Earlier this Month, Judge James Boasberg, who had previously ruled that the easement allowing construction of the Dakota Access Pipeline must be vacated due to a failure to comply with NEPA, nonetheless declined to issue an injunction requiring that the pipeline cease operations. The Court’s rationale was clear and straightforward. The Court of Appeals ruled that Judge Boasberg could not enjoin use of the pipeline without finding that all elements of the four-factor test for an injunction had been met. … More
Category Archives: injunctions
The 4th Circuit Stays Construction of the Mountain Valley Pipeline — A Lesson in Preventing a Fait Accompli
Earlier this week, the 4th Circuit Court of Appeals stayed construction of the Mountain Valley Pipeline. The Court did so with a two-sentence order stating that an opinion would follow. The order was issued hours after oral argument. Why the hurry?
It could be that, as reported by Bloomberg (subscription required), the plaintiffs had somehow learned of “a call in which pipeline officials told investors they would quickly trench through streams ‘before anything is challenged.’”
Last week, Judge James Jones declined to issue a preliminary injunction that would have prevented implementation of the Trump Administration’s NEPA revisions. Judge Jones’s explanation was fairly sparse. He merely noted that the plaintiffs had not made the required “clear showing” that they are likely to succeed on the merits, though he did indicate that testimony, including expert opinion, is likely to be necessary.
I can’t say I’m shocked,… More
On Wednesday, the D.C. Circuit Court of Appeals stayed the injunction requiring the shutdown of the Dakota Access Pipeline. It’s a victory for the operator, Energy Transfer LP, simply because it lives to fight another day. From a legal point of view, however, I wouldn’t take that much comfort from the decision.
The basis for the stay was that the District Court did not make explicit findings on the need for an injunction. … More
On Tuesday, Judge John Koeltl ordered EPA to issue a final rule addressing its obligations under the Good Neighbor provisions of the Clean Air Act by no later than March 15, 2021. Two aspects of the decision are worth note.
The big issue in the case, once the Judge disposed of EPA’s jurisdictional arguments, was whether it is impossible for EPA to issue a final rule by the plaintiffs’ suggested date. … More
On Monday, Judge David Faber found Bluestone Coal Corporation liable for 1,904 days of violations of its discharge permit at the Red Fox Surface Mine. All of the violations related to excessive discharges of selenium. Bluestone’s defense, rejected for a second time by Judge Faber, was that the existence of a consent decree precluded the separate action for enforcement of the permit. However, the permit and its specific discharge limit for selenium only came into effect after the entry of the consent decree.… More
BLM Rescission of the Methane Waste Prevention Rule Has Been Vacated; Two Thoughts About the Implications
Last week, Judge Yvonne Gonzalez Rogers vacated BLM’s rescission of the 2016 methane “Waste Prevention Rule.” Although Judge Rogers found many flaws in the rescission rule, I think that two are key.
Sometimes, history repeats itself. Sometimes, that is not a good thing.
After the Obama WOTUS rule was promulgated in 2015, the challenges came fast and furious, and in multiple forums. The Supreme Court, as I put it, adopted the “give me a break” theory over the “just plain nuts” theory, and ruled that challenges to the rule had to be heard in district courts. … More
Almost 50 years ago, Christopher Stone published “Should Trees Have Standing,” suggesting that the natural world should be given legal rights to ensure its protection for future generations. It is not, I say with my usual gift for understatement, an idea that has taken widespread hold in legal systems in the United States. It has had broad philosophical influence, however, and attempts are made periodically to implement Stone’s idea. … More
Late last month, Judge Emmet Sullivan of the Federal District Court for the District of Columbia, remanded to the Fish and Wildlife Service its decision to list the northern long-eared bat as threatened. The decision is lengthy and complicated, but its crux is not.
As Judge Sullivan noted, under the ESA, a species is “endangered” if it “is in danger of extinction throughout all or a significant portion of its range.” A species is “threatened” if it “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. … More
Earlier this month, the 9th Circuit Court of Appeals held that a long-term failure by a state to submit to EPA a TMDL for an impaired water can constitute a “constructive submission” of no TMDL, triggering an obligation on EPA’s part to reject the constructive submission and, in turn, to issue the requisite TMDL itself.
