Justia Government & Administrative Law Opinion Summaries

Articles Posted in Environmental Law
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In this consolidated appeal from the United States District Court for the Eastern District of Louisiana, the United States Court of Appeals for the Fifth Circuit ruled on a decade-long dispute between landowners Garry L. Lewis and G. Lewis-Louisiana, L.L.C. (together referred to as "Lewis") and the United States Army Corps of Engineers (USACE) over the federal jurisdiction of "wetlands" on their Louisiana property under the Clean Water Act (CWA). The case involved numerous Supreme Court cases, jurisdictional determinations, federal court cases, and appeals.Lewis's property was primarily used as a pine timber plantation. In 2013, Lewis requested a jurisdictional determination from the USACE to develop the property, which went unanswered until a formal request two years later. The USACE concluded in 2016 that portions of the property contained wetlands subject to CWA jurisdiction. Lewis appealed, leading to a reconsideration and a substantially unchanged jurisdictional determination in 2017. Lewis then filed suit in federal court, claiming that the Corps' action was arbitrary and capricious under the Administrative Procedure Act (APA). The district court found the administrative record insufficient to support the conclusion that wetlands on the property met the "adjacency" test or had a "significant nexus" to traditional navigable waters and remanded the case back to USACE for further review.On remand, USACE revised the data and applied a recently issued regulation. However, the revised determination nearly doubled the alleged wetlands on one of Lewis's property tracts. After another round of litigation and appeals, the case reached the Fifth Circuit, where Lewis argued that under no interpretation of the administrative facts could his property be regulated as "wetlands" subject to the CWA.The Fifth Circuit agreed with Lewis, drawing upon the Supreme Court's recent decision in Sackett v. EPA which held that the CWA only extends to wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right. The Fifth Circuit found that there was no such connection between any plausible wetlands on Lewis's property and a "relatively permanent body of water connected to traditional interstate navigable waters," and thus, there was no factual basis for federal Clean Water Act regulation of these tracts.The court also rejected the government's arguments that the appeal was moot due to the withdrawal of the 2020 jurisdictional determination, and that the case should be remanded to USACE for reevaluation. The court held that the agency's unilateral withdrawal of a final agency action did not render the case moot and that remand was not appropriate because there was no uncertainty about the outcome of the agency's proceedings on remand.Consequently, the Fifth Circuit vacated the judgment of the district court and remanded with instructions to enter judgment in favor of Lewis that the tracts in question are not "waters of the United States" under the Clean Water Act as interpreted by Sackett v. EPA. View "Lewis v. USA" on Justia Law

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The US Court of Appeals for the Ninth Circuit ruled that the Environmental Protection Agency (EPA) failed to comply with both the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA) in its decision to amend the registration of streptomycin for use on citrus crops. The case was brought by a group of environmental advocacy and public interest organizations against the EPA.The EPA had concluded that the registration of streptomycin for use on citrus would not cause "unreasonable adverse effects on the environment." However, the court disagreed, finding a lack of substantial evidence for some of the EPA’s conclusions. In particular, the court held that the EPA’s assessment of the risk to pollinators (bees) was incomplete or inadequately explained, and the agency failed to provide a sufficient explanation for the registration labels’ suggestion that streptomycin could be used to prevent citrus diseases.Furthermore, the court also found that the EPA failed to comply with the ESA. According to the ESA, the EPA should have determined whether the pesticide registration "may affect" any endangered species or critical habitat, which it failed to do.As a result, the court vacated the EPA’s amended registration of streptomycin for use on citrus crops and remanded the case back to the agency to address the errors in its FIFRA analysis and to conduct an ESA effects determination. View "MIGRANT CLINICIANS NETWORK V. USEPA" on Justia Law

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The United States Court of Appeals for the Ninth Circuit affirmed the district court's summary judgment in favor of the U.S. Forest Service in a case brought by Earth Island Institute and the Center for Biological Diversity. The plaintiffs challenged the Forest Service's approval of the Three Creeks Project, which aimed to restore the Inyo National Forest to its pre-European settlement conditions by thinning excess trees, removing excess fire fuel, and using prescribed fire. The plaintiffs argued that the Forest Service failed to adequately consider alternatives to logging, failed to solicit public comments following its 2018 Environmental Assessment, and failed to supplement its National Environmental Policy Act (NEPA) analysis following a 2020 bark-beetle outbreak. The court found that the plaintiff had not shown that the Service's approval of the Three Creeks Project was arbitrary, capricious, or otherwise unlawful. The Service considered a reasonable range of alternatives, offered the public a reasonable opportunity to comment, and was not required to conduct further NEPA analysis following the bark-beetle outbreak. The court also held that the plaintiff had not properly raised its proposed alternatives during the comment period, and therefore it failed to exhaust its argument. Additionally, the court did not consider the plaintiff's claim regarding the Inyo Craters Project since it was not included in its amended complaint. View "EARTH ISLAND INSTITUTE V. USFS" on Justia Law

