Case Summaries

Plaintiff National Wildlife Federation (“NWF”) challenged a 2020 Final Rule regarding the certification of wetland maps that occurred between 1990-1996.  The rule was established by the National Resource Conservation Service (“NRCS”). In the 1990 Farm Bill, Congress required NRCS to “delineate wetlands on wetland delineation maps”, certified each map, and periodically “review and update” the certifications. In the 1996 Farm Bill, the statute was amended and stated certifications “shall not be subject to a subsequent wetland certification[.]”

Prior to 2013, state-level NRCS offices were not taking a uniform approach to certified wetland determination requests regarding pre–1996 certifications, and often times farmers were told that their determination was not certified. Beginning in 2013, NRCS began treating pre-1996 determinations as certified if the map was legible and the farmer was informed of their appeal rights. There were a few interim rules, but ultimately in 2020 NRCS issued a final rule substantially the same as the 2013 procedures. The NRCS did not consult with the Fish and Wildlife Service (“FWS”) or create an updated Environmental Impact Statement when issuing the final rule, but it did issue a new finding of “no significant impact” under the National Environmental Policy Act. The plaintiff challenged the 2020 rule arguing that NRCS violated the Administrative Procedures Act (“APA”) by creating the rule “without exercising reasoned decision-making” and moved for summary judgment. The NRCS also moved for summary judgement arguing that NWF did not have standing to bring the suit.

The D.C. District Court found that NWF had Article III standing and could bring a lawsuit against NRCS. NWF has standing through the “associational standing doctrine” which requires that at least one member has standing to sue individually, and the lawsuit pertains to the organization’s purpose. The court found that three members of NWF would have standing to sue because they receive recreational benefits from wetlands.

The D.C. District Court found that NRCS did violate the APA when it created the 2020 Final Rule. NRCS argued that it did not change its policy in 2013; instead, it clarified confusion that occurred at the state level. The court did not agree, it reviewed the record and found that there is a discernable difference beginning in 2013 in how the agency’s treated pre-1996 certifications. NRCS conceded that if the policy had changed, it violated the APA. Therefore, the court found that NRCS violated the APA when it made the 2020 Final Rule regarding pre-1996 certifications.

Nat'l Wildlife Fed v Lohr et. al., Civil Action No. 19-cv-2416 (D.D.C. Feb. 22, 2024).


Defendants are a farmer and his employee. In 2020, on a rented field next to wetlands, they planted soybeans. In June 2020,  the farmer’s employees were attempting to scare off geese that were eating the soybean crop. Later in the summer the farmer’s employee spread something on the edge of the field near the wetlands. The next day the landlord and their son went to the field and noticed yellow corn in a line on the ground, near dead birds. In total there were 17 geese, 1 female mallard duck, and 7 red-winged birds that were found near the corn. The Pennsylvania Game Commission was called and took samples. The testing found that carbofuran was present in the corn and the dead birds.

When asked about the situation the following day, the farmer said that he had directed his employee to spread seed corn “to feed the geese to keep them away from his plants.” He denied that the corn was intentionally poisoned. Instead, he claimed he made a mistake by directing his employee to spread seed corn instead of “regular corn.” He then showed the pink coated seed corn to the investigating agent.

The United States brought three claims against defendants and found the defendants guilty of all three. The defendants were found guilty of conspiracy. The alleged objective of the conspiracy was to (1) violate the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)  by using carbofuran for an illegal purpose and (2) violate the Migratory Bird Treaty Act (MBTA) by unlawfully killing migratory birds without permit or authorization. The court found that both defendants were familiar with agrichemicals and therefore would have known that carbofuran was on the corn and that it had no authorized uses since 2009. Further, the court reasoned that the defendants knew of the illegality of their actions when they directed the investigation agent to the pink seed corn, which “had obviously different physical characteristics” than the corn found in the field. The other two claims against the defendants were violations of FIFRA and MBTA. The court found the defendants guilty of violating both for the same reasons they were guilty of a conspiracy.

U.S. v. Yost & Reese, Crim. No. 2:21-cr-00467-WSH (W.D. Pa. Jan. 24, 2024).


Plaintiffs are environmental organizations challenging the new plan for livestock grazing in the Fremont-Winema National Forest. Plaintiffs sued U.S. Forest Service (USFS) and the U.S. Fish and Wildlife Service (FWS) in the Federal District Court of Oregon. Plaintiffs argued that both the USFS and ESA failed to adequately address the threats this program would pose to the Oregon spotted frog. They argued there were material deficiencies in the USFS's Final Environmental Impact Statement (FEIS) and the FWS's 2018 Biological Opinion (BiOp). On a summary judgment motion, the district court found that both USFS and FWS properly reviewed the environmental consequences of the new livestock grazing program in the FEIS and BiOp. The plaintiffs appealed to the Ninth Circuit.

The Ninth Circuit found that the FEIS properly addressed impacts to the Oregon spotted frog, but the BiOp did not. The court found that the FEIS “rationally explained its decision to focus on habitat characteristics rather than frog numbers[,]” and therefore met the “rule of reason” standard for a FEIS. In contrast, the court found that the BiOp failed to adequately address the impact of both possible climate change and grazing-related impacts on the Oregon spotted frog population. Additionally, the BiOp failed to address what effect climate change could have on water levels and streamflow. The failure to address these two issues was enough to show that the FWS “failed to consider an important aspect of the problem.” Further, the mitigation strategies outlined in the BiOp were not clear or definitive enough to overcome the deficiency. Finally, the BiOp failed to specifically find that the new grazing plan would not jeopardize the Oregon spotted frog’s survival. The Ninth Circuit reversed the grant of summary judgment and vacated the FWS’s BiOp.

W. Watershed Project v. McCay, No. 22-35706 (9th Cir. Oct. 26, 2023).


Plaintiffs are Colorado farmers who own the surface rights above a large oil and gas deposit and defendants hold the mineral rights below. Between 2004-2007, the defendants’ lessees drilled seven vertical wells. Plaintiffs requested that defendants drill directional wells, which would have reduced the number of well site to two. The lessees did not drill directional wells, and the plaintiffs and similarly situated neighbors sued the mineral rights holders for trespass in a class action lawsuit. The crux of their argument is that only using vertical wells when directional wells would have sufficed caused the mineral right holders to exceed their right to drill and the excess wells are a trespass based on unreasonable surface use.

The court used a “three-step burden-shifting approach” examine a trespass claim based on unreasonable surface use. The surface owner must first prove that the mineral right holder “material interfered with surface uses.” Material interference is a high standard. It requires that the surface rights holder prove their use of the land is “completely precluded or substantially impaired” and that there is “no reasonable alternative” to the current use. The court found that the plaintiffs failed to prove material interference since the land was still used for agricultural purposes. The court acknowledged the plaintiffs were inconvenienced by the presence of the wells, but that alone is not enough to establish material interference.

Bay v. Anadarko E&P Onshore, LLC, No. 21-1361 (10th Cir. July 18, 2023).


The County of Kaua‘i authorized the opening of a drainage system outfall several times in 2020 and 2021. The water, containing pollutants, would flow from a ditch through the outfall and into the Pacific Ocean. The County did not have a National Pollutant Discharge Elimination System (NPDES) permit during that time. Plaintiffs brought this lawsuit claiming that the County violated the Clean Water Act (CWA) by discharging a pollutant into navigable waters from a point source without a NPDES permit.

The defendant claimed that the drain was not a point source because there are other nonpoint sources within the plain where the drain is located. However, the CWA defines a point source as “any discernible, confined and discrete conveyance, including but not limited to any ... ditch....” 33 U.S.C. § 1362. Thus, the district court granted the plaintiffs’ motion for summary judgment on the issue of liability.

The case is Na Kia'i Kai v. County of Kaua'i, 2023 WL 3981422 (D. Haw. June 13, 2023)

 


Lawsuits alleging that paraquat exposure led to Parkinson’s disease are currently part of multi-district litigation being litigated in the Southern District of Illinois. In February 2022 the court dismissed public nuisance claims in 316 individual cases involved in the litigation. There have been over 150 more public nuisance claims brought since that time from around the nation against Syngenta and Chevron for their sale of paraquat. The defendants brought a motion to dismiss all public nuisance claims, in all pending cases involved in the multi-district litigation.  The court, attempting to balance judicial economy with the rights of each plaintiff, decided to analyze the public nuisance claim in one of the four trial selection cases.  The court dismissed the public nuisance claim in the trial selection case and deferred ruling on the public nuisance claims with regard to other plaintiffs.

