Justia Government & Administrative Law Opinion Summaries

BNSF Railway sought a declaration that the Interstate Commerce Commission Termination Act of 1995 (ICCTA) preempts Clark County, Washington’s permitting process. Clark County asserted that BNSF needed to obtain a permit for a project to upgrade an existing track and construct a second track in the Columbia River Gorge.The Ninth Circuit affirmed summary judgment in favor of BNSF. Under the ICCTA, the Surface Transportation Board has exclusive jurisdiction over rail carriers and track construction. If an apparent conflict exists between the ICCTA and a federal statute, then the courts must strive to harmonize the two laws, giving effect to both if possible. The court rejected an argument that the Columbia River Gorge National Scenic Area Act is such a federal statute. The Gorge Act does not establish national environmental standards but provides a framework for a commission of state-appointed officials to adopt a management plan and implement it through county land use ordinances. The Columbia River Gorge Commission retains final say over the approval and enforcement of the management plan and local county ordinances; enforcement actions may be brought in state court. The Gorge Act is not comparable to federal environmental laws and nothing in the Gorge Act indicates that the local ordinances otherwise have the force and effect of federal law. View "BNSF Railway Co. v. Friends of the Columbia River Gorge" on Justia Law

Ameren appeals an adverse judgment of the district court in a Clean Air Act (CAA) enforcement action brought by the United States, acting at the request of the EPA Administrator, arguing that the district court erroneously found it liable for not obtaining permits for projects at its Rush Island Energy Center and assessing liability under the applicable federal regulations. Ameren also contends that the district court ordered legally flawed injunctions at both Rush Island and at a different plant, Labadie Energy Center.The Eighth Circuit affirmed the district court's liability determination, holding that the district court did not err in holding that the Rush Island projects required permits through application of the actual-to-projected-actual applicability test under 40 C.F.R. 52.21(a)(2)(iv)(c), incorporated by reference in section 6.060(8)(A) of the Missouri state implementation plan (SIP). The court also held that the district court did not impermissibly shift the burden of proof to Ameren in proving the applicability of the demand-growth exclusion; the district court did not err in holding that to prove the applicability of the demand-growth exclusion, Ameren had to establish that demand on the unit increases; and the district court did not err in holding that no special standard of care evidence is required for the factfinder to be able to determine whether a reasonable power plant operator or owner would have expected the projects to cause a significant emissions increase. Furthermore, even assuming that the district court abused its discretion by admitting the expert testimony, any error would be harmless. However, the court reversed in part the remedial portion of the district court's order concerning the Labadie plant. Finally, the district court had jurisdiction to consider whether Ameren violated the express terms of its Title V permit. The court remanded for further proceedings. View "United States v. Ameren Missouri" on Justia Law

The County appeals from a judgment and issuance of a peremptory writ of mandate in a proceeding under the California Environmental Quality Act (CEQA).In the published portion of the opinion, the Court of Appeal addressed the exhaustion of administrative remedies and the interpretation of the existing facilities exemption. The court concluded that the issue exhaustion requirement does not apply to challenges to the exemptions because the county did not provide adequate notice that CEQA exemptions would be considered at the public hearing held by its Board of Supervisors. Consequently, the county did not provide an opportunity for members of the public to raise objections to its reliance on those exemptions. The court resolved the ambiguity by interpreting the word "facilities" to exclude unlined landfills and therefore concluded that the county misinterpreted the Guidelines and violated CEQA when it concluded the existing facilities exemption applied to the project. The court affirmed the judgment. View "Los Angeles Department of Water and Power v. County of Inyo" on Justia Law

