Cas Case L Law U Upda pdate What you see is what you get - PowerPoint PPT Presentation

Cas Case L Law U Upda pdate What you see is what you get Ashleigh gh K K. Acevedo 32 nd Annual Texas Environmental Superconference August 7, 2020 *Current as of August 7, 2020

WATER This Photo by Unknown Author is licensed under CC BY-SA

County of Maui, Hawaii v. Hawaii Wildlife Fund No. 18-260, 2020 WL 1941966 (Apr. 23, 2020) • Issue: whether indirect discharges into navigable waters, such as through groundwater, require a NPDES permit • Permit is required when “pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water” • Balance relevant factors

Manner it enters jurisdictional water Dilution or Transit time County of Maui chemical changes Nature of material through Functional Equivalent which pollutant Relevant Factors travels Amount entering jurisdictional water Distance Traveled relative to amount leaving point source Degree to which pollutant maintains specific identity

WOTUS Update Not Far Too Far Enough State of California et al. v. Wheeler et al. , No. New Mexico Cattle Growers’ Association v. EPA • 2020 Navigable Waters Protection 3:20-cv-03005 (N.D. Cal.) et al ., No. 1:19-cv-00988 (D. N.M.) Rule to redefine “waters of the Oregon Cattlemen’s Assoc. v. EPA et al. , No. Conservation Law Foundation et al. v. EPA et al. , US” 3:19-cv-00564-AC (D. Or.) (dismissed without No. 1:20-cv-10820 (D. Mass.) prejudice August 6, 2020) o Constrains CWA jurisdiction South Carolina Coastal Conservation League et Washington Cattlemen’s Assoc. v. EPA et al. , al. v. Wheeler et al. , No. 2:20-cv-01687 (D. S.C.) No. 2:19-cv-00569-JCC (W.D. Wash.) • Effective June 22, 2020 Chesapeake Bay Foundation, Inc. et al v. • Ongoing litigation Wheeler et al. , No. 1:20-cv-01063-RDB and No. 1:20-cv-01064-RDB (D. Md.) • Enjoined in Colorado (on appeal) State of Colorado v. EPA et al. , No. 20-cv-1461- WJM-NRN (D. Colo.) Puget Soundkeeper Alliance et al. v. EPA et al. , No. 2:20-cv-950 (W.D. Wash.) Pascua Yaqui Tribe et al. v. EPA et al. , No. 4:20- cv-00266-RM (D. Ariz.) Navajo Nation v. Andrew Wheeler et al. , No. 2:20-cv-00602-MV-GJF (D. N.M.).

Northern Plains Res. Council v. U.S. Army Corps of Eng’rs , No. CV-19-44-GF-BMM, 2020 WL 875455 (D. Mont. Apr. 15, 2020) • Viability of NWP 12 o Authorizes discharges of dredged or fill material that result in the loss of up to one-half acre of jurisdictional waters associated with the construction, maintenance, repair, and removal of, among other infrastructure, oil and gas pipelines • Challenged in context of Keystone XL Pipeline o Failure to perform consultation under Endangered Species Act Section 7(a)(2) This Photo by Unknown Author is licensed under CC BY-NC-ND • District court vacated NWP 12 for new projects o Ninth Circuit declined to stay vacatur o Supreme Court stated vacatur except as to Keystone XL Pipeline

Other Water Cases of Note Bush v. Lone Oak Club, LLC , 18-0264, 2020 WL 1966931 (Tex. Apr. 24, 2020) • Title dispute between Texas General Land Office and private Lone Oak Club over ownership of the submerged bed of the Lone Oak Bayou. The Court clarified the definition of “navigable streams” as including portions of the stream both above and below the tide line, and that those beds could be conveyed to private owners. Petition of the Cities of Garland, Mesquite, Plano & Richardson Appealing the Decision by the N. Tex. Mun. Water Dist. Affecting Wholesale Water Rates , Docket No. 50382, 2020 WL 757950 (Tex. P.U.C. Feb. 27, 2020) • The Public Utility Commission of Texas found that the NTMWD wholesale water rates were adverse to the public interest—the first such ruling since 1994. Pape Partners, Ltd. v. DRR Family Properties LP, 10-17-00180-CV, 2020 WL 499639 (Tex. App.—Waco Jan. 29, 2020, no pet.) • Holding that the Texas Legislature has vested the Texas Commission on Environmental Quality the exclusive jurisdiction to determine surface water rights and reconfirms the longstanding principle that parties must exhaust their administrative remedies before filing suit in district court. Hatchett v. W. Travis County Public Utility Agency , No. 03-18-00668-CV, 2020 WL 1161108 (Tex. App.—Austin Mar. 11, 2020) • In an issue related to impervious cover requirements, the court affirmed trial court’s dismissal of uniform declaratory judgements against the water district, but finding that the district was not afforded governmental immunity under the Texas Local Government Code’s vested rights protections.