The court analyzed public nuisance under Illinois law. A public nuisance claim in Illinois requires the plaintiff to have a “special injury” compared to “injury sustained by the general public.” The court found that the injury sustained by the plaintiff, specifically Parkinson’s disease, was not a different kind of injury compared to other farmers and rural residents who were exposed to Paraquat. Since the plaintiff could not show a special injury to himself associated to the Paraquat exposure, he does not have standing and his public nuisance claim was dismissed.  

On the issue of the remaining public nuisance claims for other plaintiffs, the court ordered Plaintiff’s leadership counsel to confer with the other plaintiffs and determine whether they will continue to pursue public nuisance claims.

In re Paraquat Products Liability Litigation, No. 3:21-md-3004-NJR (S.D. Ill. June 12, 2023).


In 2004, the National Resources Conservation Service (NRCS) certified a small portion of a farmer’s property as a wetland. The farmer requested a review of the certification several times, most recently in 2017 and 2020. The NRCS denied both requests. The farmer brought suit claiming, among other things, that the NRCS violated the Administrative Procedure Act (APA) by denying his review requests. See 5 U.S.C. § 706(2)(A).

A farmer may request a review of a wetland certification “only if a natural event alters the topography or hydrology of the subject land . . . or if NRCS concurs with an affected person that an error exists in the current wetland determination.” 7 C.F.R. § 12.30(c)(6). The farmer did not argue that he complied with the regulation in 2017. For the 2020 request, the farmer did provide new information through an engineering report. However, when NRCS asked to provide evidence that the NRCS failed to consider specific information topographic information, the farmer failed to respond. As a result, the Eighth Circuit affirmed the grant of summary judgment in favor of the NRCS.

Foster v. Vilsack68 F.4th 37 (8th Cir. 2023).


A hotel owned the .49-acre wetland adjacent to it. The hotel applied for a permit under the Clean Water Act to fill the wetland claiming it intended to build a commercial building. See 33 U.S.C. §§ 1311(a), 1341(a)(1), 1344(a), (e). The hotel received a general permit from the Army Corps of Engineers for the construction of commercial buildings.

A member of an environmental non-profit sought declaratory judgment and the restoration of the wetland. She alleged that the hotel always intended to fill the wetland for landscape purposes; therefore, she claimed that the authorization was null and void because the hotel “intentionally and maliciously misled the Corps.” The hotel moved to dismiss the complaint. The district court granted the motion holding that the individual member did not have standing because she did not allege injury in fact. The member appealed to the Eleventh Circuit.

To have standing, a plaintiff must have suffered an injury due to the actions of the defendant. Here, the member claimed that she suffered an aesthetic injury. Such an injury occurs when a person who uses the affected area will experience diminished aesthetic value due to the challenged activity. Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 183 (2000). The member alleged she gained aesthetic pleasure from viewing the hotel’s wetland.

The court rejected the hotel’s argument that the member must have “actually visited” the wetland before it was filled. Even if the individual member never visited the wetland, the court found that she nevertheless experienced an injury in fact because she could no longer could enjoy viewing the wetland. Additionally, the individual member did not need to have physically occupied the wetland to have an aesthetic interest. While the plaintiff must have an interest in the specific area, the court noted the limitations of this requirement. Otherwise, a plaintiff must “step[] on the Old Faithful geyser at Yellowstone National Park to challenge its destruction.” Lastly, the court found it irrelevant that the wetland was private property. While the member had no right to occupy the wetland, she still had an aesthetic interest in it. Because the individual member sufficiently alleged injury, the court vacated the lower court’s dismissal.

The case is Glynn Env't Coal. v_Sea Island Acquisition LLC, 2022 WL 620284 (11th Cir. March 3, 2022).


Two environmental organizations brought a lawsuit against a dairy farm under the Clean Water Act (CWA). Intending to build a concentrated animal feeding operation (CAFO) on the property, the dairy farm filled two ditches and installed drainage tiles. The plaintiffs allege that the dairy farm site consists of farmed wetlands and that, through the construction activities, the dairy farm violated the CWA. The CWA prohibits the “discharge of dredged or fill material” into waters of the United States. 33 U.S.C. § 1344(a). This includes farmed wetlands. The dairy farm moved to dismiss the lawsuit claiming that there were no wetlands on the property.

The dairy farm sits on a drained lakebed that has been used as farmland since the 1900s. The dairy farm asserts that the plaintiffs’ petition shows that the land is prior converted cropland. Unlike farmed wetland, prior converted cropland does not have hydrologic signs of wetlands and is not subject to CWA jurisdiction. 7 C.F.R. § 12.2. Farmed wetland includes land that was used to produce an agricultural commodity before December 23, 1985, and experiences inundation for at least 15 consecutive days or 10 percent of the growing season. The court found that the complaint alleged wetland factors including evidence of hydrophytic vegetation, hydric soil, and wetland hydrology. Additionally, the complaint alleged that these wetlands have a significant nexus to jurisdictional waters. Because of this, the court denied the motion to dismiss.

Hoosier En't Council v. Nat. Prairie Indiana Farmland Holdings, LLC, 2021 WL 4459509 (N.D. Ind. Sept. 29, 2021).


In this case, two environmental advocacy organizations allege that the U.S. Army Corps of Engineers (Corps) violated the Administrative Procedure Act (APA) by failing to adhere to technical guidance manuals when making a wetland determination. After filling and tiling drainage ditches, a dairy farm contacted the Corps to determine if the farmland and adjacent ditches were subject to the Clean Water Act (CWA). The Corps determined that, unlike the ditches, the farmland did not have signs of a wetland, but was a prior converted cropland not regulated by the CWA. 

Congress directs the Corps to use the Wetlands Delineation Manual to identify jurisdictional wetlands. The plaintiffs argue that the Corps did not rely on relevant factors set forth in the Wetlands Delineation Manual concerning an atypical situation. An atypical situation exists when there are significant alterations to one of the three wetland parameters. A significant alteration includes the construction of drainage systems.

If there is an atypical situation on farmland, the Wetlands Delineation Manual directs the Corps to assess whether the land could have wetland hydrology. The court found that the Corps did not follow the required technical guidance. For example, it did not consider the relevant factors listed in the guidance manuals to determine the hydrology of the land before the alterations or the impact of the dairy farm’s alterations. Additionally, there was no sufficient reason why the Corps deviated from its own guidance. The court held that the Corps determination was arbitrary and capricious and remanded the case for further consideration of the Corps jurisdiction over the farmland.

Hoosier Env't Council v. Nat. Prairie Indiana Farmland Holdings LLC, 2021 WL 4477152 (N.D. Ind. Sept. 29, 2021).


Two plaintiffs brought this Clean Water Act (CWA) citizen’s suit against their neighbors who owned 191 acres of agricultural land. The defendants had installed drainage tile several times in recent years, most recently in 2014. The defendants did not obtain a CWA section 404 permit to discharge dredged materials into a navigable water. In 2015, after a heavy rain, the plaintiffs’ property began to experience unprecedented flooding that destroyed their home and other property. The plaintiffs claimed in their citizen’s suit that the previous tiling activity was an unauthorized discharge of a pollutant in violation of Sections 301 and 404 of the CWA. The defendants moved for summary judgment, asserting that the plaintiffs sought to impose liability for a “wholly past violation.”

To have standing in a citizen suit, the proponent must prove that the alleged violation is continuous or intermittent, but still ongoing. Tamaska v. City of Bluff City, Tenn., 26 F. App'x 482, 485 (6th Cir. 2002). Here, there was insufficient evidence that there was either a continuing discharge of a pollutant or a likelihood of a continuing discharge of a pollutant when the plaintiffs filed this lawsuit in 2018. The defendants had not conducted any tiling activities since the lawsuit was filed, nor was there evidence that they intended to do so.

Additionally, any ongoing discharge from the drainage system only consisted of water. While that may be causing flooding on the plaintiffs’ property, water is not a pollutant. Therefore, the plaintiffs asserted a wholly past violation and their “remedy, if any, [was] not grounded in the Clean Water Act in federal court.” See Bettis v. Town of Ontario, N.Y., 800 F. Supp. 1113, 1120 (W.D.N.Y. 1992). The court declined to exercise supplemental jurisdiction over the plaintiffs’ remaining nuisance and negligence claims and granted the defendants’ motion for summary judgment.

The case is Ward v. Stucke, 2021 WL 4033166 (S.D. Ohio, Sept. 3, 2021).


In 2020, the U.S. Supreme Court issued a ruling in a Clean Water Act (CWA) citizens’ suit against the County of Maui. County of Maui v. Hawai’i Wildlife Fund, 140 S. Ct. 1462 (2020). The plaintiffs claimed that the County of Maui’s wastewater reclamation facility discharged pollutants through groundwater into a navigable water in violation of the CWA. The Court ruled that a permit is required when there is “the functional equivalent of a direct discharge” and remanded the case for further proceedings.