The Sacketts purchased a soggy residential lot near Idaho’s Priest Lake in 2004, planning to build a home. Shortly after the Sacketts began placing sand and gravel fill on the lot, they received an Environmental Protection Agency (EPA) administrative compliance order, indicating that the property contained wetlands subject to protection under the Clean Water Act (CWA), 33 U.S.C. 1251(a), and that the Sacketts had to remove the fill and restore the property to its natural state.The Sacketts sued EPA in 2008, challenging the agency’s jurisdiction over their property. During this appeal, EPA withdrew its compliance order. The Ninth Circuit affirmed summary judgment in EPA’s favor. EPA’s withdrawal of the order did not moot the case. EPA’s stated intention not to enforce the order or issue a similar order in the future did not bind the agency. EPA could potentially change positions under new leadership. The court upheld the district court’s refusal to strike from the record a 2008 Memo by an EPA wetlands ecologist, containing observations and photographs from his visit to the property. The court applied the “significant nexus” analysis for determining when wetlands are regulated under the CWA. The record plainly supported EPA’s conclusion that the wetlands on the property were adjacent to a jurisdictional tributary and that, together with a similarly situated wetlands complex, they had a significant nexus to Priest Lake, a traditional navigable water, such that the property was regulable under the CWA. View "Sackett v. United States Environmental Protection Agency" on Justia Law

The FCC regulates facilities and devices that transmit radio waves and microwaves, including cell phones and facilities for radio, TV, and cell phone communications, 47 U.S.C. 302a(a). Radio waves and microwaves are electromagnetic energy, “radiofrequency” that move through space, as “RF radiation.” RF radiation at sufficiently high levels can heat human body tissue, resulting in “thermal” effects. Exposure to lower levels of RF radiation might also cause other biological effects.The National Environmental Policy Act (NEPA) requires federal agencies to account for the environmental effects of their proposed actions; a “major Federal action” requires an environmental impact statement, 42 U.S.C. 4332(C). If it is unclear whether a proposed action will “significantly affect[] the quality of the human environment,” the agency may prepare a limited environmental assessment. An agency may also use “categorical exclusions.” Pursuant to NEPA, the FCC has guidelines for human exposure to RF radiation, last updated in 1996. In 2013, the FCC issued a notice of inquiry regarding the adequacy of its guidelines and sought comments on five issues in response to changes in the ubiquity of wireless devices and in scientific standards and research. In 2019, the FCC issued a final order, declining to undertake any of the changes contemplated in the notice of inquiry.The D.C. Circuit remanded. The FCC failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer. View "Environmental Health Trust v. Federal Communications Commission" on Justia Law

In 2018, faced with the “impending loss of the Raiders to Las Vegas and the Golden State Warriors to San Francisco,” the Legislature sought to facilitate “a new baseball park” at the Howard Terminal site in Oakland. The Project would create many high-wage, highly skilled jobs and present “an unprecedented opportunity to invest in new and improved transit and transportation infrastructure and implement sustainability measures.”Assembly Bill 734 is special legislation applicable solely to the Project. Pursuant to Public Resources Code section 21168.6.7, the baseball park and any nonresidential construction in the Project must achieve LEED gold certification, and residential construction must achieve either LEED gold certification or “the comparable GreenPoint rating, including meeting sustainability standards for access to quality transit.” The project must also achieve greenhouse gas neutrality, reduce by 20 percent the collective vehicle trips, and offer a “comprehensive package of community benefits.” Section 21168.6.7 requires certification by the Governor that the Project meets all those criteria to qualify for expedited administrative and judicial review under the California Environmental Quality Act (CEQA). Objectors argued that the Governor’s authority to certify the project expired on January 1, 2020. The trial court and court of appeal upheld the Governor’s ongoing certification authority. On February 11, 2021, the Governor certified the Howard Terminal Project for expedited CEQA review. View "Pacific Merchant Shipping Association v. Newsom" on Justia Law

