Articles Posted in Environmental Law

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The Water District appealed from the district court's judgment in a consolidated multidistrict litigation granting summary judgment to BP and Shell on the ground that the Water District's suit was barred by res judicata arising from 2002 and 2005 settlements. Claims against BP and Shell for MTBE contamination had been brought by the Orange County District Attorney (OCDA) in 1999 and were settled in 2002 and 2005 respectively. The Second Circuit vacated and remanded the Water District's claims against BP and Shell, holding that the Water District and OCDA were not in privity. View "In re Methyl Tertiary Butyl Ether (MTBA) Products Liability Litigation" on Justia Law

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Several environmentalist organizations and state, provincial, and tribal governments filed suit challenging the EPA's Water Transfers Rule. The Rule formalized the EPA's stance to take a hands‐off approach to water transfers, choosing not to subject them to the requirements of the National Pollutant Discharge Elimination System (NPDES) permitting program. The district court ultimately concluded that the Rule represented an unreasonable interpretation of the Clean Water Act, 33 U.S.C. 1251, and was therefore invalid under the deferential two‐step framework for judicial review established in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. The federal government and intervenors appealed. At step one of the Chevron analysis, the court agreed with the district court that the Clean Water Act does not speak directly to the precise question of whether NPDES permits are required for water transfers, and that it is therefore necessary to proceed to Chevronʹs second step. At step two, the court concluded that the Rule's interpretation of the Clean Water Act is reasonable. The court explained that the EPAʹs promulgation of the Rule is precisely the sort of policy-making decision that the Supreme Court designed the Chevron framework to insulate from judicial second‐ (or third‐) guessing. The court stated that the Rule's interpretation of the Act is supported by valid considerations where the Act does not require that water quality be improved whatever the cost or means, and the Rule preserves state authority over many aspects of water regulation, gives regulator flexibility to balance the need to improve water quality with the potentially high costs of compliance with an NPDES permitting program, and allows for several alternative means for regulating water transfers. Accordingly, the court reversed the judgment. View "Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA (Catskill III)" on Justia Law

Posted in: Environmental Law

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FOA filed suit challenging the FWS's issuance of a “depredation permit” to the Port Authority, which authorizes the emergency “take” of migratory birds that threaten to interfere with aircraft at JFK airport. On appeal, FOA challenged the district court's grant of summary judgment in favor of defendants. On de novo review, the court agreed with FWS that its regulations unambiguously authorize the issuance of such a permit. Because the court held that FWS did not run afoul of 50 C.F.R. 21.41 in issuing to the Port Authority the 2014 depredation permit and affirmed the judgment. View "Friends of Animals v. Clay" on Justia Law

Posted in: Environmental Law

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Petitioners seek review of a Vessel General Permit (VGP) issued by EPA to regulate the discharge of ballast water from ships under section 402(a) of the Clean Water Act (CWA), 33 U.S.C. 1342(a). The court concluded that EPA acted arbitrarily and capriciously in issuing parts of the 2013 VGP. Therefore, the court granted the petition for review with respect to (1) EPAʹs decision to set the technology‐based effluent limits (TBELs) at the IMO Standard, (2) EPAʹs failure to consider onshore treatment for ballast water discharge, (3) EPAʹs decision to exempt pre‐2009 Lakers from the TBELS in the 2013 VGP permit, (4) EPAʹs narrative standard for water quality‐based effluent limits (WQBELs), and (5) the monitoring and reporting requirements established by EPA for WQBELs. The court remanded for further proceedings in these respects. The court denied the petition for review with respect to TBELs for viruses and protists and the monitoring and reporting requirements established by EPA for TBELs. View "NRDC v. EPA" on Justia Law

Posted in: Environmental Law

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From 1987 to 2001, Bengis and Noll engaged in a scheme to harvest large quantities of South Coast and West Coast rock lobsters from South African waters for export to the United States in violation of both South African and U.S. law. Defendants, through their company, Hout Bay, harvested rock lobsters in amounts that exceeded the South African Department of Marine and Coastal Management’s quotas. In 2001, South Africa seized a container of unlawfully harvested lobsters, declined to prosecute the individuals, but charged Hout Bay with overfishing. Bengis pleaded guilty on behalf of Hout Bay. South Africa cooperated with a parallel investigation conducted by the United States. The two pleaded guilty to conspiracy to commit smuggling and violate the Lacey Act, which prohibits trade in illegally taken fish and wildlife, and to substantive violations of the Lacey Act. Bengis pleaded guilty to conspiracy to violate the Lacey Act. The district court entered a restitution order requiring the defendants to pay $22,446,720 to South Africa. The Second Circuit affirmed, except with respect to the extent of Bengis’s liability, rejecting an argument the restitution order violated their Sixth Amendment rights. View "United States v. Bengis" on Justia Law