The logic of the decision is straightforward. The Clean Water Act unambiguously imposes a non-discretionary duty on states to submit TMDLs for waters on the so-called “303(d) list.” In turn,… More
Last week, Judge Richard McNamara ruled that the plaintiffs were likely to succeed in their challenge to the very stringent standards for PFAS in drinking water promulgated by the New Hampshire Department of Environmental Services. However, given the importance of the issues, the Court stayed its injunction until December 31, to give the parties time to appeal to the NH Supreme Court.
The Court ruled against the plaintiffs’ claims that the regulations constituted an unfunded mandate and that DES failed to give fair notice and an opportunity to comment on the regulations (DES’s final regulations were substantially more stringent than its proposed regulations). … More
Last week, Federal District Court Judge B. Lynn Winmill granted a preliminary injunction to various NGOs, barring the Bureau of Land Management from implementing amendments BLM had made in 2019 to protection plans for the sage grouse promulgated by BLM in 2015. It makes compelling reading. In 29 pages, it pretty much summarizes everything the Trump administration has done in the environmental arena, and how courts have reacted.… More
On Monday, District Judge Rodney Sippel ordered sweeping injunctive relief against Ameren Missouri, intended to remedy violations of PSD requirements he had previously identified resulting from upgrades to the Ameren Missouri Rush Island generating plant.
Notwithstanding the lengthy opinion, most of the Court’s findings are fairly plain vanilla. Basically, Judge Sippel ordered Ameren Missouri to submit a PSD permit application and he ruled that BACT for control of SO2 emissions at Rush Island required installation of wet flue gas desulfurization equipment.… More
When the Supreme Court decided that the district courts had jurisdiction over challenges to the Obama administration WOTUS rule, I described it as a victory of the “give me a break” doctrine of statutory interpretation over the “just plain nuts” theory. I also noted that the Supreme Court had the luxury of ignoring the chaos that would ensue.
Whatever one may think of the merits of the competing theories,… More
Earlier this week, the 10th Circuit Court of Appeals partially reversed a district court decision, and ordered the Bureau of Land Management to vacate the NEPA approvals and permits it had issued authorizing the drilling of a number of fracked wells in the Mancos Shale, near Chaco Canyon in New Mexico. The decision is not earthshattering – pun most definitely intended! – but there are a few features of note. … More
On Monday, District Judge Haywood Gilliam imposed a schedule on EPA for review of state plans under EPA’s 2016 rule for emissions from municipal solid waste landfills. The ruling is notable for two reasons.
Because EPA did not dispute that it had missed certain deadlines, its first line of defense wasn’t that it complied with the statute; it was that the states challenging EPA’s delay did not have standing. … More
In 2016, DOI Secretarial Order 3338 imposed a moratorium on new coal leases on federal land until BLM prepared a programmatic environmental impact statement intended to address, among other issues, the impact of coal leasing on climate change.
Times do change. In 2018, DOI Secretarial Order 3348 eliminated the moratorium and the requirement to prepare a PEIS. Litigation ensued.
Last week,… More
Two recent cases illustrate the potential scope of, and the potential limitations on, injunctive relief in RCRA citizen suits. First up, Schmucker v. Johnson Controls.
Contamination was detected at the Johnson Controls manufacturing facility in Goshen, Indiana. In response, Johnson Controls performed substantial remediation under the auspices of the Indiana Department of Environmental Management’s Voluntary Remediation Program. Nonetheless, significant contamination remains at the site,… More
Late last month, Federal Judge Rodney Sippel ruled that EPA could obtain injunctive relief against Ameren Missouri in the long-running NSR enforcement case concerning Ameren’s Rush Island Plant. The Court had already ruled that Ameren had violated the Clean Air Act by failing to obtain a PSD permit prior to implementing substantial modifications at the plant.