On remand, the plaintiffs moved for summary judgment. The County of Maui claimed that the plaintiffs’ motion relied on a flawed 2013 groundwater tracer study. Arguing that the study was unreliable, the County of Maui petitioned for a pretrial evidentiary hearing. In denying the motion, the court ruled that there was no reason to decide the issue in advance of considering the pending summary judgment motion. The plaintiffs asserted that they did not rely on the study in their motion for summary judgment. The court stated that while it must perform a gatekeeping function to ensure that admitted scientific evidence is relevant and reliable, a pretrial evidentiary hearing was not necessary. The court noted that it might turn out that the court could perform its gatekeeping function when the disputed evidence is offered during the bench trial, which is scheduled for the fall. The case could also be decided on summary judgment without a trial.

Hawaii_Wildlife_Fund_v._County_of_Maui, 2021 WL 1299192 (D. Haw. April 7, 2021).


Plaintiffs brought this citizen suit under the Clean Water Act (CWA) and against a coal company for discharging selenium and ionic pollutants from two mines. The plaintiffs claimed that the defendant exceeded its 402 permit limitations and its 401 certification as well as violated the Surface Mining Control and Reclamation Act (SMCRA). The West Virginia Department of Environmental Protection (DEP) issued two Orders of Compliance for exceeding selenium discharge limitations and a Proposed Consent Order to come into compliance. The defendant claimed these orders precluded the plaintiffs’ claims under section 309(g) of the CWA, which bars a citizen suit if a state has already begun prosecution under comparable state law or the state has already issued a final order imposing a monetary penalty. See 33 U.S.C. § 1319(g).

In rejecting the defendant’s claim, the court found that these orders did not cover the entire scope of the plaintiffs’ allegations, such as those involving ionic pollutants or the SMCRA. Additionally, the allegations that the Proposed Consent Order did address did not meet section 309(g) criteria. First, because the plaintiffs filed the citizen suit more than a year before the DEP sent the Proposed Order, the enforcement action did not predate the citizen suit. Moreover, the court had previously found that the state law was not comparable to the CWA because it “does not provide for the assessment of administrative penalties without the violator's consent.” Sierra Club v. Powellton Coal Co., LLC 662 F. Supp. 2d 514, 530 (S.D. W. Va. 2009). Alleged violators may terminate DEP enforcement action at any time and for any reason. Finally, none of the orders penalized the defendant, but instead gave the defendant the option to not enter into the proposed order at all. Because of this, the court found that the state enforcement did not preclude the plaintiffs’ suit.

Ohio Valley Environmental Coalition v. Lexington Coal Co., 2021 WL 1093631 (S.D.W. Va. March 22, 2021).


Plaintiffs filed this citizen suit under the Clean Water Act (CWA) against a poultry rendering facility for discharging pollutants in excess of its NPDES permit. The defendant, admitting that it had been in continuance noncompliance since the permit took effect, filed for summary judgment claiming that the citizen suit was precluded by an ongoing state enforcement action.

A citizen suit is barred when a state has begun enforcement under a state law “comparable” to the CWA. 33 U.S.C. § 1319(g)(6)(A). The defendant claimed that the Pennsylvania Department of Environmental Protection (PADEP), through two Consent Order and Agreements, had commenced prosecution against the defendant under the Clean Streams Law and that law was comparable to the CWA.

The court acknowledged that there is a circuit split on what findings a court must make to determine comparability. The “overall comparability” standard takes a holistic approach while the “rough comparability” standard requires the state law to be comparable to each of the three provisions found in 33 U.S.C. § 1319(g)(6) regarding penalty assessment, public participation, and judicial review. The court found the “rough comparability” standard more appropriate because it provides uniformity, reduces uncertainty for litigants, and is the most logical interpretation of § 1319(g)(6) requiring that the state law be comparable to that subsection.

After analyzing the two laws, the court ruled that because the Clean Streams Law does not allow adequate public participation, the law is not comparable to the Clean Water Act. Therefore, the court denied the defendant’s motion for summary judgment, and the citizen suit was allowed to continue.

Lower Susquehanna_Riverkeeper v. Keystone Protein Co., 2021 WL 632734 (M.D. Penn. February 18, 2021).


A federal district court recently denied an egg farm’s motion to dismiss a lawsuit alleging that neighbors were damaged by the flow of polluted wastewater coming from the egg farm onto their properties. Specifically, the plaintiff neighbors allege that the egg farm violated the Clean Water Act (CWA) by allowing waste and water runoff containing pollutants to run across their property and into a creek recognized as “waters of the United States.” The CWA citizen suit also includes state allegations of nuisance, negligence, and trespass and seeks injunctive and monetary relief. The egg farmers moved to dismiss, claiming that there was no ongoing violation of the CWA and that the California Regional Water Quality Control Board’s (RWQCB) grant of a conditional waiver for discharges from an animal operation demonstrated that there was no CWA violation.

The court found that the plaintiffs provided sufficient allegations of a pattern of noncompliance under the CWA to avoid the motion to dismiss. In seeking to have the case dismissed as moot, the egg farmers had a “heavy burden” to show the alleged behavior would not happen again. The egg farmers submitted evidence of the RWQCB application stating that manure generated on the property was stored on a tarp, covered if precipitation was forecasted, and disposed of every two weeks. Additionally, the egg farmers claimed that the grant of the waiver demonstrated that there was no CWA violation. The court found that the waiver, as a public record, was a proper subject of judicial notice, but because the parties disagreed over the facts of the document, the egg farmers did not meet their burden to show “the allegedly wrongful behavior could not reasonably be expected to recur.” Because the court denied the motion to dismiss the CWA claim for mootness, the court also retained jurisdiction of the state claims.

Farrar_v._Fluegge_Egg_Ranch_3, Inc., 2020 WL 7869455 (S.D. Cal. Dec. 31, 2020).


The plaintiffs, a consortium of environmental activist groups and community organizers, sued the Environmental Protection Agency (EPA) for not responding to their 2011 petition that alleged that ammonia gas from confined animal feeding operations (CAFOs) endangered public health and welfare, should be designated as a "criteria pollutant" under the Clean Air Act (CAA), and that National Ambient Air Quality Standards should be established for ammonia.  The plaintiffs sought to compel the EPA to respond within 90 days and also claimed that the EPA had violated the Administrative Procedures Act (APA) by not responding.  However, the court ruled that it lacked subject matter jurisdiction to hear the petition, because the plaintiffs should have brought suit under the CAA which requires a 180-day notice before filing.  Because the CAA provided a remedy for the plaintiffs, they were required to sue under the CAA before attempting to sue under the APA. The petition was dismissed.  The plaintiffs have stated in another court filing that they will provide the required 180-day notice and sue under the CAA.  Environmental Integrity Project, et al. v. United States Environmental Protection Agency, No. 15-0139 (ABJ), 2015 U.S. Dist. LEXIS 160578 (D. D.C. Dec. 1, 2015).


The Environmental Protection Agency (EPA), in 2010, unconditionally approved the registration of sulfoxaflor in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act which bars the sales of pesticides that haven’t been approved and registered by the EPA.  The plaintiffs, commercial bee keepers and bee keeping organizations, challenged the approval based on studies which showed that sulfoxaflor was highly toxic to bees.  The court determined that the EPA’s approval was not supported by substantial evidence and that the approval posed the potential for more environmental harm than vacating the approval.  Pollinator Stewardship Council, et al. v. United States Environmental Protection Agency, No. 13-72346, 2015 U.S. App. LEXIS 19945 (9th Cir. Nov. 12, 2015).


The Environmental Protection Agency (EPA) developed a new "Clean Water Rule" detailing the EPA's jurisdiction under the Clean Water Act (CWA) with an effective date of August 28, 2015.  The CWA governs discharges into "navigable waters of the United States" and the rule was EPA's attempt to define it's jurisdiction over such waters.  However, the rule became subject to numerous legal challenges and legislative attempts to block or eliminate it based on the rule expanding the EPA's jurisdiction over navigable waters and other waters associated with navigable waters, including "tributaries" and "adjacent waters" which are now jurisdictional if there is a "significant nexus" to a water of the United States.  Under the rule, there is no "hydrologic connection" necessary to establish a significant nexus.  Any water with a bed and bank and an "ordinary high water mark" that contributes flow directly or indirectly to a navigable water may have the required nexus.  Due to confusion surrounding the rule's requirements and various legal challenges to it, the court issued a nationwide injunction staying the rule immediately.  The court determined that the 18 states challenging the rule had a substantial likelihood of success on the merits that the rule violated established Supreme Court precedent on the issue of EPA jurisdiction, and that the rule's promulgation likely violated the Administrative Procedure Act.  Briefing continues on the issue of whether the court has jurisdiction to consider the merits of the challenge to the rule.  State of Ohio, et al. v. United States Army Corps of Engineers, et al., Nos. 15-3799/3822/3853/3887, 2015 U.S. App. LEXIS 17642 (6th Cir. Oct. 9, 2015).  In a related action, a federal Joint Panel on Multidistrict Litigation (MDL) established for the purpose of coordinating discovery and pre-trial procedure in the litigation filed in numerous courts, denied the EPA's request to consolidate the nine district court cases in the District of Columbia.  The court noted that little discovery was required and that the cases were procedurally postured differently.  In re Clean Water Rule:  Definition of "Waters of the United States," MDL No. 2663, 2015 U.S. Dist. LEXIS 140117 (Oct. 13, 2015).    