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In the case of PNW Metal Recycling, Inc., et al. v. Oregon Department of Environmental Quality, the Oregon Supreme Court held that the Department of Environmental Quality's (DEQ) internal decision to adopt a new interpretation of a statute did not constitute a "rule" under the Oregon Administrative Procedures Act (APA).The case emerged when the DEQ changed its interpretation of the "auto-dismantler exception" in the solid waste management regulations. Previously, facilities dismantling and recycling used vehicles were not required to obtain a permit for solid waste disposal, even if they also disposed of non-vehicle solid waste. However, in 2018, the DEQ informed the petitioners that it had revised its interpretation of the relevant statutes, and the facilities would now be required to obtain permits.The petitioners, who operate such facilities, challenged this change, arguing that the DEQ's new position constituted a "rule", meaning it should have been adopted following the APA rulemaking procedures. The Court of Appeals agreed with the petitioners and held the DEQ's decision invalid.However, the Oregon Supreme Court vacated the decision of the Court of Appeals and dismissed the judicial review. The court reasoned that an agency's internal decision to adopt a new statutory interpretation is not, by itself, a "rule" under the APA. Instead, a "rule" is a more formal, generally applicable agency directive, standard, regulation, or statement that implements, interprets, or prescribes law or policy.The court highlighted that the APA provides different avenues for agencies to announce policy, not all of which require formal rulemaking. Specifically, an agency can announce a general policy applicable to a case and future similar cases during a contested case proceeding, without going through formal rulemaking procedures. The court concluded that the DEQ's revised interpretation of the auto-dismantler exception and its stated intention to require the petitioners to obtain a permit were precursors to an enforcement action that may lead to a contested case proceeding, not a rule. The decision of the Court of Appeals was vacated, and the judicial review was dismissed. View "PNW Metal Recycling, Inc. v. DEQ" on Justia Law

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The United States Court of Appeals for the Ninth Circuit vacated a Biological Opinion (BiOp) by the U.S. Fish and Wildlife Service (the Service) and remanded the case for further consideration. The case involved a dispute over the use of water from the San Pedro River Basin in Arizona by the U.S. Army's Fort Huachuca. The Army uses water from the basin, which is also home to several species protected under the Endangered Species Act. To compensate for the water use, the federal government proposed a "conservation easement" that would limit the use of nearby land for agricultural purposes, therefore saving water and protecting the wildlife that depend on the basin. The plaintiffs, environmental organizations, argued that the BiOp lacked evidence to support the claim of water savings from the easement. The Ninth Circuit agreed, stating that the government's determination that the easement would not jeopardize wildlife was arbitrary and capricious due to the lack of evidence supporting the claimed water savings. The court stated that the government must show that the benefit from the conservation easement would be "reasonably certain" under the relevant regulations. The court also held that the government's conclusion that reduced flow in the Babocomari River, a tributary of the San Pedro River, would not jeopardize the northern Mexican gartersnake was not arbitrary and capricious. View "CENTER FOR BIOLOGICAL DIVERSITY V. DEB HAALAND" on Justia Law

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In this case, the Town of Milton, Massachusetts, petitioned for a judicial review of the Federal Aviation Administration's (FAA) final order authorizing a new flight procedure at Boston's Logan International Airport. The new procedure, aimed at increasing safety and efficiency, covers a narrower swath of airspace over the Town of Milton. The Town argued that the FAA's environmental analysis of the noise impacts failed to comply with the National Environmental Policy Act (NEPA). However, the United States Court of Appeals For the First Circuit dismissed the Town's petition, ruling that the Town does not have standing to challenge the FAA's final order. The court concluded that the harms the Town asserted, including the impact of noise on its residents and the time and money spent addressing these issues, were not legally cognizable harms to the Town itself. The court agreed with other courts of appeals that have dismissed municipal NEPA challenges to FAA orders for lack of Article III standing because those challenges failed to show cognizable injury to the municipalities themselves. View "Milton, MA v. FAA" on Justia Law

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The Supreme Court affirmed in part and reversed in part the judgment of the district court ruling in favor of the Montana Environmental Information Center and Sierra Club (collectively, Conservation Groups) and vacating the Montana Department of Environmental Quality's (DEQ) permit for Westmoreland Rosebud Mining, LLC's proposed coal mine expansion, holding that the Board of Environmental Review (Board) made several errors when it upheld DEQ's findings.Specifically, the Supreme Court held (1) the district court erred in concluding that reversal of the burden of proof was prejudicial error; (2) the Board committed reversible error in limiting the Conservation Groups' evidence and argument; (3) the district court erred in determining that it was reversible error to admit certain testimony as proper rebuttal; (4) the Board erred when it concluded that no water quality standard violation could occur; (5) the Board properly considered cumulative impact of mining activity in its analysis; (6) the Board properly relied on evidence regarding aquatic life; (7) the attorney fee award was improper; and (8) the district court erred in ruling that the Board was properly included as a party on judicial review. View "Mont. Environmental Information Center v. Westmoreland Rosebud Mining" on Justia Law