Having lost at the liability stage, Ameren took three shots at avoiding injunctive relief. … More
In August, a judge in South Carolina issued a nationwide injunction against the “Suspension Rule,” which delayed the effective date of the 2015 Waters of the United States rule. Now, a judge in Washington state has gone even further. Judge John Coughenour has vacated the rule.
The core of the new decision is the same as that in South Carolina. … More
Deja Vu All Over Again — The Trump Administration Refuses to Provide “Good Reasons” For Its Change in Course on Keystone XL
Yesterday, Judge Brian Morris granted summary judgment to plaintiffs on some of their claims challenging the State Department’s new Record of Decision for the Keystone XL project. Whatever our Tweeter-in-chief may say, it’s actually a fairly balanced decision, which ruled in the Administration’s favor on a number of issues.
The most noteworthy part of the decision takes the State Department to task for failing to provide “good reasons” for the change in the ROD concerning climate change. … More
Earlier this month, the 5th Circuit Court of Appeals granted something of a reprieve to EPA’s New Source Review enforcement initiative. The Court first confirmed what everyone other than EPA and DOJ already knew – that failure to get a pre-construction permit is a one-time offense, so that penalty claims for alleged violations more than five years prior to filing are barred by the statute of limitations.… More
On Thursday, the Trump Administration’s “Suspension Rule,” which delayed implementation of the Obama Waters of the United States Rule for two years was struck down. Judge David Norton of the District of South Carolina issued a nationwide injunction against the rule.
It’s important to note that the case was not about the merits of the WOTUS rule. It was simply about the Trump administration’s failure to comply with the Administrative Procedure Act in promulgating the Suspension Rule.… More
BLM Loses Another One: Resource Management Plans for Coal Leasing Areas Are Sent Back to the Drawing Board
Late last month, Judge Brian Morris granted summary judgment to plaintiffs on three claims alleging that the environmental impact analysis supported BLM’s Resource Management Plans for managing coal leases in the Powder River Basis were flawed. It’s a very thoughtful decision. Judge Morris rejected three of plaintiffs’ claims and did not provide the injunctive relief that they sought. Nonetheless, it’s an important setback for BLM and further evidence that courts are going to require more of BLM in assessing climate impacts associated with energy resource development.… More
As I’ve noted previously, the fight over the Trump Administration’s effort to change course on a number of Obama environmental initiatives is going to focus in significant part on FCC v. Fox Television Stations, in which the Supreme Court stated that agencies are free to reconsider policies so long as:
the new policy is permissible under the statute, there are good reasons for it,… More
Last week, I noted that EPA had been ordered to respond to a petition by Connecticut under § 126(b) of the Clean Air Act. This week, DOE was ordered to promulgate energy efficiency rules under the Energy Policy and Conservation Act. My mother used to say that comparisons are odious, but I have to say that DOE’s conduct was even more egregious than that of EPA.… More
Earlier this week, EPA was ordered to take final action on a Clean Air Act § 126(b) petition filed by the State of Connecticut, asserting that emissions from the Brunner Island Steam Electric Station in Pennsylvania contribute to nonattainment in Connecticut. EPA did not dispute liability; it had clearly missed the original statutory deadline. The case was all about the remedy. EPA asked to be given until December 31,… More
Settling Federal Environmental Enforcement Claims — Some Payments to Third Parties May Be Allowed (But Not Many)
Earlier this month, Jeffrey Wood, Acting Assistant Attorney General for Environment and Natural Resources issued a memorandum expanding on Jeff Sessions’ memorandum of June 5, 2017, generally barring payments to third parties as part of government settlements. (And, yes, I know there should be another “s” after the apostrophe, but I’m hereby announcing a new rule; if I can’t pronounce it, I’m not writing it!) The Wood Memorandum affirms – of course – the June 5 Memorandum,… More
If this Administration’s first year has taught us anything, it is that determining when EPA has an affirmative duty to act is going to be very important over the remaining 3 (or 7!) years of the Trump presidency. That was the subject of last week’s decision in A Community Voice v. EPA, in which the 9th Circuit ordered EPA to issue a proposed rule updating its lead paint standards within 90 days,… More
Whether the Clean Water Act regulates discharges to groundwater has been a topic of significant debate. At this point, there seems to be something of a trend in the cases towards concluding it does, but it remains true that all of the courts of appeal that have addressed the issue have concluded that it does not. As I have noted, the problem with the “yes” answer is that pretty much all groundwater eventually discharges to surface water,… More
EPA Administrator Scott Pruitt today issued a Directive prohibiting the practice of “sue and settle.” He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.” They are two very strange documents.
