Justia U.S. 2nd Circuit Court of Appeals Opinion Summaries

Articles Posted in Environmental Law
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The City filed suit against five multinational oil companies under New York tort law seeking to recover damages for the harms caused by global warming. In this case, the City asserts that its taxpayers should not have to shoulder the burden of financing the City's preparations to mitigate the effects of global warming. Rather, the City suggests that a group of large fossil fuel producers are primarily responsible for global warming and should bear the brunt of these costs.The Second Circuit held that municipalities may not utilize state tort law to hold multinational oil companies liable for the damages caused by global greenhouse gas emissions. The court explained that global warming is a uniquely international concern that touches upon issues of federalism and foreign policy. Consequently, it calls for the application of federal common law, not state law. The court also held that the Clean Air Act grants the Environmental Protection Agency – not federal courts – the authority to regulate domestic greenhouse gas emissions. Therefore, federal common law actions concerning such emissions are displaced. Finally, the court held that while the Clean Air Act has nothing to say about regulating foreign emissions, judicial caution and foreign policy concerns counsel against permitting such claims to proceed under federal common law absent congressional direction. Because no such permission exists, the court concluded that each of the City's claims is barred and the complaint must be dismissed. View "City of New York v. Chevron Corp." on Justia Law

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The Second Circuit denied a petition for review of the Commission's orders determining that the DEC had waived its authority under Section 401 of the Clean Water Act to issue or deny a water quality certification for a natural gas pipeline project sponsored by National Fuel. The court concluded that Section 401's one-year time limit may not be extended by the type of agreement between a certifying agency and an applicant used here. In this case, the Commission reasonably concluded that the Natural Gas Act's rehearing provision did not bar National Fuel from seeking a waiver determination outside of the 30-day window to file a rehearing request, and that FERC acted within its discretion in treating National Fuel's December 2017 filing as a timely motion for a waiver determination. Therefore, the Commission properly concluded that the DEC waived its certification authority. View "New York State Department of Environmental Conservation v. Federal Energy Regulatory Commission" on Justia Law

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MPM appealed the district court's grant of partial summary judgment dismissing its claims for recovery of "remedial action" costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as barred by the statute of limitations in 42 U.S.C. 9613(g)(2). UCC cross-appealed the district court's holding after a bench trial that UCC is liable to MPM for 95% of the cost of future "removal action."The Second Circuit held that the district court's conclusion that MPM's claims for recovery of remedial action costs were time-barred relied on an incorrect interpretation of the court's decision in New York State Electric and Gas Corp. v. FirstEnergy Corp., 766 F.3d 212 (2d Cir. 2014). Although the court agreed with the district court that UCC's corrective actions undertaken in the 1990s were remediation, the court did not understand NYSEG to mean that, for purposes of determining the timeliness of a cost recovery action, all remediation activity at a site regardless of circumstances is deemed to be part of a single remediation, so that the six year limitations period necessarily begins to run at the start of the first remedial activity. The court also held that the district court did not err in adjudicating the allocation of future removal action costs, or in allocating 95% against UCC. View "MPM Silicones, LLC v. Union Carbide Corp." on Justia Law

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The NRDC and the State of Vermont seek review of certain provisions of a rule promulgated by the EPA, pursuant to the Toxic Substances Control Act, that requires manufacturers to report information about their use of mercury. Specifically, petitioners argue that three exemptions for categories of manufacturers and importers are unlawful.The Second Circuit denied review of the exemption for manufacturers of assembled products with mercury-added components at 40 C.F.R. 713.7(b)(3) and the partial exemption for high-volume manufacturers at 40 C.F.R. 713.9(a). The court held that these exemptions are reasonable in light of Congress's directive to the EPA to avoid requiring duplicative or unnecessary reporting. However, the court granted review of and vacated the exemption for importers of assembled products with mercury-added components at 40 C.F.R. 713.7(b)(2), finding that the EPA failed to provide a reasoned explanation for this exemption. View "Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency" on Justia Law

