Justia Government & Administrative Law Opinion Summaries

Three appeals against respondent Department of Water Resources all involved litigation related to changes in long-term water supply contracts brought about by the “Monterey Agreement” and “Monterey Amendment.” In the first case, Central Delta Water Agency, et al. (collectively, Central Delta) appealed the trial court’s decision on a petition for writ of mandate challenging the adequacy of the “Monterey Plus” environmental impact report (Monterey Plus EIR) issued in 2010 and the validity of the Monterey Amendment. In the second, Center for Biological Diversity (Biological Diversity) appealed the trial court’s denial of attorney fees incurred in connection with its writ petition against DWR involving the Monterey Plus EIR and Monterey Amendment. In the third case, Center for Food Safety, et al. (collectively, Food Safety) appealed the trial court’s denial of a petition for writ of mandate challenging DWR’s revised environmental impact report on the Monterey Plus project (Revised EIR). Finding no reversible error in any of the three cases, the Court of Appeal affirmed. View "Central Delta Water Agency v. Dept. of Water Resources" on Justia Law

The Department regulates the use of pesticides, including 1,3-Dichloropropene (1,3-D), which is used in agriculture. Only Dow produces 1,3-D for use in California As a condition of Dow’s continued registration of 1,3-D products, the Department maintains a “township cap program,” which limits the amount of the pesticide that may be used each year to reduce cancer risks to bystanders. Plaintiffs filed a petition for a writ of mandate, claiming that the township cap program was an underground regulation in violation of the Administrative Procedure Act and fails to incorporate recommendations from the California Office of Environmental Health Hazard Assessment as required under the Food and Agriculture Code.The trial court granted summary judgment, declaring the township cap program void and directing the Department to engage in formal rulemaking to replace it. The court of appeal affirmed, agreeing that the program is an underground regulation. A regulation subject to the APA may exist even if the agency never promulgates a written policy setting forth the rule. The fact that Dow happens to be the only registrant of 1,3-D does not mean the Department can informally regulate the pesticide at will while its rules are implemented as conditions of Dow’s registration; the township cap program is a rule of general application. The program governs how 1,3-D will be used, not how the Department will register pesticides, and clearly implements and makes specific the law the Department administers. View "Vasquez v. Department of Pesticide Regulation" on Justia Law

In this action for a temporary injunction in connection with the intake and discharge of water from the Long Island Sound and nearby bodies of water by Dominion Nuclear Connecticut, Inc., the owner and operator of a nuclear power station, the Supreme Court ultimately affirmed the judgments in favor of Defendants, holding that the trial court did not err.This case was before the Supreme Court for the third time. Plaintiff brought this action under the Connecticut Environmental Protection Act of 1971 (CEPA), Conn. Gen. Stat. 22a-14 et seq., against Dominion and the Department of Environmental Protection, challenging the Department's decision to issue a National Pollutant Discharge Elimination system permit to Dominion to authorize the intake and discharge of water by the plant, arguing that the permit renewal proceeding was inadequate. On remand for the second time from the Supreme Court, the trial court rendered judgment in favor of Defendants. The Supreme Court affirmed, holding (1) the administrative proceeding was not inadequate; and (2) Plaintiff's remaining claims on appeal were inadequately briefed. View "Burton v. Department of Environmental Protection" on Justia Law

Following a remand from the Vermont Supreme Court, the Public Utility Commission (PUC) denied petitioner’s request for a certificate of public good (CPG) to construct a 2.0 megawatt (MW) solar facility on Apple Hill in the Town of Bennington, Vermont. Petitioner appealed, arguing the PUC erred in: (1) denying its request to amend its petition; (2) concluding that the Bennington Town Plan and Bennington Regional Plan contained clear community standards and that the project would violate those standards; (3) applying the “modified Quechee” standard in the aesthetics analysis without having gone through rulemaking; (4) treating the provisions of the Bennington Town Plan as if they were binding zoning ordinances in violation of 24 V.S.A. 4413; (5) failing to consider the positive benefits of the project with respect to greenhouse-gas emissions in the contexts of its aesthetics analysis; and (6) applying vague and standardless tests in violation of its constitutional rights. After review, the Vermont Supreme Court rejected significant portions of the PUC’s rationale for denying petitioner a CPG, therefore reversed and remanded for additional proceedings. View "In re Petition of Apple Hill Solar LLC" on Justia Law

Justin and Maureen Savage (landowners) owned a 176-acre parcel of undeveloped land in a rural area near Cavendish, Vermont. Snowstone, LLC, sought to buy a portion of landowners’ property to operate a dimensional stone extraction project. After executing the contract, Snowstone requested a jurisdictional opinion from the Act 250 district coordinator to determine whether the project would need an Act 250 permit. A group of neighboring landowners (neighbors) filed comments, arguing that the project would require said permit. The district coordinator issued a jurisdictional opinion, concluding that the proposed project needed an Act 250 permit because the project constituted “development,” defined in relevant part as “[t]he construction of improvements for commercial or industrial purposes on more than one acre of land within a municipality that has not adopted permanent zoning and subdivision bylaws.” Snowstone appealed the jurisdictional opinion to the Environmental Division, presenting the court with a revised contract that reduced the purchase price, removed the right of first refusal, and excised the deed restriction. Neighbors successfully intervened, arguing that the two parcels would be controlled by the same person due to the nature of the sales transaction, that the retained parcel would be “involved land,” and that the project would require a stormwater discharge permit with stormwater treatment facilities that would increase the amount of land necessary to operate the project beyond one acre. The court scrutinized the revised sales contract and determined that, with the excision of the former objectionable provisions, the contract evinced an arms-length transaction such that Snowstone and landowners were not one person. Accordingly, the court concluded that the entire 176 acres did not require an Act 250 permit. The Neighbors appealed, but finding no reversible error, the Vermont Supreme Court affirmed the Environmental Division's judgment. View "In re Snowstone, LLC Act 250 Jurisdictional Opinion" on Justia Law

The Second Circuit denied petitions for review of the EPA's final rule restricting access by consumers to methylene chloride, a dangerous chemical used in paint removal products. Petitioners contend that the Toxic Substances Control Act required the EPA to regulate commercial uses of methylene chloride as well as consumer uses. The court held that HSIA's challenge to the final rule fails because the final rule was supported by substantial evidence. In this case, EPA's implementation of a retailer distribution ban was a reasonable means to achieve its required goal of ensuring that the risks posed by consumer uses of methylene chloride were no longer presented. The court also concluded that the environmental petitioners' challenge is prudentially unripe for review at this time. View "Labor Council for Latin American Advancement v. Environmental Protection Agency" on Justia Law

The Supreme Judicial Court vacated the order of the superior court granting summary judgment in favor of Defendants and dismissing a complaint brought by the Conservation Commission of Norton, holding that the Wetlands Protection Act, Mass. Gen. Laws ch. 131, 40, did not bar this action.The Commission issued an enforcement order to owners of property on which unauthorized fill had been placed by a prior owner, ordering the current owners (Defendants) to remove the fill. The Commission brought this action seeking injunctive relief and civil penalties when Defendants failed to comply with the order. The superior court concluded that that the Act created a statute of repose that prevented the Commission from bringing the enforcement action more than three years following the first transfer of ownership in the property after the alleged violation occurred. The Supreme Judicial Court vacated the order below, holding that the Act did not bar the action because the Commission commenced this enforcement action against Defendants within three years of the recording of the deed by which they acquired title. View "Conservation Commission of Norton v. Pesa" on Justia Law

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