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This case involves alleged violations of the Clean Water Act (CWA). Plaintiff Cottonwood Environmental Law Center (Cottonwood) filed suit against Defendants Big Sky County Water & Sewer District No. 363 (the District) and Boyne USA, Inc. (Boyne) for their alleged discharge of treated wastewater into the West Fork of the Gallatin River (the West Fork) without a National Pollution Discharge Elimination System (NPDES) permit. The district court ruled that Cottonwood could not advance a direct-discharge theory of CWA liability against the District at trial. The district court also dismissed Cottonwood’s claim against Boyne for lack of proper notice.   The Ninth Circuit affirmed in part and reversed in part the district court’s judgment. Affirming in part, the panel held that the district court properly ruled, in orders denying summary judgment, that Cottonwood could not advance a direct-discharge theory of liability against the District at trial. The panel held that it had jurisdiction to review the district court’s orders denying summary judgment to Cottonwood because, in those orders, the district court rejected Cottonwood’s direct-discharge theory as a matter of law. The panel affirmed the district court’s holding that the District could not be liable on a direct-discharge theory because an underdrain pipe below but not connected to the District’s holding ponds did not transfer pollutants between meaningfully distinct water bodies and thus was not a “point source” of pollution. Reversing the district court’s dismissal of Cottonwood’s Clean Water Act the panel held that Cottonwood’s letter to Boyne provided sufficient notice of Cottonwood’s indirect-discharge theory of liability. View "COTTONWOOD ENVIRONMENTAL LAW CENTER, ET AL V. RON EDWARDS, ET AL" on Justia Law

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For several years, Defendant, Shannon Poe, engaged in instream suction dredge mining in Idaho’s South Fork Clearwater River (the South Fork) without a National Pollutant Discharge Eliminating System (NPDES) permit. Plaintiff Idaho Conservation League (ICL) sued Poe, arguing that he violated the CWA each time he operated a suction dredge on the South Fork without an NPDES permit. Poe countered that (1) his suction dredge mining did not add pollutants to the South Fork and therefore did not require an NPDES permit, and (2) even if his suction dredge mining did add pollutants, those pollutants are “dredged” or “fill” material regulated exclusively pursuant to Section 404, not Section 402, of the CWA. The district court granted summary judgment to ICL. Poe appealed the judgment as to liability.   The Ninth Circuit affirmed. The panel held that to establish a violation of the Clean Water Act’s NPDES requirements, also referred to as Section 402 permitting, a plaintiff must prove that the defendant (1) discharged, i.e., added (2) a pollutant (3) to navigable waters (4) from (5) a point source. As to the first element, the panel held that Poe’s suction dredge mining “added” a pollutant to the South Fork. The panel followed Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990), which upheld Environmental Protection Agency regulations interpreting the Clean Water Act. The panel further held that the processed material discharged from Poe’s suction dredge mining was a pollutant, not dredged or fill material, and therefore required an NPDES permit under Section 402 of the Clean Water Act rather than a permit from the Army Corps of Engineers under Section 404. View "IDAHO CONSERVATION LEAGUE V. SHANNON POE" on Justia Law

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The Inflation Reduction Act (“IRA”) requires the federal government to hold a specific oil-and-gas lease sale (“Lease Sale 261”), covering territory in the northwest and north-central Gulf of Mexico, by September 30, 2023, in accordance with a particular administrative record of decision. A month before that deadline, however, the bureau in the Department of the Interior charged with conducting the sale—the Bureau of Ocean Energy and Management (“BOEM”)—abruptly changed the sale terms, removing six million acres from the lease and imposing new limits on vessels that pass through the to-be-leased area. Plaintiffs—the State of Louisiana, the American Petroleum Institute, Chevron USA, Inc., and Shell Offshore, Inc.—sued BOEM and other federal entities and officials, arguing that BOEM’s implementation of the new terms was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”). The merits panel stayed the preliminary injunction pending its decision on the merits. On appeal, BOEM does not challenge the injunction, instead asking only for enough time to comply with it. Only the four environmental organizations that intervened below (“Intervenors”) challenge the preliminary injunction on appeal.   The Fifth Circuit dismissed the intervenors’ appeal and amended the preliminary injunction to require that the lease sale at issue be conducted within thirty-seven days. The court explained that here, the causal chain of events necessary to support Intervenors’ theory of standing is so attenuated that the alleged harm is not “certainly impending.” Namely, for the complained-of conduct to result in the alleged injury, the following chain of events needs to occur. View "State of Louisiana v. Haaland" on Justia Law