration of sulfoxaflor and remand for the EPA to obtain further studies and data regarding the effects of sulfoxaflor on bees, as required by EPA regulations. Vacated and Remanded."

CSX Transp., Inc. v. Tenn. Dep't of Revenue

<> CSX Transp., Inc. v. Tenn. Dep't of Revenue - 8/28/15. In the U.S. Court of Appeals Sixth Circuit, Case Nos. 14-6286, 6285, 6287 &6288. These appeals concern the district court's denial of preliminary-injunctive relief to the Plaintiffs-Appellants, five railroad companies (the "Railroads") who individually brought suit against the Tennessee Department of Revenue and Richard Roberts, Commissioner of Revenue (collectively, the "Defendants" or the "State"), in response to the recently enacted Tennessee Transportation Fuel Equity Act (the "Act").       The Railroads contend the Act violates the federal Railroad Revitalization and Regulatory Reform Act of 1976 (the "4-R Act"), which prohibits states from imposing taxes that "discriminat[e] against a rail carrier." 49 U.S.C. § 11501(b)(4).       The Appeals Court affirmed the district court decision in part and remanded in part.