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The Second Circuit reversed the district court's holding that the EPA properly invoked the deliberative process privilege and Exemption 5 of the Freedom of Information Act (FOIA) to withhold a portion of its OMEGA computer program when responding to plaintiffs' FOIA request. The OMEGA model is an EPA computer program used to forecast the likely responses of automakers to proposed EPA greenhouse gas emissions standards. In this case, the record shows that to the extent the full OMEGA model reflects any subjective agency views, it does so in the input files, not the core model. Therefore, the core model is not deliberative and thus does not fall within the scope of the privilege and FOIA Exemption 5. View "Natural Resources Defense Council v. EPA" on Justia Law

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FOA filed suit against NPS, alleging that the agency violated the National Environmental Policy Act in approving the Whitetailed Deer Management Plan for the Fire Island National Seashore.The Second Circuit affirmed the district court's denial of FOA's motion for summary judgment and grant of NPS's cross-motion for summary judgment, holding that NPS's decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In this case, NPS was not required to obtain the information about deer movement because it was not essential to a reasoned choice among alternatives; NPS took a hard look at the environmental consequences of the Plan; NPS has presented a rational basis for its decision to employ a Seashore-wide target deer density; and NPS considered all reasonable alternatives. View "Friends of Animals v. Romero" on Justia Law

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The Second Circuit vacated the district court's grant of defendants' motion to dismiss an action brought by the Sierra Club under the Clean Water Act, seeking declaratory and injunctive relief. Sierra Club alleged that Construx was engaged in "industrial activity" within the meaning of the Act without a permit.The court held that Construx's business activity, which involved recycling debris and waste and subsequently wholesaling aggregate materials it has crushed from that debris and waste, was "industrial activity" within the meaning of the Act. Therefore, Sierra Club's allegations were sufficient to demonstrate, at the pleading stage, that Construx was engaged in "industrial activity," notwithstanding that part of its business could also be classified as activity not subject to the Act. Accordingly, the court remanded for further proceedings. View "Sierra Club v. Con-Strux, LLC" on Justia Law

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The Second Circuit denied a petition for review of EPA's final rule promulgated under section 316(b) of the Clean Water Act, establishing requirements for cooling water intake structures at existing facilities, as well as a biological opinion jointly issued by the Services at the close of formal Endangered Species Act consultation on the rule. The court held that the final rule and the biological opinion were based on reasonable interpretations of the applicable statutes and sufficiently supported the factual record. The court also held that EPA gave adequate notice of its rulemaking. The court considered petitioners' remaining arguments and held that they were without merit. View "Cooling Water Intake Structure Coal. v. EPA" on Justia Law

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The Second Circuit affirmed the district court's grant of a motion for partial summary judgment dismissing plaintiff's claims of nuisance, trespass, and negligence arising from water contamination as barred by the statute of limitations. The court held that the statute of limitations began to run when the water district learned of the potential need to remediate, or at least when a reasonable water provider would have taken action to protect the water. In this case, the court agreed with the district court that the record established as a matter of law that the water district had suffered injury and was aware of that injury before November 2010. Therefore, the water district's claims for damages arising from contamination of Plant 4 was barred by the statute of limitations. Furthermore, the water district's claims regarding radium were also time-barred where there was a seven year gap between the discovery of the injury and the discovery of the source of the injury. View "Bethpage Water District v. Northrop Grumman Corp." on Justia Law

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Constitution petitioned for review of the Department's decision denying its application for certification pursuant to Section 401 of the Federal Water Pollution Control Act, more commonly known as the Clean Water Act (CWA), 33 U.S.C. 1341. Constitution sought certification that its proposed interstate natural gas pipeline would comply with New York State water quality standards. NYSDEC denied the application on the ground that Constitution had not provided sufficient information. The Second Circuit held that, to the extent Constitution challenged the timeliness of the NYSDEC decision, the petition was dismissed for lack of jurisdiction. On the merits, the court held that NYSDEC's actions were within its statutory authority and that its decision was not arbitrary or capricious. The court deferred to NYSDEC's expertise as to the significance of the information requested from Constitution, given the record evidence supporting the relevance of that information to NYSDEC's certification determination. Accordingly, the court denied the petition for review. View "Constitution Pipeline Co. v. New York Sate Department of Environmental Conservation" on Justia Law