At issue in this case was the proper determination of the fair market value of the plaintiff's 229.24-acre commercial property for property tax purposes.  110 acres of the tract contained buildings and other improvements with the balance of the tract considered to be "excess" land.  The tract had been previously used by the U.S. Navy to operate a weapons manufacturing plant where they buried numerous contaminants which resulted in significant environmental damage to the tract.  The tract became subject to an environmental remediation agreement under which the plaintiff was partly responsible for remediation costs.  In 2003, the defendant notified the plaintiff of its intent to increase the tract's property tax assessment.  The plaintiff filed an appeal with the county Board, which affirmed.  The matter then proceeded to court which affirmed.  On further review, the appellate court affirmed in part and vacated and remanded in part.  The appellate court noted that an appraisal must be based on the tract's current status, considering it's potential for development, and that the trial court's reliance on one of the experts was not supported by the evidence.  The appellate court also noted that restrictions on the tract impacted the tract's market value.  The appellate court vacated the trial court's order and remanded the case for calculation of the assessed value with consideration of the plaintiff's environmental obligations.  On further review, the state (PA) Supreme Court upheld an appraiser's opinion that the value of the tract was fair market value less five percent for environmental "stigma."  Harley-Davidson Motor Company v. Springettsbury Township, et al., No. 82 MAP 2014, 2015 Pa. LEXIS 2170 (Pa. Sup. Ct. Sept. 29, 2015).  


In 2011, the defendant (U.S. EPA) proposed a rule that would have required a confined animal feeding operation (CAFO) to release comprehensive data providing precise CAFO locations, animal types, and number of head as well as personal contact information including names addresses, phone numbers and email addresses of CAFO owners.  The Department of Homeland Security (DHS) had informed the defendant that the release of such personal and confidential information could constitute a domestic safety risk.  The DHS pointed out that such personal business information  is exempted from disclosure under FOIA enumerated exemptions No. 4 and No. 6.  In an earlier challenge to the proposed rule, a different court held that the opponents to the rule lacked standing for failure to demonstrate an actual or imminent injury - American Farm Bureau Federation, et al. v. United States Environmental Protection Agency, et al., No. 13-1751 ADM/TNL, 2015 U.S. Dist. LEXIS 9106 (D. Minn. Jan. 27, 2015).  The defendant withdrew the proposed rule in 2012, reserving the right to developing a similar rule in the future.  The plaintiffs, various activist groups, generally opposed to confinement livestock facilities and related production activities challenged the defendant's withdrawal of the rule as a violation of the Administrative Procedures Act (APA).  The court granted summary judgment for the defendant given the greater deference owed to the defendant when it withdraws a rule and maintains the status quo.  The court agreed with the defendant that the better approach was to "explore, develop and assess" existing sources of data and keep an option open to require mandatory reporting of such information in the future.  The court also determined that the withdrawal of the rule did not violate the Clean Water Act.  Environmental Integrity Project, et al. v. McCarthy, No. 13-1306 (RDM), 2015 U.S. Dist. LEXIS 131653 (D. D.C. Sept. 29, 2015).


The plaintiff owns and operates an oil refinery in Texas.  After a 2002 inspection of the facility, the Environmental Protection Agency (EPA) filed a criminal indictment against the defendant for Clean Air Act violations for failure to cover tanks with emission-control equipment, and for "taking" migratory birds in violation of the Migratory Bird Treaty Act (MBTA).  The trial court found the defendant guilty of three violations of the MBTA on the basis that liability under the MBTA could result irrespective of the defendant's intent simply based on proximate cause.  On appeal, the court reversed.  The appellate court applied the well-understood common law meaning of "take" (when not combined with "harass" or "harm") so as to preclude events that cause mere accidental or indirect harm to protected birds.  The court determined that the evidence did not show that the equalization tanks were utilized with the deliberate intent to cause bird deaths.  In so holding, the court rejected contrary holdings of the Second and Tenth Circuits on the issue.  The court also noted that an MBTA violation would not arise from bird collisions with electrical transmission lines, thus power companies would not need to seek an incidental take permit  from  the USFWS in the Fifth Circuit.  United States v. Citgo Petroleum Corp, et al., No. 14-40128, 2015 U.S. App. LEXIS 15865 (5th Cir. Sept. 4, 2015), rev'g. and remanding, 893 F. Supp. 2d 841 (S.D. Tex. 2012).


The day before the effective date of the Environmental Protection Agency’s Clean Water of the United States (WOTUS) rule (Fed. Reg. 37,054-127,), a federal judge issued a preliminary injunction to stop the EPA and the U.S. Army Corps of Engineers from enforcing it. The court determined that the plaintiffs (multiple states) were substantially likely to succeed on the merits or had at least a fair chance to succeed.  The court stated that the evidence showed that it was likely that the EPA has violated its Congressional grant of authority when it developed the rule and also failed to comply with the Administrative Procedure Act requirements.  The court noted that a broad segment of the public would benefit from the preliminary injunction because it would ensure that federal agencies do not extend their power beyond the express delegation from Congress. A balancing of the harms and analysis of the public interest revealed that the risk of harm to the States was great and the burden on the EPA was slight.  The injunction was requested by States of North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming, and the New Mexico Environment Department.  The EPA immediately took the position that the injunction applies only to those states that sought the injunction. The old rule, the agency said, will be applied in those states. The new rule, however, will be applied by the EPA and the U.S. Army Corps in the remaining states beginning effective August 28, 2015.  North Dakota, et al. v. United States Environmental Protection Agency, No. 3:15-cv-59, 2015 U.S. Dist. LEXIS 113831 (D. N.D. Aug. 27, 2015).

 


In late 2013, the Obama Administration, as requested by the wind energy industry, announced that it would allow certain wind energy companies to kill or injure bald and golden eagles for up to 30 years without penalty.  The Department of the Interior developed a rule modifying the existing 5-year "eagle-take" rule with a 30-year rule allowing wind energy companies to obtain 30-year permits to kills golden and bald eagles without prosecution by the federal government.  The court invalidated the rule, citing a lack of compliance with the National Environmental Policy Act.  The court determined that the U.S. Fish and Wildlife Service (FWS) had failed to show an adequate basis in the record for deciding not to prepare an environmental impact statement (as required by NEPA) or an environmental assessment before adopting the 30-year rule.  The court invalidated the rule and remanded to the FWS "for further consideration."  Shearwater, et al. v. Ashe, et al., No. 14CV02830LHK, 2015 U.S. Dist. LEXIS 106277 (N.D. Cal. Aug. 11, 2015).


In 2009, the EPA began developing various rules that would negatively impact U.S. coal production.  One of those rules, the Cross-State Air Pollution rule, imposed a cap-and-trade style program that expanded limitations on sulfur dioxide and nitrogen oxide emissions from coal-fired power plants in 28 "upwind" states.  EPA claimed to have authority to cap emissions that supposedly traveled across state lines.  However, in 2012, the D.C. Circuit Court of Appeals invalidated the rule on the basis that, while the Clean Air Act (CAA) grants the EPA authority to require upwind states to reduce their own significant contributions to a downwind state's non-attainment, the rule could impermissibly require upwind states to reduce emissions by more than their own significant contributions to a downwind state's non-attainment.  The court also held that the EPA failed to allow states the initial chance (as required by statute) to implement any required reductions to in-state sources by quantifying a state's obligations and establishing federal implementation plans.  Indeed, the EPA admitted that the rule would cost the private sector $2.7 billion and force numerous coal-fired power plants to shut down.  However, on further review, the U.S. Supreme Court reversed in a 6-2 decision (Alito not participating).  The Court held that the CAA did not require the states to be given a second opportunity to file a state implementation plan after the EPA has quantified a state's interstate pollution obligations.  The Court also determined that the EPA had properly developed a "cost-effective" allocation of emission reductions among upwind states.  The dissent pointed out that the statute precisely specified the responsibility of upwind states - to eliminate the amount of pollutants that it contributes to downwind problem areas rather than achieve reductions on the basis of how cost-effectively each state can decrease emissions.  However, the Court agreed with the Circuit Court that certain "as-applied" challenges to the emissions reductions that EPA imposed on upwind states were legitimate and remanded on that issue.  The dissent also pointed out that the Court's decision allows unelected bureaucrats to develop plans to implement air-quality standards before a state could have satisfied the benchmarks established in the plans on their own.  On remand, the D.C. Circuit granted several challenges, thereby invalidating the 2014 CO2 emissions budgets imposed on AL, GA, SC and TX, and the 2014 ozone-season NOx budgets for FL, MD, NJ, NY, NC, OH, PA, SC TX, VA and WV.  The court rejected other challenges to the EPA rule.  EME Homer City Generation, L.P. v. Environmental Protection Agency, et al., No. 11-1302, 2015 U.S. App. LEXIS 13039, on pet. for review from 134 S. Ct. 1584 (2014). 