As to the substance of how EPA will handle future citizen suit claims, there are some specific concrete steps which individuals and groups across the political spectrum actually can support. … More
Last week, the 10th Circuit Court of Appeals dismissed as prudentially unripe appeals of last year’s District Court decision striking down BLM’s 2015 fracking rule. The District Court ruled that BLM had no authority to issue the rule. At the time, I thought that the District Court was on shaky ground. So did BLM and various environmental groups. They appealed.
Last week, the 10th Circuit Court of Appeals reversed and remanded a District Court decision approving a decision by the Bureau of Land Management to approve new leases on mines that account for 20% of U.S. coal production. The decision is just the latest in a series of cases making clear that courts will not approve new – or renewed – energy production that does not appropriately address the impacts of a project on climate change.… More
Hard on the heels of decision upholding the Illinois “zero-emission credit” program to prop up nuclear plants in that state, Judge Valerie Caproni of the South District of New York has now upheld a similar ZEC program in New York. There’s definitely a trend here. So long as state programs do not directly interfere with wholesale markets, it looks as though they will be affirmed.
(Renewed caveat: This firm represents,… More
Last year, the 5th Circuit Court of Appeals vacated the decision by District Judge David Hittner not to impose any penalties on ExxonMobil for violations alleged in a Clean Air Act citizens’ suit concerning ExxonMobil’s Baytown facility. At the time, I asserted that the case was largely a win for ExxonMobil.
Last week, Judge Hittner, in an opinion which was admirably scrupulous in not trying to dodge the 5th Circuit remand,… More
Earlier this week, the 10th Circuit Court of Appeals reversed a District Court decision and vacated an injunction which had prevented the U.S. Fish & Wildlife Service from reintroducing the Mexican gray wolf onto certain federal lands in New Mexico. The decision seems fairly straightforward and plainly correct. The interesting aspect of the case is the Court’s discussion of state sovereignty.
The State of New Mexico argued in part that the reintroduction of wolves onto federal land without a permit from the State was a violation of the State’s sovereignty. … More
On Wednesday, federal Judge Christopher Cooper ordered EPA to promulgate emissions standards for 13 sources of hazardous air pollutants by June 30, 2020. EPA admitted that it missed statutory deadlines to do so; the only argument was over how much time EPA should have. EPA asked for 4 ½ years, while the plaintiffs suggested two. Judge Cooper pretty much split the difference.
Why is the case important? … More
Last Monday, in a comprehensive, 189-page opinion, Judge Rodney Sippel ruled that Ameren Missouri had violated EPA’s PSD regulations by failing to get permits for upgrades in 2007 and 2010 at its Rush Island facility. As I noted when Judge Sippel denied cross-motions for summary judgment, the result is not really a surprise.
Moreover, Judge Sippel’s decision is not based on any extreme reading of the law. … More
As I noted when the 5th Circuit Court of Appeals stayed EPA’s disapproval of Texas’s regional haze plan, EPA had pretty much no chance of winning. Although the parties then stayed the litigation to talk settlement, EPA announced yesterday that it was seeking a voluntary remand of the final rule. You don’t have to be privy to any confidential information to draw the conclusion that a certain election on November 8 rather drastically reduced EPA’s leverage in those negotiations.… More
Last week, Judge John Preston Bailey ruled that EPA had violated a non-discretionary duty by failing comply with the requirement of § 321(a) of the Clean Air Act that it:
Conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision [sic] of the Clean Air Act….