WASTE This Photo by Unknown Author is licensed under CC BY-ND

Atlantic Richfield Company v. Christian , 140 S.Ct. 1335 (U.S. Apr. 20, 2020) • Are state common-law claims seeking cleanup remedies that conflict with EPA- ordered remedies a “challenge” to EPA’s cleanup and is jurisdictionally barred by § No 113(b) & (h) of CERCLA? • Is a landowner at a Superfund site is a “potentially responsible party” that must seek EPA’s approval under CERCLA § 122(e)(6) before engaging in remedial action, Yes even if EPA has never ordered the landowner to pay for a cleanup? • Does CERCLA preempts state common law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies? Not Answered

Other Waste Cases of Note Baptiste et al. v. Bethlehem Landfill Company , --- F.3d ----2020 WL 3956680 (3rd Cir. 2020) •Third Circuit reinstated lawsuit against noxious odors emanating from a landfill finding that the Pennsylvania Solid Waste Disposal Act’s savings clause preserves private “rights of action or remedies” existing “under the common law or decisional law or equity” Government of Guam v. United States of America , 950 F.3d 104 (D.C. Cir. 2020) •Ruling that Guam was barred by the 3-year statute of limitations for filing a Superfund claim for the cleanup of a landfill—the Ordot Dump—where the U.S. Navy disposed of military munitions and chemicals. The unlined landfill released contaminants into nearby rivers flowing into the Pacific Ocean. A Clean Water Act consent decree between Guam and the U.S. for the discharges triggered the 3-year statute of limitations for Guam to pursue a contribution claim against the Navy.

AIR This Photo by Unknown Author is licensed under CC BY-NC

State of New York, et al. v. U.S. Envtl. Protection Agency, No. 19-1230 (D.C. Cir. July 14, 2020) • Clean Air Act Good Neighbor Provision challenge o New York State petitioned against power-generating facilities in nine nearby states o Inability to meet 2008 and 2015 NAAQS for ozone • EPA rejected petition • D.C. Circuit rejected EPA’s handling of the petition “The EPA offered insufficient reasoning for the convoluted and seemingly unworkable showing it demanded of New York’s petition.”

Other Air Cases of Note Sierra Club, et al. v. EPA, et al., No. 20-60303 (5 th Cir., pet. filed Apr. 16, 2020) • Fifth Circuit stayed a lawsuit regarding the EPA’s decision to approve revisions to Texas’ State Implementation Plan for ozone standards. The stay is to work out whether the D.C. Circuit is the appropriate venue for this matter. (A similar suit was filed in the D.C. Circuit)

CLIMATE CHANGE This Photo by Unknown Author is licensed under CC BY

Mayor & City Council of Baltimore v. BP P.L.C., et al., 952 F.3d 452 (4th Cir. 2020) • Climate change suit remanded to state court • Fourth Circuit held: o Cannot review entire remand order, only portion of order under which the court is excepted from reviewing under 28 U.S.C. § 1447(d) • Circuit split o Fuel supply contract, oil and gas lease from the Department of Interior, and agreement for strategic petroleum reserve insufficient to establish that the companies were “acting under” a federal officer, which is the sole basis for removal • Affirm remand to state court

Other Climate Change Cases of Note County of San Mateo et al. v. Chevron Corporation et al. , Docket No. 18-15499 (9th Cir. May 26, 2020) • Ninth Circuit remanded California public nuisance suit back to state court. 28 U.S.C. § 1447(d) limited appellate review of an order to remand to the extent it addressed whether removal was proper under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). The Ninth Circuit further held that the district court did not err in finding that it lacked subject matter jurisdiction under the federal-officer removal statute. City of Oakland et al. v. BP PLC et al ., Docket No. 18-16663 (9th Cir. May 26, 2020) • Ninth Circuit found that the state-law claim for public nuisance does not require the resolution of a substantial question of federal law and is thus not a federal question. Further, the Clean Air Act does not completely preempt state law nuisance claims Commonwealth of Massachusetts v. Exxon Mobil Corporation , No. CV 19-12430-WGY, 2020 WL 2769681 (D. Mass. May 28, 2020) • Massachusetts federal district court remanded a climate change lawsuit brought by the Massachusetts Attorney General against ExxonMobil, alleging that ExxonMobil defrauded consumers and investors

LAND USE & GOVERNANCE This Photo by Unknown Author is licensed under CC BY