 


The plaintiff operates an egg farm and, in accordance with state (NC) law, constructed a detention pond near a hen house for surface water control purposes.  The pond also collect small amounts of dust, feathers and manure.  The pond does not discharge directly into state or federal waters, but does periodically discharge accumulated rainfall and debris into a nearby canal which the defendant claimed requires a state-issued permit under the Clean Water Act (CWA).  The plaintiff unsuccessfully challenged the permit requirement administratively, and then filed the present action in federal court seeking an order that incidental discharge qualified as ag stormwater which is exempt from the CWA permit requirements at the state level.  The court held that it lacked jurisdiction to consider the matter.  The court noted that the only way it could possible hear the case was if state law implicated significant federal issues, but ultimately determined that if it took the case it would upset a "congressionally approved balance of federal and state judicial responsibilities."  The court determined that, under the CWA, no federal right of action was created to allow the challenge of state permitting decisions.  The court also declined to exercise declaratory-judgment jurisdiction noting that NC courts had a strong interest in reviewing state CWA permitting decisions and that hearing the case would create "unnecessary entanglement" between federal and state courts.  Rose Acre Farms, Inc. v. North Carolina Department of Environment and Natural Resources, et al., No. 5:14-CV-147-D, 2015 U.S. Dist. LEXIS 99628 (E.D. N.C. Jul. 30, 2015).   


The defendant, the Federal Energy Regulatory Commission (FERC), issued a certificate of public convenience and necessity to a company authorizing the company to extend a natural gas pipeline.  The plaintiff sued seeking a review of FERC's issuance of the certificate on behalf of its members who "work, live, and recreate" along a nearby river and were concerned about the exercise of eminent domain conveyed to the company under Section 7 of the Natural Gas Act (NGA) to secure rights-of-way.  The defendant claimed that the plaintiff lacked standing and the court agreed.  The court held that the plaintiff's desire to protect its members property due to the defendant's alleged non-compliance with the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA) was not within the "zone of interests that the NGA, NEPA or CWA protected.  The plaintiff did not claim that its members would suffer any environmental harm (thus, the NEPA claim failed) and the CWA claim failed because the plaintiff did not involve any allegation of pollution to navigable waters of the U.S.  The court also determined that an eminent domain claim was not a basis for a CWA claim.  Gunpowder Riverkeeper v. Federal Energy Regulatory Commission, No. 14-1062, 2015 U.S. App. LEXIS 12532 (D.C. Cir. Jul. 21, 2015). 


The plaintiff operates a chicken processing facility.  Upon receiving an anonymous complaint, the defendant inspected a nearby creek and discovered sludge that appeared "visually similar" to the plaintiff's wastewater lagoon.  Without any direct or physical evidence, the defendant assessed a $75,000 penalty against the plaintiff.  The $75,000 penalty was comprised of a $25,000 penalty for violating a state (NC) statute barring discharges into state waters that violate state water quality standards, and $50,000 in penalties for two separate violations of state water quality standards (dissolved oxygen standard and settleable solids and sludge standards).  An administrative law judge (ALJ) viewed the $50,000 in penalties as improper.  The Environmental Management Commission upheld the $25,000 penalty for the discharge violation and one $25,000 penalty for the other violations.  On further review, the trial court affirmed the ALJ's decision.  On appeal, the court affirmed.  The appellate court held that a violation of water quality standards could not occur without a discharge violation.  Thus, the plaintiff had impermissibly been penalized multiple times for the same violation.  House of Raeford Farms, Inc. v. North Carolina Department of Environment and Natural Resources, No. COA15-47, 2015 N.C. App. LEXIS 631 (N.C. Ct. App. Jul. 21, 2015). 


Under the Clean Air Act, the Environmental Protection Agency (EPA) regulates vehicle emissions.  Accordingly, the EPA developed regulations requiring vehicle manufacturers to test emissions of new vehicles using a "test fuel" that is "commercially available."  The plaintiffs, a coalition comprised largely of ethanol producers, challenged the test fuel regulation as arbitrary and capricious because their fuel, which contains 30 percent ethanol, could not be a test fuel because it is not yet commercially available.  They claimed that a fuel need not be commercially available in order to be approved as a test fuel.  The court, in short order, dismissed the plaintiffs' arguments in that the regulation was solidly rooted in the statute requiring vehicles to be tested under circumstances that reflect actual current driving conditions.  The court made no mention that fuel containing ethanol does not actually improve environmental quality as reported in the Proceedings of the National Academy of Sciences published in December of 2014 which reported that "the combined climate and air quality impacts [of corn-ethanol-fueled vehicles] are greater than those from gasoline vehicles."  Energy Future Coalition, et al. v. Environmental Protection Agency, et al., No. 14-1123, 2015 U.S. App. LEXIS 12078 (D.C. Cir. Jul. 14, 2015).


The plaintiff, a peat moss mining company, sought the approval of the Corps of Engineer (COE) to harvest a swamp (wetland) for peat moss to use in landscaping projects.  The COE issued a jurisdictional determination that the swamp was a wetland subject to the permit requirements of the Clean Water Act (CWA).  The plaintiff sought to challenge the COE determination, but the trial court, in a highly disingenuous opinion in light of the unanimous U.S. Supreme Court opinion in Sackett v. Environmental Protection Agency, 132 S. Ct. 1367 (2012), ruled for the COE, holding that the plaintiff had three options:  (1) abandon the project; (2) seek a federal permit costing over $270,000; or (3) proceed with the project and risk fines of up to $75,000 daily and/or criminal sanctions including imprisonment.  On appeal, the court unanimously reversed, strongly criticizing the trial court's opinion.  Based on Sackett, the court held that COE Jurisdictional Determinations constitute final agency actions that are immediately appealable in court.  The court noted that to hold elsewise would allow the COE to effectively kill the project without any determination of whether it's position as to jurisdiction over the wetland at issue was correct in light of Rapanos v. United States, 547 U.S. 715 (U.S. 2006).  The court noted that the COE had deliberately left vague the "definitions used to make jurisdictional determinations" so as to expand its regulatory reach.  While the COE claimed that the jurisdictional determination was merely advisory and that the plaintiff had adequate ways to contest the determination, the court determined that such alternatives were cost prohibitive and futile.  The court stated that the COE's assertion that the jurisdictional determination (and the trial court's opinion) was merely advisory ignored reality and had a powerful coercive effect.  The court held that the Fifth Circuit, which reached the opposition conclusion with respect to a COE Jurisdictional Determination in Belle Co., LLC v. United States Army Corps. of Engineers, 761 F.3d 383 (5th cir. 2014), cert. den., 83 U.S.L.W. 3291 (U.S. Mar. 23, 2015), misapplied the Supreme Court's decision in SackettHawkes Co., Inc., et al. v. United States Army Corps of Engineers, No. 13-3067, 2015 U.S. App. LEXIS 5810 (8th Cir. Apr. 10, 2015), rev'g., 963 F. Supp. 2d 868 (D. Minn. 2013).  In a later decision, the court denied a petition to rehear the case en banc and by the panel.  Hawkes Co., Inc., et al. v. United States Army Corps of Engineers, No. 13-3067, 2015 U.S. App. LEXIS 11697 (8th Cir. Jul. 7, 2015).


he defendant established Total Maximum Daily Load (TMDL) limits on nitrogen, phosphorus and sediment entering in the Chesapeake Bay and associated rivers and streams annually.  The impacted states also developed individual plans as to how they would achieve the regulatory limits along with establishing two-year milestones for achieving regulatory compliance.   The plaintiffs challenged the defendant's regulatory limits as exceeding the defendant's authority, but the trial court upheld the limits.   On appeal, the court affirmed on the basis that the limits did not eliminate state flexibility to make cleanup decisions and how to reach pollution reduction targets.  American Farm Bureau Federation, et al. v. United States Environmental Protection Agency, et al., No. 13-4079, 2015 U.S. App. LEXIS 11548 (3rd Cir. Jul. 6, 2015).

