Articles Posted in Environmental Law

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This appeal arose out of a private enforcement action under Section 505 of the Clean Water Act (CWA), 33 U.S.C. 1365. Defendant-Appellant Ozark Materials River Rock, LLC, appealed a district court’s order approving Plaintiff-Appellee David Benham’s proposed restoration plan of unlawfully filled wetlands in Saline Creek. Ozark was a sand and gravel mining company that operated on property adjacent to Saline Creek in Oklahoma. Benham recreates in Saline Creek and claimed Ozark’s operations degraded his ability to do so. In March 2011, Benham served Ozark with a notice letter pursuant to Section 505, informing the company that it was violating Section 404 of the CWA, 33 U.S.C. 1344. Section 404 required a permit from the Army Corps of Engineers to discharge dredge or fill material into navigable waters if the activity disturbed more than one-half acre of wetland, and Ozark did not have a Section 404 permit. The Army Corps of Engineers had inspected Ozark’s operations in 2010 (again in 2012 and 2013) by driving through the property, but it found no CWA violations. Nevertheless, after receiving Benham’s notice, Ozark hired an environmental consulting firm to perform a Section 404 impact analysis of Ozark’s Saline Creek operations. By June 1, 2011, Ozark had not addressed the CWA violations that Benham alleged in his notice, so he filed the underlying citizen suit, as authorized by Section 505. The district court held a bench trial and found that Ozark’s construction of a roadway in Saline Creek and the filling of its surrounding wetlands without a permit constitute a continuing violation of the CWA. The district court imposed a civil penalty of $35,000 and ordered briefing on a restoration plan for the unlawfully filled wetlands. On June 1, 2017, the district court issued an order adopting (substantially all of) Benham’s proposed restoration plan; one element of the plan created a conservation easement for the restoration site. Ozark raised several issues on appeal challenging the district court’s order and underlying findings of fact and conclusions of law. But finding no reversible error, the Tenth Circuit affirmed the district court. View "Benham v. Ozark Materials River Rock" on Justia Law

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Plaintiff-Appellee Western Energy Alliance (“WEA”) filed this lawsuit against two Defendants: the Secretary of the United States Department of the Interior, and the Bureau of Land Management (the “BLM”). WEA alleged that the BLM violated the Mineral Leasing Act, 30 U.S.C. secs. 181-287 (the “MLA”), by holding too few oil and gas lease sales. Several environmental advocacy groups moved to intervene in the suit: The Wilderness Society, Wyoming Outdoor Council, Southern Utah Wilderness Society, San Juan Citizens Alliance, Great Old Broads For Wilderness, Sierra Club, WildEarth Guardians, Center For Biological Diversity, and Earthworks (collectively, the “conservation groups”). The district court denied the motion to intervene. The court concluded that the conservation groups had failed to show that the pending litigation has the potential to harm their environmental interests, or that the presently named parties could not adequately represent their interests. The conservation groups filed this interlocutory appeal over the denial of their motion to intervene. After review, the Tenth Circuit concluded the conservation groups could intervene in the lawsuit as a matter of right, and reversed the district court’s previous denial. View "Western Energy Alliance v. Zinke" on Justia Law

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In cases consolidated for review, the issue presented for the Tenth Circuit centered on whether the Bureau of Land Management (BLM) acted beyond its statutory authority when it promulgated a regulation, 43 C.F.R. sec. 3162.3-3 (2015), governing hydraulic fracturing (fracking) on lands owned or held in trust by the United States. The district court invalidated this regulation as exceeding the BLM’s statutory authority. While these appeals were pending, a new President of the United States was elected, and shortly thereafter, at the President’s direction, the BLM began the process of rescinding the Fracking Regulation. Given these changed and changing circumstances, the Tenth Circuit concluded these appeals were unripe for review. As a result, the Court dismissed these appeals and remanded with directions to vacate the district court’s opinion and dismiss the action without prejudice. View "Wyoming v. Zinke" on Justia Law