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NYSEG filed suit against FirstEnergy under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et seq., to recover certain costs incurred in remediating coal tar contamination at certain of NYSEG's manufactured gas plants in upstate New York. NYSEG contends that FirstEnergy is liable as the successor to NYSEG's former parent company, AGECO, for a portion of the cleanup costs. FirstEnergy filed counterclaims against NYSEG and third-party claims against I.D. Booth, the current owner of one of the sites, for cost contribution under section 113(f). The district court held that NYSEG was entitled to recover certain cleanup costs from FirstEnergy based on a veil piercing theory, but limiting that recovery to certain sites. The district court also found I.D. Booth liable for a portion of the cleanup costs at one site. The court held that NYSEG's CERCLA claims against FirstEnergy are not barred by the covenant not to sue; AGECO is not directly liable under CERCLA as an operator; FirstEnergy is liable to NYSEG on a veil piercing theory based on AGECO's control of NYSEG from 1922 to January 10, 1940, but not for contamination created by other AGECO subsidiaries before those subsidiaries merged into NYSEG; NYSEG's claims as to the (a) Plattsburgh site are timely, (b) Norwich site are untimely, and (c) Oswego site are untimely; the district court did not err in calculating total gas production at the sites; the district court did not abuse its discretion in reducing NYSEG's recovery from FirstEnergy by a portion of NYSEG's $20 million insurance settlement; the district court did not abuse its discretion in declining to reduce NYSEG's recovery to reflect the increased value of the remediated properties or NYSEG's alleged delay in the remedial efforts; and I.D. Booth is liable for a portion of cleanup costs and the district court did not abuse its discretion in apportioning liability in this respect. Accordingly, the court affirmed in part, vacated in part, and remanded for further proceedings. View "New York State Elec. & Gas v. FirstEnergy Corp." on Justia Law

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Asarco appealed from the district court's dismissal of its Second Amended Complaint. As part of its Chapter 11 bankruptcy, the bankruptcy court approved two settlement agreements related to the environmental contamination of the Everett Smelter and the Monte Cristo Mining area in Washington State. Asarco paid the United States as a result of those settlements and the Port of Everett $50.2 million for costs related to the remediation of the sites. Asarco then sought contribution, directly and as a purported subrogee, from the Trustees of the residuary trust created by the will of John D. Rockefeller Sr. in 1937. At issue was whether, in 2014, the Trustees may be made to contribute to cleanup costs of environmental contamination allegedly caused by corporations controlled by Rockefeller in Washington State between 1892 and 1903. Assuming arguendo that New York law permitted the imposition of liability on testamentary beneficiaries in this instance, the court concluded that the district court properly dismissed Asarco's contribution claims because they were barred by the applicable three-year statute of limitations, and its subrogation claims because Asarco was not a subrogee. Accordingly, the court affirmed the judgment of the district court. View "Asarco LLC v. Goodwin" on Justia Law

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Cedar & Washington, a real estate developer, filed suit against the owners and lessees of the World Trade Center and others under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-9675, seeking recovery of costs incurred in remediating a nearby building contaminated by the September 11, 2001 attack on the World Trade Center. The court concluded that the attack constituted an "act of war" for purposes of CERCLA's affirmative defense. The attacks directly and immediately caused the release of harmful substances (WTC dust), and were the "sole cause" of the release because the attack "overwhelm[ed] and swamp[ed] the contributions of the defendant[s]." Accordingly, the court affirmed the district court's dismissal of Cedar & Washington's claim. View "In re: September 11 Litigation" on Justia Law

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Defendant paid a general contractor for costs associated with the cleanup of a contaminated parcel of land that defendant owned. After the general contractor failed to remit those payments to plaintiff, a subcontractor who performed the work, plaintiff sought payment directly from defendant. The court concluded that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9607, did not grant the subcontractor a right to recovery against defendant in these circumstances where defendant would effectively be required to pay twice for the same work performed. Accordingly, the court reversed the district court's grant of partial summary judgment to plaintiff and remanded with instructions to grant summary judgment to defendant. View "Price Trucking Corp. v. Norampac Indus., Inc." on Justia Law

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The State filed suit against defendants under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et seq. The State sought to recover costs incurred in investigating and addressing groundwater contamination in the Town of Hempstead caused by pollution emanating from the New Cassel Industrial Area (NCIA). The district court granted defendants' motion for summary judgment and dismissed the action as time-barred by the six year statute of limitations governing suits to recover costs for remedial actions under section 9613(g)(2)(B). The court held that the cleanup activities here were implemented as removal measures and continued to be removal measures at all relevant times. Accordingly, the district court erred in applying the statute of limitations for remedial rather than removal actions. The court vacated the judgment of the district court and remanded for further proceedings. View "State of New York v. Next Millennium Realty" on Justia Law