 


The plaintiffs owned a vacation property bordering a lake and received a permit to maintain a boat dock and stone steps on the public land between their property and the lake.  The lake and shoreline is managed by the defendant.  The defendant revoked the plaintiffs' permit, after conducting a hearing, for causing herbicides to be sprayed on public property and for removing brush (and mowing the shoreline) from the previously sprayed land.  The plaintiffs challenged the revocation for lack of due process.  The trial court held that the defendant had not acted arbitrarily or capriciously and that the plaintiffs' constitutional due process rights had not been violated.  The appellate court affirmed.  The court noted that the plaintiffs had no property interest in the permit to which due process rights could attach, and that the permit clearly specified the conditions that had to be satisfied to keep the permit.  McClung v. Paul, No. 14-3463, 2015 U.S. App. LEXIS 9491 (8th Cir. Jun. 8, 2015).


The landowner bought the tract at issue as part of a transaction in which the landowner purchased an entire peninsula on which the tract was located.  The landowner developed the other land into a gated community and did not treat the tract as part of the same economic unit, but later decided to develop the tract.  In order to develop the tract, the landowner needed to acquire a Clean Water Act Section 404 permit.  The permit was denied and the landowner sued for a constitutional taking.  Initially, the U.S. Court of Federal Claims  determined that a constitutional taking had occurred and that the relevant parcel against which to measure the impact of the permit denial was the tract plus a nearby lot and scattered wetlands located nearby that the landowner owned.  On appeal, the U.S. Court of Appeals for the Federal Circuit held that the tract was the relevant parcel.  On remand, the Court of Federal Claims, held that the loss of value caused by the permit denial was 99.4 percent of the tract's value, or $4,217,888 based on the difference in the tract's value before and after the permit denial.  As a result, only a nominal value remained and the entire value of the tract had essentially been taken which constituted a taking under the rationale of Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).  The court rejected the government's argument that the "before valuation" must account for the permit denial.  The court said that the government cannot lower the tract's value by arguing the possibility of the permit denial.  The court noted that such an argument was also rejected in Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994) and Florida Rock Industries, Inc. v. United States, 791 F.2d 893 (1986).  Lost Tree Village Corporation v. United States, No. 2014-5093, 2015 U.S. App. LEXIS 9018 (Fed. Cir. Jun. 1, 2015), aff'g., 115 Fed. Cl. 219 (2014) on remand from 707 F.3d 1286 (Fed. Cir. 2013).


The plaintiff raises cattle and other livestock and wanted to build a stockwatering pond on his property.  In March of 2012, the plaintiff applied to the U.S. Army Corps of Engineers (Corps) for a permit to build an earthen dam on his property across a creek.  Due to delays in the permit approval process,  the plaintiff built the dam before receiving permit approval.  The Corps concluded that the creek was a relatively permanent stream which flowed into a non-navigable watercourse at that point, but which became navigable further downstream and eventually flowed into a lake.  The court determined that the Corps' conclusion that it had jurisdiction over the creek under the Clean Water Act was not arbitrary, capricious or contrary to law under the Supreme Court's plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006).  The court noted that the evidence showed that the creek flowed throughout the year.  However, the court also noted that no fill permit was necessary if the dam was built for the purpose of constructing a stock pond (33 U.S.C. Sec. 1344(f)(1)(C)).  However, the exemption does not apply, the court noted, if building the dam would bring an area of the creek into a use to which it was not previously subject (the "recapture" provision) where the flow or circulation of the water may be impaired or the reach of the waters reduced.  Because the plaintiff pleaded the Clean Water Act exemptions as an affirmative defense, the court's holding that the plaintiff was not entitled to judgment as a matter of law about the stock-pond exemption on the administrative record was without prejudice and a deadline of June 19, 2015 was established  for a motion seeking judgment on the pleadings on the plaintiff's remaining constitutional claims.  Eoff v. Environmental Protection Agency, No. 4:13-cv-368-DPM, 2015 U.S. Dist. LEXIS 65379 (E.D. Ark. May 19, 2015).   


The plaintiffs challenged the registration by the Environmental Protection Agency (EPA) of the pesticide cyantraniliprole (CTP).  The EPA approved the registration of CTP under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)  for use on a wide variety of crops as well as for non-agricultural uses in early 2014.  The court held that it did not have jurisdiction to review the registration process because such jurisdiction was vested in the Circuit Courts under FIFRA under 7 U.S.C. Sec. 136n.  The court dismissed the case for lack of subject matter jurisdiction.  Center for Biological Diversity, et al. v. United States Environmental Protection Agency, et al., No. 14-942 (GK), 2015 U.S. Dist. LEXIS 63465 (D. D.C. May 14, 2015).


In 2012, the Environmental Protection Agency (EPA) approved California's plan for the reduction of ozone and pesticide levels in the state, particularly the San Joaquin Valley.  The state had originally agreed to a 20 percent reduction of volatile organic compound (VOC) emissions by 2005, but the EPA allowed the state to reduce that goal to a 12 percent reduction.  A consortium of environmental groups challenged the EPA's approval.  The court noted that the state had submitted paperwork to the EPA setting the goal at a 12 percent reduction level and that 20 percent was merely a goal or target.  The court also pointed out that the plaintiffs had not established any proof of a current or ongoing violation of environmental rules.  The court deferred to the EPA that CA's plan was enforceable and that compliance would occur in years involving high fumigation of crops in the San Joaquin Valley.  El Comite Para El Bienestar De Earlimart, et al. v. United States Environmental Protection Agency, No. 12-74184, 2015 U.S. App. LEXIS 7631 (9th Cir. May 8, 2015).

 


In this case, various environmental groups challenged the state of New York's general permit system which allowed smaller communities to develop stormwater-management programs and limit pollution before seeking approval from the state for the allowable discharge of runoff into rivers and streams.  The permit system allowed a general permit to be issued upon the filing of a "notice of intention" to discharge with the Department of Environmental Conservation.  The permit system involved a stormwater management plan that included 44 "mandatory best practices" which could be achieved with flexibility.  The plaintiffs claimed that such a process did not pressure the communities to reduce pollution to the "maximum extent practicable" as they claimed was required.  The court rejected the plaintiffs' argument and wouldn't engage in second-guessing the experience and expertise of the responsible state agencies, and determined it was permissible for the communities to determine for themselves the necessary pollution controls that satisfy federal standards.  In re NRDC, No. 48, 2015 N.Y. LEXIS 934 (N.Y. Ct. App. May 5, 2015).     


Various environmental groups challenged the defendant's resource management plan (RMP) on 1.3 acres of land in Southwestern Arizona.  The plaintiffs sought to reduce the amount of livestock grazing allowed by claiming that the RMP failed to account for the effects of current and future grazing and competing land uses.  However, the court upheld the RMP noting that, unlike a grazing permit, the RMP was concerned with balancing many competing land uses and that the RMP at issue property considered alternatives that reflected various priorities.  The Bureau of Land Management (BLM)m the court held, made sufficient analysis of the impacts of livestock grazing and properly used its expertise in developing the environmental impact statement.  Western Watersheds Project v. Kenna, No. 12-15110, 2015 U.S. App. LEXIS 7357 (9th Cir. May 4, 2015). 


The plaintiffs, an assortment of environmental activist groups, petitioned the Environmental Protection Agency (EPA) to "use its power" to control nitrogen and phosphorous pollution" in the Mississippi River Basis and the Northern Gulf Of Mexico.  The EPA chose not to do so, noting that federal rulemaking was not the most effective or practical means of addressing such concerns and that the EPA's policy (consistent with the Clean Water Act (CWA)) was to allow the states to develop and adopt their own standards.  The plaintiffs sued, claiming that the EPA had violated the Administrative Procedure Act and the CWA by declining to make a "necessity determination."  The EPA moved to dismiss the case on the basis that the agency had the discretion to decline to make a necessity determination that wasn't reviewable by the court.  The trial court ruled that it had jurisdiction to review the EPA's decision and ordered the EPA to make a necessity determination.  On further review, the appellate court vacated the trial court's decision.  The appellate court determined that the courts have jurisdiction to review a denial of a rulemaking petition.  The court also determined that the EPA had discretion to decide not to make a necessity determination due to the broad language in 33 U.S.C. Sec. 1313(c)(4)(B).  The court remanded the case to the trial court to decide in the first instance whether the EPA's explanation for why it declined to make a necessity determination was legally sufficient.  The court also informed the trial court that in doing so the court was to give great deference to the EPA and use a rational basis review standard.  Gulf Restoration Network, et al. v. McCarthy, No. 13-31214, 2015 U.S. App. LEXIS 5602 (5th Cir. Apr. 7, 2015).


