As the Supreme Court’s new term begins, it will be considering several cases that could have a significant impact on cases involving the Administrative Procedure Act and other federal regulatory litigation. What follows is a summary of last term’s APA-related decisions followed by a preview of two cases currently on the Court’s docket for the … Continue Reading
As noted previously, the Ninth Circuit found, in Arizona v. City of Tucson, 761 F.3d 1005 (9th Cir. 2014), that state government agencies are not afforded the same level of deference as EPA on the question of whether a CERCLA consent decree is fair, reasonable and consistent with CERCLA. Arizona filed a petition for writ … Continue Reading
On September 15, the Eighth Circuit reversed the district court’s order certifying a class of property owners who sought nuisance based damages and injunctive relief. In Smith v. ConocoPhillips Pipe Line Co., No. 14-2191, 2015 WL 5332450 (8th Cir. Sept. 15, 2015) the Court concluded that there was no evidence showing that class members were … Continue Reading
When administrations change, so does policy. That may result in an agency changing its mind. On the federal level, that change — particularly a change in a factual finding — will be subject to review under the Administrative Procedure Act. The Ninth Circuit recently considered such a change in position over whether the Tongass National … Continue Reading
The Third Circuit recently determined that EPA acted within its statutory authority in publishing the Chesapeake Bay TMDL in American Farm Bureau Federation v. United States Environmental Protection Agency, No. 13-4079 (3d Cir. July 6, 2015). My column for the Pennsylvania Law Weekly discusses the decision and the implications for Pennsylvania, a state that did … Continue Reading
Horne v. Department of Agriculture, No. 14-275 (U.S. June 22, 2015), is a takings case about the price support program for California raisins. That may seem a little far afield for environmental lawyers, but the case bears some careful analysis. Among other things, the Court draws a distinction between the analysis appropriate for a regulatory … Continue Reading
Two recent federal appeals court decisions show that landowners can obtain relief for adverse wetlands permitting actions by the U.S. Corps of Engineers – both at the beginning of the permit process and after it concluded. In Hawkes., Inc. v. U.S. Army Corps of Engineers, 782 F.3d 994, the Eight Circuit held that a landowner … Continue Reading
In a 5 to 4 split decision, the U.S. Supreme Court ruled on Monday, June 29th, that the U.S. Environmental Protection Agency (“EPA”) unreasonably interpreted the federal Clean Air Act (“CAA”) when EPA decided deemed that costs were irrelevant in deciding whether to regulate hazardous air emissions from electric utility sources under section 112 of … Continue Reading
In a recent decision, Arizona v. City of Tucson, 761 F.3d 1005 (9th Cir. 2014), the Ninth Circuit found that state government agencies should not be afforded the same deference as EPA on the question of whether a CERCLA consent decree is fair, reasonable and consistent with CERCLA. In my recent column for Pennsylvania Law Weekly, I examine … Continue Reading
From Michael Cooke of GT Tampa The U.S. Court of Appeals for the D.C. Circuit has denied petitions to review the EPA’s proposed rule to regulate carbon dioxide emissions from existing electric generating sources. See In re Murray Energy Corporation, No. 14-1112 (D.C. Cir. June 9, 2015). The proposed the rule was issued under section 111(d) … Continue Reading
A federal district court ruled on March 10 that citizens may bring a RCRA imminent and substantial endangerment case based on the ground deposition of material emitted from a facility’s smoke stacks. The Little Hocking Water Assoc., Inc. v. E.I. du Pont Nemours & Co., 2015 BL 64422, S.D. Ohio, No. 09-cv-1081, 3/10/15. Explicitly rejecting … Continue Reading
Regulators need access to environmentally contaminated sites. They have to study them to determine whether the contamination requires a cleanup, they have to choose a cleanup, they have to conduct or direct implementation of that cleanup, and then they have to provide for its monitoring and maintenance. But when the contaminated property is not the … Continue Reading
