Posts in Environmental Law Cases.

Can you appeal a U.S. Army Corps of Engineers' jurisdictional determination ("JD") that a water feature constitutes waters of the United States? The Administrative Procedures Act allows such an appeal if it is determined that no further action is available in court. However, the Corps has historically taken the position that its jurisdictional determination is not appealable and it is only when a permit is denied that one can challenge the jurisdictional determination. On December 11, 2015, the Supreme Court granted certiorari in United States Army Corps of Engineers v. Hawkes ...

The Environmental Protection Agency ("EPA") and U.S. Army Corps of Engineers ("Corps") published their Final Rule defining "waters of the United States" on June 29, 2015. The rule becomes effective on August 28, 2015. The rule was pre-published on May 27, 2015 by EPA and the Corps (the "Agencies"), and it has already received unprecedented attention. The Clean Water Act's jurisdiction relates to "navigable waters" which is defined by Congress only as "Waters of the United States or the territorial seas." This vague definition has created substantial confusion to ...
On Monday, the U.S. Supreme Court halted further implementation of a U.S. EPA's regulation limiting mercury and other hazardous air toxic emissions from coal- and oil-fired electric power plants. In a 5-4 decision, the majority held that EPA failed to take costs into account when deciding to regulate power plants under this rule, thereby imposing substantial and costly emissions limits and control requirements on them. However, the Court did not strike down the rule, instead remanding the case for further proceedings. The Opinion can be viewed here. Members of Congress and ...
At the end of its recent session, the Georgia General Assembly passed HB 464 by unanimous votes to cap the land conservation tax credit at $30 million for 2016 and then eliminate it altogether at the end of 2016. HB 464 also repeals the tax credits for water conservation facilities and ending groundwater usage, effective at the end of 2016. The original bill, introduced by Representative Bruce Williamson (R-115; Monroe), did not address the land conservation tax credit. Section 1 of the original bill repeals the tax credit for water conservation facilities; Section 2 ends the tax credit ...
December 19, 2014 marked the deadline for the Environmental Protection Agency (EPA) to announce its final decision regarding a new regulatory scheme for coal ash disposal (Coal Combustion Residuals or CCR). The new regulations are to focus on the disposal of coal ash. The pressure for new regulations began mounting after the rupture of a Tennessee power plant in 2008 which sent over 1 billion gallons of coal ash into nearby Tennessee rivers. Subsequently, on February 2, 2014, a Duke Energy plant released approximately 39,000 tons of coal ash into the Dan River in North Carolina. During ...

On May 22, 2014 the Florida Supreme Court in South Florida Water Management District v RLI Live Oak, LLC, No. SC12-2336 ruled that in circumstances where a Florida Statute authorizes a state governmental agency like the Water Management District to recover a civil penalty in a judicial forum, then the agency must only prove the violation by a preponderance of the evidence. In this case the applicable statue did not specify the agencies burden to prove the violation. The Supreme Court distinguished its previous ruling in Department of Banking & Finance V Osborne Stern & Co. 670 So. 2d 932 ...

In March, EPA published a new Final Rule that revised a 2009 Final Rule addressing stormwater discharges from its Construction and Development (C&D) point source category. The March revision withdrew the numeric turbidity effluent limitation and monitoring requirement and made certain other changes and clarifications. (Federal Register: March 6, 2014 Federal Register) The revised rule results from litigation filed by a number of entities, Wisconsin Builders Association, et al. v. EPA, Case Nos. 09-4113, 10-1247, and 10-1876 (7th Cir.), and specifically from a settlement ...

Federal Court of Appeals strikes down a portion of the EPA's rule limiting a Court's authority for imposing civil fines for equipment failures. While upholding portions of EPA's new rules for air toxic emissions for cement kilns, in a ruling dated April 16th the District of Columbia Court of Appeals struck down the provision that limited the Federal Courts from imposing civil penalties involving citizen suits for violations of the Clean Air Act for unavoidable equipment malfunctions. The Federal Courts previous 2008 decision finding unlawful EPA's earlier attempt to "exempt ...
Property owners in the town of Roxana, Illinois, a small village on the Mississippi River across from St. Louis, filed suit against Shell Oil Company and ConocoPhillips. The property owners alleged that a refinery owned by Shell and later ConocoPhillips leaked benzene and other petroleum-based contaminants into the groundwater under their homes. The property owners sought the lost value in their homes as a result of the groundwater contamination. The Illinois District Court Judge certified the property owners as a class under Rule 23, Federal Rules of Civil Procedure. On appeal ...

A significant issue in the recent federal government shut down was the fundamental question over the scope of government authority and its role in a wide range of activities. In short, should there be any government involvement with respect to particular issues? While the shut down focused most directly on the federal healthcare program, similar questions have been raised both about Congressional enactments over things such as environmental protection, and the scope of those enactments as reflected by regulation. These policy and practical issues are playing out now with respect ...

The recent Supreme Court case Koontz vs. St. Johns River has generated a lot of commentary and debate in the legal community and speculation concerning the ramifications of the case on various land use permitting scenarios. Oversimplifying the facts and legal theories, the Supreme Court extended previous rulings to a situation whereby the governmental entity denied a request/permit for the failure of the applicant to agree to "suggested" alternative concessions proposed by the local government. The alternative concessions included mitigation measures, conservation ...