The plaintiff, a peat moss mining company, sought the approval of the Corps of Engineer (COE) to harvest a swamp (wetland) for peat moss to use in landscaping projects.  The COE issued a jurisdictional determination that the swamp was a wetland subject to the permit requirements of the Clean Water Act (CWA).  The plaintiff sought to challenge the COE determination, but the trial court, in a highly disingenuous opinion in light of the unanimous U.S. Supreme Court opinion in Sackett v. Environmental Protection Agency, 132 S. Ct. 1367 (2012), ruled for the COE, holding that the plaintiff had three options:  (1) abandon the project; (2) seek a federal permit costing over $270,000; or (3) proceed with the project and risk fines of up to $75,000 daily and/or criminal sanctions including imprisonment.  On appeal, the court unanimously reversed, strongly criticizing the trial court's opinion.  Based on Sackett, the court held that COE Jurisdictional Determinations constitute final agency actions that are immediately appealable in court.  The court noted that to hold elsewise would allow the COE to effectively kill the project without any determination of whether it's position as to jurisdiction over the wetland at issue was correct in light of Rapanos v. United States, 547 U.S. 715 (U.S. 2006).  The court noted that the COE had deliberately left vague the "definitions used to make jurisdictional determinations" so as to expand its regulatory reach.  While the COE claimed that the jurisdictional determination was merely advisory and that the plaintiff had adequate ways to contest the determination, the court determined that such alternatives were cost prohibitive and futile.  The court stated that the COE's assertion that the jurisdictional determination (and the trial court's opinion) was merely advisory ignored reality and had a powerful coercive effect.  The court held that the Fifth Circuit, which reached the opposition conclusion with respect to a COE Jurisdictional Determination in Belle Co., LLC v. United States Army Corps. of Engineers, 761 F.3d 383 (5th cir. 2014), cert. den., 83 U.S.L.W. 3291 (U.S. Mar. 23, 2015), misapplied the Supreme Court's decision in SackettHawkes Co., Inc., et al. v. United States Army Corps of Engineers, No. 13-3067, 2015 U.S. App. LEXIS 5810 (8th Cir. Apr. 10, 2015), rev'g., 963 F. Supp. 2d 868 (D. Minn. 2013).


This case, brought by various activist groups opposed to the planting of genetically modified crops, involved a challenge to five refuges in the National Wildlife Refuge System (including one in north-central Iowa) managed by the U.S. Fish and Wildlife Service (USFWS).  The plaintiffs challenged the USFWS decision to permit the farming of GMO crops and the use of certain pesticides in the refuges.  The plaintiffs claimed that the USFWS violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA) by allowing farming in the refuges without NEPA analysis of the impacts of pesticide use via the use of neonicotinoid pesticides (which have been linked to harm to bee colonies) and the farming of GMO crops.  The plaintiffs sought to vacate the FWS decisions allowing pesticide use and GMO crop farming and enjoin the practices until the USFWS prepared an adequate NEPA analysis for the refuges.  With respect to the NEPA claims regarding GMO crop farming, the court denied the plaintiffs' motion for summary judgment with respect to the Iowa refuge, but granted it with respect to the refuge in Michigan.  With respect to the NEPA claim involving pesticides, the court granted the plaintiffs' motion for summary judgment, and ordered the defendants to file, by April 15, 2015, a notice indicating the extent to which neonicotinoid pesticides are currently used on the refuges and where they are used.  The court ordered the defendant to "devise a plan to phase out their use as soon as practicable, but no later than January 1, 2016."  Center for Food Safety, et al. v. Jewell, No. 14-360 (CKK), 2015 U.S. Dist. LEXIS 31700 (D. D.C. Mar. 16, 2015)..   


The plaintiff, a nonprofit corporation, supplies water to approximately 12,000 persons and alleged that the defendant caused solid hazardous waste to be disposed of at it's manufacturing facility that contaminated the plaintiff's water supply in violation of the Resource Conservation Recovery Act (RCRA).  The plaintiff also alleged public and private nuisance, abnormally dangerous or ultrahazardous activity, conversion and unjust enrichment  The plaintiff sought injunctive relief and an order mandating the cleanup of the defendant's facility.  The defendant motioned for summary judgment on all claims.  The court granted the defendant's motion for summary judgment on the abnormally dangerous or ultrahazardous activity claim, as well as the unjust enrichment claim.  The defendant's motion was denied on other claims.  The Little Hocking Water Association, Inc. v. E.I. DuPont de Nemours and Co., No. 2:09-CV-1081, 2015 U.S. Dist. LEXIS 29200 (S.D. Ohio Mar. 10, 2015).     


Two farm-related organizations, the American Farm Bureau Federation and the National Pork Producers' Council, sued the Environmental Protection Agency (EPA) under the Administrative Procedures Act to bar EPA's release of member information involving physical addresses and details concerning the members' operation of Confined Animal Feeding Operations (CAFOs).  Under the Clean Water Act (CWA), CAFO information involving location and certain operational details must be made public as a condition of obtaining a Natdional Pollution Discharge Elimination System (NPDES) permit.  An NPDES permit must be obtained to operate the CAFO. In 2012, the EPA received Freedom of Information Act (FOIA) requests from several environmental groups seeking CAFO information. In response, EPA released comprehensive data providing precise CAFO locations, animal type and number of head, and personal contact information, including names addresses, phone numbers and email addresses of CAFO owners.  Before the release of information, the Department of Homeland Security had informed EPA that the release of such personal and confidential information could constitute a domestic security risk.  Such personal business information is specifically exempted form disclosure under FOIA under enumerated exemptions No. 4 and No. 6.  The defendants (EPA and intervening activist groups) argued that the plaintiffs lacked standing to sue due to the plaintiffs having not suffered injury or facing the imminent threat of injury. The plaintiffs argued that they would be injured and that at least one member had already been physically invaded.  However, the court determined that the plaintiffs failed to establish standing because they failed to demonstrate an actual or imminent injury, framing the issue as one over "loss of control of their personal information."  The court then reasoned that the potential release concerned information that was already publicly available and was easily accessible via the Web.  The court noted that the one party that had suffered injury sustained it before the EPA responded to the FOIA request.  The court failed to address, however, the obvious question of why the activist groups filed a FOIA request for (what the court stated was) information that was already publicly and readily available. American Farm Bureau Federation, et al. v. U.S. Environmental Protection Agency, et al., No. 13-1751 ADM/TNL Civil No. 13-1751 ADM/TNL, 2015 U.S. Dist. LEXIS 9106 (D. Minn. Jan. 27, 2015).  


The plaintiffs, citizen activists opposed to confined animal feeding operations (CAFOs), sued the U.S. EPA, Ohio Dept. of Agriculture (ODA) and the Ohio EPA under the Clean Water Act (CWA) claiming that the ODA was improperly issuing National Pollution Discharge Elimination System (NPDES) for CAFOs without EPA approval via a memorandum of agreement, and that the Ohio EPA had transferred part of its authority to administer NPDES permits to the ODA without permission from the federal EPA by allowing the ODA to issue a manure management plan as a condition for obtaining an NPDES permit.  The transfer of authority was pursuant to a state law enacted in 2000 that transferred authority from the Ohio EPA to the ODA.  ODA then sought federal EPA approval to transfer NPDES permit authority for CAFOs to the ODA so that CAFO regulation would be centralized under the ODA.  The court previously denied the plaintiffs a preliminary injunction, and in this decision dismissed the plaintiffs' case.  The court noted that any manure management plan that is submitted to the Ohio EPA is reviewed by the Ohio EPA and can only be used as an NPDES permit application if it satisfies the CWA.  The court noted that the plaintiffs' assertions were "completely devoid of merit."  Askins, et al. v. Ohio Department of Agriculture, No. 3:14-cv-01699-DAK (W.D. Ohio Jan. 27, 2015).