My column this month in the Pennsylvania Law Weekly summarizes most (maybe all) of the decisions of the Pennsylvania appellate courts with an environmental dimension in 2014. Read A Review of 2014 Environmental Cases in Pa.’s Appellate Courts, 38 Pa. L. Weekly 28 (Jan. 13, 2015), by clicking here. If I have left something out, … Continue Reading
We have a new opinion today under the Environmental Rights Amendment to the Pennsylvania Constitution. Pennsylvania Environmental Defense Foundation v. Commonwealth, No. 228 M.D. 2012 (Pa. Commw. Ct. Jan. 7, 2015). Maybe the state constitution mandates some sort of environmental impact study before the commonwealth acts. Maybe it means nothing more than that one must comply … Continue Reading
In Hess v. Pa. Pub. Util. Comm’n, No. 1370 C.D. 2013 (Pa. Commw. Ct. Dec. 22, 2014), the Pennsylvania Commonwealth Court en banc considered a petition for review of an order of the Public Utility Commission granting approvals for a transmission line crossing the Susquehanna River. The majority opinion mostly addresses reliability and what constitutes public … Continue Reading
Environmental quality is important, but it is just one set of the objectives of public policy. Is it possible to think about the incentives set by environmental regulatory decisions and the outcomes they induce as part of a more integrated policy? Perhaps not. Consider Michigan v. EPA, No. 14-46 (U.S. Nov. 25, 2014). Last month, … Continue Reading
On September 11, 2014, the Second Circuit issued its decision in New York State Electric & Gas Corp. v. FirstEnergy Corp., No. 11-4143, a CERCLA cost recovery and contribution case arising from the cleanup of coal tar contamination at sixteen manufactured gas plants in New York. New York State Electric & Gas Corp (“NYSEG”) filed a … Continue Reading
Last week, EPA issued guidance to its Regional Administrators that addresses some of the questions raised by the decision in Utility Air Regulatory Group v. United States Environmental Protection Agency, 134 S.Ct. 2427 (U.S. June 23, 2014) (“UARG”). As discussed in our posts of June 23rd and July 14th, that decision raised several issues that … Continue Reading
In February 2012, Pennsylvania adopted comprehensive revisions to its Oil and Gas Act known as “Act 13.” Among the changes was an expanded preemption of local regulation of oil and gas activities. Prior law prohibited municipalities from regulating “how” oil and gas development would proceed, but permitted zoning control over “where” development could occur. Act … Continue Reading
A trial court in Albany, New York has landed another blow against high-volume hydraulic fracturing (“HVHF”) in New York by tossing two lawsuits (decisions available here and here) brought by property owners and a bankrupt operator challenging New York’s failure to complete its environmental review of high-volume hydraulic fracturing in a timely manner. This comes a little … Continue Reading
In a split decision, the U. S. Supreme Court ruled on Monday June 23rd that the U.S. Environmental Protection Agency (“EPA”) does not have authority under the federal Clean Air Act to require major source permits based solely on emissions of greenhouse gases. Specifically, the Court said that the agency may not treat greenhouse gases … Continue Reading
Today, the Supreme Court issued its opinion in CTS Corp. v. Waldburger et al., No.13-339 (June 9, 2014) (slip op.) [link], in which it held that CERCLA section 309, 42 U.S.C. § 9658, does not preempt statutes of repose, reversing the Fourth Circuit. Section 9658(a) preempts state law statutes of limitation for personal injury and … Continue Reading
On May 22, 2014, the Supreme Court of Florida reversed the Fifth District Court of Appeals in the case of South Florida Water Management District v. RLI Live Oak, LLC, No. SC 12-2336 (Fla. May 22, 2014), an appeal brought by the water management district over the applicable burden of proof when imposing civil penalties. … Continue Reading
On April 29, the Supreme Court revived EPA’s Cross-State Air Pollution Rule in Environmental Protection Agency v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). That set of rules would have imposed budgets on air emissions by sources in upwind states in order to implement the “Good Neighbor” provision, section 110(a)(2)(D)(i)(I) of the Clean … Continue Reading