On March 15, 2013, BP asked United States District Court Judge Carl Barbier, Jr. to block the Deepwater Horizon claims administrator from awarding "business economic losses" that BP contends are "fictitious" claims for damages. BP maintains that the claims administrator, Louisiana lawyer Patrick Juneau, was misinterpreting the wording of the settlement agreement regarding larger claimants and was allowing payments "for non-existent, artificially calculated losses." BP takes issue with the timing used by companies to determine when losses occurred. In addition to ...

Previously, we referenced an article in Bloomberg BNA reporting on an interview with an EPA representative who indicated that the Agency could not provide a definitive timeline for promulgating final regulations on the management of coal ash generated by power plants. EPA has now more formally confirmed this uncertainty. Recently, in announcing projected publication dates for a wide range of rules in various stages of development, EPA effectively acknowledged that there is no target date for the final rule. This is also reflected on EPA's web page which tracks the history of the ...

The United States Supreme Court, in a unanimous ruling, has acted to limit a potential liability of municipalities and other stormwater permit holders with respect to the condition of waters entering and passing through their jurisdictions. In a short opinion issued on January 8, the Court ruled in LOS ANGELES COUNTY FLOOD CONTROL DISTRICT v. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL., that the Flood District could not be held responsible under its municipal separate storm sewer system (stormwater) permit for the polluted condition of waters passing through its ...

On January 8, 2013, the U.S. Supreme Court, in a unanimous decision reversing the Ninth Circuit Court of appeals, held that "the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants under the CWA. Because the decision below cannot be squared with that holding, the Court of Appeals judgment must be reversed." LA County Flood Control District v. NRDC. Pursuant to its MS4 permit, the Flood Control District had been monitoring instream flows in improved sections of the Los Angeles and ...

In answering a certified question from a federal district court, the Alabama Supreme Court concluded that action by the Environmental Protection Agency ("EPA") naming an insured as a Potentially Responsible Party ("PRP") satisfied the definition of "suit" under the insured's Comprehensive General Liability ("CGL") policy. From shortly after World War II through the early 1980's, Alabama Gas Corporation ("Alagasco") maintained CGL policies with Travelers Casualty and Surety ("Travelers"). Alagasco had owned and operated a manufactured gas plant in Huntsville ...

On August 13, the Fifth Circuit Court of Appeals issued its decision in State of Texas v. EPA, No. 10-60614 (5th Cir. Aug. 13, 2012), affirming Texas's State Implementation Plan (SIP) allowing for "flexible permits." Under Texas's Flexible Permit Program, a facility may make modifications without agency review so long as aggregate emissions do not exceed an emissions cap for the facility. The case could have broader implications across the country, if other courts adopt the Fifth Circuit's reasoning to allow increased flexibility in state air permitting programs. In this case ...

On August 7, the White House announced an expedited approval schedule for seven solar and wind projects on federal and tribal lands in Arizona, California, Nevada and Wyoming totaling 5,000 megawatts (MW) of energy-producing capacity, an amount sufficient to power roughly 1.5 million homes. Three of the proposals would be first to come on line. The Quartzsite, McCoy and Desert Harvest solar energy facilities represent a combined 1,000 MW of capacity, and are on schedule for approval this year. Another project announced is the 3,000 MW Chokecherry and Sierra Madre wind energy ...

On August 6, 2012, Gibson Guitar Corp. entered into a criminal enforcement agreement with the United States, resolving a criminal investigation into allegations that the company violated the Lacey Act by illegally purchasing and importing ebony wood from Madagascar and rosewood and ebony from India. The Lacey Act prohibits the importation into the United States of plants and plant products that have been harvested and exported in violation of the laws of another country. The agreement requires Gibson to pay a penalty amount of $300,000 and provides for a community service payment ...

On July 12, EPA issued its Final Step 3 Tailoring Rule, announcing that EPA has decided not to lower the greenhouse gas (GHG) permitting levels and therefore will not be including additional, smaller sources in the PSD/Title V permitting programs at this time. 77 Fed. Reg. 41,300 (2012). For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

On June 26, the D.C. Circuit Court of Appeals rejected industry petitions challenging the Environmental Protection Agency's (EPA) rules limiting greenhouse gas emissions, finding that none of the challengers had standing to bring suit. The petitions targeted EPA's "tailoring" rule, which requires major polluters to obtain permits for their greenhouse gas emissions; the "tailpipe" rule, which sets standards for greenhouse gas emissions from cars and light-duty trucks beginning in the 2012 model year; and the "timing" rule, which limits greenhouse gas emissions from ...

On June 21, the U.S. Supreme Court issued its opinion in Southern Union Co. v. United States, 132 S. Ct. 2344 (2012). The 6-3 decision overturned an $18 million criminal penalty for the illegal storage of mercury on the grounds that facts used to increase the amount of the monetary penalty were not proven to a jury beyond a reasonable doubt. Southern Union argued that imposing any penalty greater than the one-day RCRA maximum criminal fine of $50,000 would be unconstitutional under Apprendi v. New Jersey, 530 U. S. 466 (2000). Apprendi holds that the jury-trial guarantee of the Sixth ...

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