The plaintiffs’ predecessor owned a tract of farmland and in 1994 sought an NRCS wetland determination for the tract because he was considering converting it to crop production.  The NRCS concluded that the tract contained approximately 38 acres of wetlands the conversion of which would make the owner ineligible for USDA farm program subsidies.  The owner did not appeal the NRCS decision, but did seek another wetland determination for the tract in 2004.  This time, the NRCS determined that the tract contained at least 28 acres of wetlands.  The NRCS notice of its decision to the owner didn’t inform the owner of his appeal rights as required by regulations.  The owner died and the tract passed to the plaintiffs.  The NRCS notified the U.S. Army Corps of Engineers (Corps) of its wetland determination.  The plaintiffs hired a private company to do wetland mapping for the tract, and the company concluded that the tract did not contain wetlands.  But, the NRCS argued that the private mapping did not meet government regulations, and the Corps determined that part of the tract had federal jurisdictional wetlands for purposes of the permit requirements of the Clean Water Act (CWA).  The plaintiffs converted the tract to crop production use and their acreage determination request triggered another NRCS investigation.  This time, NRCS determined that the tract contained “at least 13.5” acres of wetlands that had been converted.  The NRCS also determined that the plaintiffs were not eligible for a minimal effects exemption.  As a result, the plaintiffs were disqualified for farm program subsidies.  The USDA National Appeals Division (NAD) affirmed, and barred the plaintiffs from presenting evidence that no wetland existed on the tract before conversion to crop production via a regulation that provides that any appeal of a final determination is limited to a determination that the wetland was converted.  On judicial review, the trial court affirmed the NAD on the question involving the scope of judicial review and determined that it lacked jurisdiction over the minimal effects issue because the plaintiffs didn’t raise the issue during the administrative process.  On appeal, the appellate court affirmed.  The 2004 wetland determination did not displace the 1994 determination, which was not appealed and the 2004 request was not one for review of the 1994 determination.  The appellate court also determined that issue exhaustion applied to the minimal effects issue and upheld the trial court on that issue.  Bass v. Vilsack, No. 14-1017, 2014 U.S. App. LEXIS 24633 (4th Cir. Dec. 31, 2014).   


In 2009, the National Marine Fisheries Service (NMFS) issued a biological opinion which concluded that irrigation projects in the Central Valley jeopardized protected salmon and steelhead.  The federal government imposed severe water diversion constraints as a result of the biological opinion.    The trial court, in 2011, held that the biological opinion was unlawful for being arbitrary and capricious, and ordered the NMFS to reconsider its findings.  In addition, the trial court reduced the planned release of 190,000 acre-feet of water from the subject water to other rivers for purposes of protecting salmon and steelhead to 20,000 acre-feet.  On further review, the appellate court reversed, determining that the Endangered Species Act did not require the government agencies to detail how the restrictions on irrigation would help the salmon and steelhead.  San Luis & Delta-Mendota Water Authority, et al. v. Locke, No. 12-15144, 2014 U.S. App. LEXIS 24351 (9th Cir. Dec. 22, 2014).


The plaintiffs were cattle farmers, and the defendant was a neighboring landowner who sought to build a third pond on his property. The defendant initially stated that the pond was for recreational and aesthetic purposes, but later contended that it was to irrigate 3.5 acres of fruit trees that he intended to plant. The United States Army Corps of Engineers and the Environmental Protection Agency determined that the defendant was not required to obtain a permit to build the pond on his property due to the Clean Water Act’s farm pond exemption. 33 U.S.C. § 1344(f)(1)(C).  The plaintiffs filed a citizen suit contesting the agencies’ determination. The court granted the defendant’s motion for summary judgment, finding that because the defendant used the third pond for irrigation of his crops, he was entitled to a farm pond exemption and the agencies’ determination was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.  The court also found that there was no evidence to establish that the recapture exception to the exemption applied. Finally, the court found there was nothing deceitful or illegal about the defendant’s actions.   Craig v. United States Army Corps of Eng'rs, 2014 U.S. Dist. LEXIS 154388 (D. S.C. Oct. 29, 2014).


A landowner bought a 400-acre farm containing a barn and single-family residence.  The residence was uninhabitable and the barn was in disrepair.  The buildings were approximately one mile from the shoreline of the Pacific Ocean.  The landowner applied to the county for a permit to connect an existing well to the house and received an over-the-counter permit that authorized him to remove dry-rot and make deck and roof repairs.  County regulations exempted from permit requirements any repair and maintenance  activities that didn't result in any change to the approved land use.  The landowner made two additional work requests to permit applications that would allow him to replace an existing septic tank and "rehabilitate the existing residence."  The landowner began work on the structures consistent with the construction permits, but the county ordered him to stop until the county issued the necessary permits for the additional work.  The landowner died and a family trust became the owner of the property.  Two years after the initial application for the coastal development permit (CDP) from the county, the county approved the CDP but conditioned it on the trust dedicating a lateral easement for public access along the shorefront portion of the property because the house had not been habitable for several years and making it so would increase the intensity of the property's usage.  The trust did not appeal the county's determination.  But, on a later permit application, the trust requested the removal of the dedication of the lateral easement and the county agreed.  Environmental activist groups and like-minded coastal commissioners appealed to the defendant state agency and the defendant reversed the county's decision and conditioned the CDP on the granting of the lateral easement.  Upon judicial review, the court reversed the defendant's decision noting that the defendant abused its discretion and that even the defendant agreed that the exaction of the lateral easement did not comport with the "rough proportionality" test set forth in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dollan v. City of Tigard, 512 U.S. 374 (1994).  The defendant argued that it did not create the easement condition because it was established by the county and the defendant simply refused to remove it, and that the owner's failure to appeal collaterally estopped the landowner from challenging the exaction.  The court refused to allow collateral estoppel to apply because doing so would result in an unjust result and would subvert the law.  The court also noted that the landowner never benefited from the CDP because no work was done under it.  Bowman v. California Coastal Commission, 230 Cal. App. 4th 1146, 179 Cal. Rptr. 3d 299 (Cal. Ct. App. 2014).  


In 2006, the plaintiff sought to have the Environmental Protection Agency (EPA) to require pesticide labels to list 374 inert chemicals that "have been determined to be hazardous under other environmental laws and regulated as such by the EPA."  The EPA didn't respond by 2009, so the plaintiff sued for an unreasonable delay in violation of the Administrative Procedures Act.  Shortly thereafter, the EPA issued an advance notice of proposed rulemaking declaring its intent to address the issue inert ingredients, but that EPA was not committed to any particular outcome for rulemaking.  The EPA then motioned to dismiss the plaintiff's case for mootness.  The case was dismissed.  The EPA then took no action for over four years, and the plaintiff sued for unreasonable delay.  The EPA then informed the plaintiff that it was looking at different approaches to the issue and would not adopt rules requiring the listing of inert ingredients.  The EPA motioned for dismissal, but the plaintiff claimed that the issue of unreasonable delay meant that the case could not be dismissed for mootness.  The court dismissed the case, noting that the EPA never committed to any advance notice of proposed rulemaking.  Thus, all action on the plaintiff's complaint was terminated.  Center for Environmental Health, et al. v. McCarthy, No. 14-cv-01013-WHO, 2014 U.S. Dist. LEXIS 130459 (N.D. Cal. Sept. 15, 2014). 


The plaintiff, a minor, sued the state of Alaska violations of the state's alleged duty to protect the atmosphere under the "public trust" doctrine.  While the court held that the plaintiff had standing, the court, in affirming the lower court, dismissed the plaintiff's claim that asked the court to establish specific standards for carbon dioxide emissions and implement reductions to meet those standards.  Those, claims, the court noted, involved political questions fit for the legislative functions of elected representatives and were not proper claims for the court to consider.  Kanuk v. Alaska, No. S-14776, 2014 Alas. LEXIS 192 (Alas. Sup. Ct. Sept. 12, 2014).       


Plaintiff 1 owns property in a Louisiana parish. Plaintiff 2 has an option to purchase that property in the event that it can be used as a solid-waste landfill. In February 2012, the United States Army Corps of Engineers (COE) issued a jurisdictional determination (JD) stating that the property contains wetlands that are subject to regulation under the Clean Water Act. The plaintiffs sued, alleging that the JD is unlawful and should be set aside. The district court dismissed the suit for lack of subject-matter jurisdiction, concluding that the JD is not "final agency action" and therefore is not reviewable under the Administrative Procedure Act (APA). On appeal, the Fifth Circuit affirmed, finding that the JD did not oblige the plaintiffs to do or refrain from doing anything to the property. The court did find that the JD marked the consummation of the Corps' decision-making process as to the question of jurisdiction. However, because no actual legal consequences would flow from the JD, which merely informed the plaintiffs that the property was subject to regulation, it did not constitute reviewable final agency action under the APA. Belle Co., L.L.C. v. United States Army Corps of Engineers, No. 13-30262, 2014 U.S. App. LEXIS 14544 (5th Cir. Jul. 30, 2014).


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