I’ve noted in the past that good lawyering matters. … More
FWS Goes Back to Square One On Listing the Wolverine. It’s Not Going to Be Any Easier This Time Around.
As we noted in this space in April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine as threatened under the ESA. Bowing to the inevitable, the FWS has now published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.… More
Last week, Judge Michael Fitzgerald granted summary judgment to the plaintiffs in a citizen suit alleging that BLM’s Environmental Impact Statement prepared to address whether to open certain lands in California to mineral development was inadequate. Judge Fitzgerald concluded that the EIS pretty much completely failed to address the potential risks of fracking and that, as a result, the EIS did not comply with NEPA.… More
Earlier this month, the 5th Circuit Court of Appeals stayed EPA’s disapproval of the Texas and Oklahoma regional haze state implementation plans, as well as EPA’s promulgation of its own federal implementation plan. The opinion is a thorough rejection of EPA’s decision. Although this was only a stay order, I would rate EPA’s likelihood of ultimately prevailing on the merits as approximately zero. There are a number of significant take-aways from the decision:
- EPA’s assessment of regional haze SIPs is not generally of “nationwide scope or effect” and therefore will be subject to review in the court of appeals responsible for the state at issue,…
Yesterday, Judge Scott Skavdahl of the District of Wyoming held that the Bureau of Land Management did not have authority to regulate the environmental impacts of fracking. I think Judge Skavdahl probably got it right, but I also think it’s a much closer question than the Judge acknowledged and I could imagine either the 10th Circuit or the Supreme Court reaching a different conclusion.
Judge Skavdahl first reviewed the various statutes cited by BLM as providing authority for the rule. … More
5th Circuit Vacates Verdict for ExxonMobil in CAA Citizen Suit: Still Not Much of a Win for the Plaintiffs
Last Friday, the 5th Circuit Court of Appeals vacated a District Court decision which had refused to impose penalties on ExxonMobil for various violations of the Clean Air Act at ExxonMobil’s Baytown refinery. While the trade press has focused on the remand, I think that this is largely a win for ExxonMobil and, on balance, helpful to the regulated community. Here’s why:
- The Court agreed that “deviation reports”,…
Last week, Judge John Agostini ruled that the Natural Gas Act preempts Article 97 of the Massachusetts Constitution, which otherwise would have required a 2/3 vote of the Legislature before Article 97 land could be conveyed to Tennessee Gas Pipeline Company for construction of a gas pipeline to be built in part through Otis State Forest.
Not only did Judge Agostini conclude that Article 97 is preempted,… More
A Substantive Due Process Right to Climate Change Regulation? What’s a Lonely Apostle of Judicial Restraint To Do?
Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per million by 2100, should not be dismissed.
Yesterday, the Supreme Court stayed EPA’s Clean Power Plan rule. No matter how much EPA and DOJ proclaim that this says nothing about the ultimate results on the merits, the CPP is on very shaky ground at this point.
I finally caught up with the brief filed by the government last week, opposing the motion to stay the EPA Clean Power Plan rule, pending full judicial review. I just don’t see the stay being granted (of course, I did not see it coming with the WOTUS rule, either, so I’m not quite infallible). The motion should fail on both the irreparable injury and public interest prongs of the test for issuance of a stay.… More
Last year, after a string of defeats for EPA in its NSR enforcement initiative, I suggested that the initiative was in trouble, but that EPA was probably not yet ready to concede defeat. After the latest blow, earlier this month, EPA has to be reconsidering. I assume that EPA won’t give up completely until it has lost everywhere or the Supreme Court has weighed in, but the NSR initiative is definitely on life support at this point.… More
Two Days, Three Decisions, One Big Mess: Welcome to Judicial Review of the Waters of the United States Rule
On Wednesday, Judge Irene Keeley of the Northern District of West Virginia held that district courts do not have jurisdiction to hear challenges to EPA’s rule defining waters of the United States, because courts of appeal have original jurisdiction over “any effluent limitation or other limitation.” Yesterday, Judge Lisa Wood of the Southern District of Georgia agreed.