The Army Corps of Engineers proposed the dredging of San Francisco Bay’s 11 navigational channels during and after 2017. The San Francisco Bay Conservation and Development Commission and the San Francisco Regional Water Control Board both approved the proposals subject to certain conditions. The Commission alleged that the Corps’ failure to comply with certain conditions violated the Coastal Zone Management Act (CZMA), 16 U.S.C. 1452(1). An environmental nonprofit organization intervened, contending that the Corps also violated the Clean Water Act, 33 U.S.C. 1311(a), 1341(a)(1). The Commission sought a commitment from the Corps regarding what to do with the dredged material; in order to protect imperiled native fish, the Commission and Board sought to limit the Corps’ use of a certain dredging method (hydraulic dredging) in two specific Bay Channels.The Ninth Circuit affirmed the district court in favor of the Corps. The condition about where to dispose of dredged material was not itself an enforceable policy under the CZMA and its implementing regulations, nor was it tied to any enforceable policy as contemplated by those regulations. The Corps was therefore not obligated to comply with that regulation. The Corps’ final 2017 plan complied with the express terms of the condition limiting the Corps’ hydraulic dredging in two particular channels. View "San Francisco Bay Conservation and Development Commission v. United States Army Corps of Engineers" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of an action brought by SCAP challenging nonbinding guidance that the EPA issued to recommend a statistical method for assessing water toxicity. Plaintiffs alleged that the EPA had violated the Administrative Procedure Act (APA) by issuing the Test of Significant Toxicity (TST) guidance without following notice-and-comment rulemaking procedures, and that the EPA had violated its own regulations by requiring and using the TST in discharge permits.After determining that it can consider both of the district court's dismissal orders, the panel explained that the APA allows a plaintiff to challenge only final agency action, and an agency's action is final only if it imposes legal consequences. In this case, the guidance at issue imposes no such consequences, and thus the APA does not permit this challenge. View "Southern California Alliance of Publicly Owned Treatment Works v. Environmental Protection Agency" on Justia Law

North Carolina filed suit in state court seeking recovery of an unpaid civil penalty against the Marine Corps for failing an air quality compliance test. After the federal government defendants removed to federal court, the district court dismissed the case.The Fourth Circuit affirmed in part and reversed in part, holding that the Clean Air Act does not preclude removal but does waive sovereign immunity as to the penalty at issue here. The court concluded that the United States properly removed this suit under the federal officer removal statute and rejected North Carolina's contention that the Clean Air Act's state suit provision, 42 U.S.C. 7604(e), implicitly carves out a narrow exception to removal that precludes federal adjudication of this federal immunity defense. Rather, these two statutes are capable of coexistence and, contrary to North Carolina's argument, section 7604(e) does not require actions brought in state court to remain there. The court also concluded that the Clean Air Act unambiguously and unequivocally waives the United States' sovereign immunity as to all civil penalties assessed pursuant to state air pollution law, including punitive penalties like the one at issue here. The court remanded for further proceedings. View "North Carolina v. United States" on Justia Law

The Ninth Circuit denied a petition for review challenging the EPA's findings and its conclusion that Arizona had achieved the statutory required reduction in ozone concentration by July 2018, in compliance with the Clean Air Act. After a major wildfire broke out in the San Bernardino National Forest in southeast California (the Lake Fire), three hundred miles east of the fire, six air quality monitors in the Phoenix region registered abnormally high concentrations of ozone, in excess of the National Ambient Air Quality Standard (NAAQS).The panel concluded that EPA did not act arbitrarily or capriciously in finding a clear causal connection between the Lake Fire and the June 20, 2015 exceedances. The panel explained that the evidence demonstrates that smoke (including ozone precursor chemicals) from the Lake Fire reached the exceedance monitors and caused abnormal ozone readings relative to similar historical conditions. Furthermore, petitioners failed to produce evidence sufficient to overcome the required deference to EPA's technical factual findings where EPA considered each of petitioners' comments during the proposed rule phase and addressed them with specificity; articulated a rational connection between the evidence and its own conclusions; and the resulting conclusion, based on the weight of the evidence, is rational.The panel also concluded that EPA did not act contrary to the Clean Air Act when it suspended the Phoenix nonattainment area's attainment contingency measures requirement after EPA issued a section 7511(b)(2) Attainment Determination. The panel concluded that the Clean Air Act is silent as to whether State Implementation Plans (SIPs) must contain attainment contingency measures after the attainment date and granted EPA's reasonable construction of 42 U.S.C. 7502(c)(9) under Chevron deference. View "Bahr v. Regan" on Justia Law