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This case presented a question of whether a large-scale excavation project constituted “mining” under the pertinent federal regulations that address mineral development on Indian land. When an entity engages in “mining” of minerals owned by the Osage Nation, a federally approved lease must be obtained from the tribe. The Osage Mineral Council (OMC), acting on behalf of the Osage Nation, appealed the award of summary judgment to Defendant Osage Wind, LLC (Osage Wind), arguing that Osage Wind engaged in “mining” without procuring a federally approved mineral lease. The Bureau of Indian Affairs (BIA) has defined “mining” as the “science, technique, and business of mineral development[.]” The Tenth Circuit held the term “mineral development” had a broad meaning, including commercial mineral extractions and offsite relocations, but also encompass action upon the extracted minerals for the purpose of exploiting the minerals themselves on site. The Court held Osage Wind’s extraction, sorting, crushing, and use of minerals as part of its excavation work constituted “mineral development,” thereby requiring a federally approved lease which Osage Wind failed to obtain. Accordingly, the Court reversed the award of summary judgment and remanded for further proceedings. View "United States v. Osage Wind" on Justia Law

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Plaintiffs-Appellants WildEarth Guardians and Sierra Club challenged the Bureau of Land Management’s (BLM) decision to approve four coal leases in Wyoming’s Powder River Basin. Plaintiffs brought an Administrative Procedure Act (APA) claim arguing that the BLM failed to comply with the National Environmental Policy Act (NEPA) when it concluded that issuing the leases would not result in higher national carbon dioxide emissions than would declining to issue them. The district court upheld the leases. The Tenth Circuit held the BLM’s Environmental Impact Studies and Records Of Decisions were arbitrary and capricious because they omitted data pertinent to its choice with respect to issuing the leases, and thereby informing the public of its rationale. The Tenth Circuit remanded with instructions to the BLM to revise its Environmental Impact Statements (EISs) and Records of Decision (RODs). The Court did not vacate the resulting leases. View "WildEarth Guardians v. Bureau of Land Management" on Justia Law

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In an amendment to the Clean Air Act (CAA), Congress directed the EPA to operate a Renewable Fuel Standards Program (the RFS Program) to increase oil refineries’ use of renewable fuels. But for small refineries that would suffer a “disproportionate economic hardship” in complying with the RFS Program, the statute required the EPA to grant exemptions on a case-by-case basis. Petitioner Sinclair Wyoming Refining Company owned and operated two refineries in Wyoming: one in Sinclair, and another in Casper. Both fell within the RFS Program’s definition of “small refinery” and were exempt from the RFS requirements until 2011. Those exemptions were extended until 2013 after the Department of Energy found Sinclair’s Wyoming refineries to be among the 13 of 59 small refineries that would continue to face “disproportionate economic hardship” if required to comply with the RFS Program. Sinclair then petitioned the EPA to extend their small-refinery exemptions. The EPA denied Sinclair’s petitions in two separate decisions, finding that both refineries appeared to be profitable enough to pay the cost of the RFS Program. Sinclair filed a timely petition for review with the Tenth Circuit court, which concluded the EPA exceeded its statutory authority under the CAA in interpreting the hardship exemption to require a threat to a refinery’s survival as an ongoing operation. Because the Court found the EPA exceeded its statutory authority, it vacated the EPA’s decisions and remanded to the EPA for further proceedings. View "Sinclair Wyoming Refining v. EPA" on Justia Law