Later yesterday, Judge Ralph Erickson of the District of North Dakota disagreed. … More
As we noted in 2013, two different Courts of Appeal had ruled that injunctive relief is not available in PSD/NSR enforcement cases against former owners. Both United States v. Midwest Generation and United States v. EME Homer Generation held that, because the former owner no longer controls the site, courts cannot impose injunctive relief against them. As the Court stated in EME Homer Generating:
with time travel yet to be discovered,… More
In a memorandum issued earlier this month, EPA Assistant Administrator for Enforcement Cynthia Giles encouraged use by EPA staff of “Next Generation Compliance Tools” in civil settlements. Some of the tools are more “next generation” than others, but they all bear watching by the regulated community. The specific tools highlighted in the Giles memorandum include:
- Advanced monitoring, including real-time monitoring of ambient pollution levels at the facility fence-line or in the immediate neighborhood
- Third party compliance verification
- Electronic reporting
- Increased public availability of compliance data
To me,… More
If readers have been wondering when GHG regulation would truly feel real, EPA may have delivered the answer yesterday, with its announcement of a $350 million settlement with Hyundai and Kia over allegations of violations of EPA’s GHG tailpipe standards. The details may matter only to those subject to the tailpipe rule, but they do demonstrate that EPA is not merely regulating GHG emissions for show;… More
Last Friday, EPA lost another NSR enforcement case. Not only that, but this was a case EPA had previously won. As we noted last August, Chief Judge Philip Simon of the Northern District of Indiana, had previously ruled that the United States could pursue injunctive relief claims against United States Steel with respect to allegations by EPA that US Steel had made major modifications to its plant in Gary,… More
The Endangered Species Act is a powerful tool for the protection of threatened and endangered species and their habitats. Just how powerful was made clear last week when the 9th Circuit Court of Appeals largely reversed a trial court opinion and essentially sustained actions taken by the Fish and Wildlife Service to protect the delta smelt. The “reasonable and prudent alternatives” identified in the Biological Opinion issued by the FWS will result in substantially less water being exported from northern California to southern California.… More
As I have previously noted, the government’s record in NSR enforcement cases has been going downhill, particularly with important defeats before the 3rd and 7th Circuits’ Courts of Appeals. The latest governmental defeat came late last week, in Pennsylvania v. Allegheny Energy, when Chief Judge Conti granted judgment for the defendants on claims alleging both NSR and NSPS violations.… More
More on Old NSR Claims: Injunctive Relief Remains Available Against Original Owners Foolish Enough Not to Have Sold
As we noted last week and last month, the 3rd and 7th Circuits have ruled that violations of the obligation to undertake NSR review prior to implementing major modifications are not continuing, but are instead one-time violations occurring at the time the facilities undertake the modification. These holdings meant that EPA could not pursue either former owners – because they no longer control the facilities – or current owners – because they never violated the statute and have no ongoing obligation to correct the former owner’s violation.… More
The Final Nail In the Coffin on EPA’s Enforcement Initiative Against Historic PSD Violations? The Third Circuit Agrees That PSD Violations Are Not Ongoing
Only last month, the 7th Circuit ruled that alleged violations of the Clean Air Act’s PSD requirements are not ongoing. On Wednesday, in United States v. EME Homer Generation, the 3rd Circuit agreed. Like the 7th Circuit, the 3rd Circuit did not really even view the question as difficult, finding the statute unambiguous and never reaching the second step of traditional Chevron analysis.… More
What To Do When You Are Issued A CERCLA Injunction To Perform A $1.5 Billion Cleanup — Lower Fox River Superfund Update
In a 78 page decision in the Lower Fox River Superfund case issued last month, the federal court issued an injunction against NCR Corp. and three other PRPs requiring them to perform a $1.5 billion remedy. No company ever wants to receive such an injunction and NCR sought to soften the impact of that injunction by proposing that it would share the costs of performing the remedy on an interim per capita basis with the three other PRPs. … More