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Under the federal environmental laws, the owner of property contaminated with hazardous substances or a person who arranges for the disposal of hazardous substances may be strictly liable for subsequent clean-up costs. The United States owned national forest lands in New Mexico that were mined over several generations by Chevron Mining Inc. The question presented for the Tenth Circuit’s review was whether the United States is a “potentially responsible party” (PRP) for the environmental contamination located on that land. The Tenth Circuit concluded that under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the United States is an “owner,” and, therefore, a PRP, because it was strictly liable for its equitable portion of the costs necessary to remediate the contamination arising from mining activity on federal land. The Court also concluded the United States cannot be held liable as an “arranger” of hazardous substance disposal because it did not own or possess the substances in question. The Court reversed the district court in part and affirmed in part, remanding for further proceedings to determine the United States’ equitable share, if any, of the clean-up costs. View "Chevron Mining v. United States" on Justia Law

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Consolidated appeals arose out of the district court’s grant of a preliminary injunction to the New Mexico Department of Game and Fish. The injunction followed the release, without a state permit, of two Mexican gray wolf pups on federal land located in New Mexico by the United States Fish and Wildlife Service (“FWS”). The district court’s order enjoined the Department of the Interior, FWS, and certain individuals in their official capacities from importing or releasing: (1) any Mexican gray wolves into the State without first obtaining the requisite state permits; and (2) any Mexican gray wolf offspring into the State in violation of prior state permits. Interior, FWS, Ryan Zinke, in his official capacity as Secretary of the Interior, Jim Kurth, in his capacity as Acting Director of FWS, Dr. Benjamin Tuggle, in his capacity as Southwest Regional Director for FWS, and intervening defendants Defenders of Wildlife, Center for Biological Diversity, WildEarth Guardians, and New Mexico Wilderness Alliance, separately filed timely appeals contending the district court abused its discretion in granting the Department a preliminary injunction. After review, the Tenth Circuit determined the Department failed to present sufficient evidence to support a finding that it was likely to suffer irreparable harm absent a preliminary injunction. As a result, the district court abused its discretion in granting the Department’s request for injunctive relief. The Tenth Circuit therefore reversed and vacated the district court’s order enjoining Federal Appellants from importing and releasing: (1) any Mexican gray wolves into the State without first obtaining the requisite state permits; and (2) any Mexican gray wolf offspring into the State in violation of prior state permits. The case was remanded back to the district court for further proceedings. View "NM Dept. of Game & Fish v. Dept. of Interior" on Justia Law

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People for the Ethical Treatment of Property Owners (“PETPO”) challenged a regulation promulgated by the United States Fish and Wildlife Service (“FWS”) pursuant to the Endangered Species Act (“ESA”). The challenged regulation prohibited the “take” of the Utah prairie dog, a purely intrastate species, on nonfederal land. The ESA defined “take” as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” The district court granted summary judgment for PETPO on the ground that neither the Commerce Clause nor the Necessary and Proper Clause of the Constitution authorized Congress to regulate take of the Utah prairie dog on nonfederal land. FWS and intervenor-defendant Friends of Animals (“FoA”) appealed the grant of summary judgment, arguing that the challenged regulation was authorized by both the Commerce Clause and the Necessary and Proper Clause, and that PETPO lacked standing. After its review, the Tenth Circuit held that the district court correctly concluded that PETPO had standing, but erred in concluding that Congress lacked authority under the Commerce Clause to regulate (and authorize the Service to regulate) the take of the Utah prairie dog. View "People for Ethical Treatment v. U.S. Fish & Wildlife" on Justia Law

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Plaintiff-Appellant Asarco, LLC appeals the entry of summary judgment against it in its contribution action against Noranda Mining, Inc., under Section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). The district court held that Asarco was judicially estopped from pursuing its claim because of representations it made to a bankruptcy court concerning its settlement agreement with the EPA for the site in question. After review, the Tenth Circuit reversed, finding that the district court abused its discretion in applying judicial estoppel: "The overall context of the CERCLA settlement approved by the bankruptcy court makes it apparent that Asarco's positions are not clearly inconsistent, that to allow Asarco to pursue its claim would not create the perception that a court was misled, and that Asarco would not necessarily gain an unfair advantage by being allowed to pursue its claim now." View "Asarco v. Noranda Mining" on Justia Law