Articles Posted in Environmental Law

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The Ninth Circuit affirmed the district court's judgment for plaintiffs in an action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This case involved Teck Metals' liability for dumping several million tons of industrial waste into the Columbia River. Determining that it had jurisdiction, the panel held that the district court properly awarded the Colville Tribes all investigation expenses as costs of removal, even though many of these activities played double duty supporting both cleanup and litigation efforts; the district court properly awarded the Colville Tribes their attorney's fees, and the panel did not disturb the finding that approximately $4.86 million was a reasonable award in this case; and Teck did not make a sufficient showing to establish that liability for environmental harm to the Site was theoretically capable of apportionment. View "Pakootas v. Teck Cominco Metals, Ltd." on Justia Law

Posted in: Environmental Law

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Oregon's restrictions on the use of motorized mining equipment in rivers and streams containing essential salmon habitat, adopted into law as Senate Bill 3, were not preempted by federal law. The Ninth Circuit affirmed the district court's grant of summary judgment for the state, and held, assuming without deciding that federal law preempts the extension of state land use plans onto unpatented mining claims on federal lands, Senate Bill 3 was not preempted because it constituted an environmental regulation, not a state land use planning law. Moreover, Senate Bill 3 did not stand as an obstacle to the accomplishment of the full purposes and objectives of Congress. View "Bohmker v. Oregon" on Justia Law

Posted in: Environmental Law

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The Ninth Circuit affirmed the district court's dismissal of a complaint challenging Oregon's Clean Fuels Program, alleging that it violated the Commerce Clause and was preempted by section 211(c) of the Clean Air Act (CAA). The Program regulates the production and sale of transportation fuels based on greenhouse gas emissions. Determining that Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070, 1081 (9th Cir. 2013), was controlling as to the Commerce Clause claim, the panel held that, like the California Low Carbon Fuel Standard at issue in Rocky Mountain, the Oregon Program discriminated against fuels based on lifecycle greenhouse gas emissions, not state of origin. The panel also held that the complaint failed to plausibly allege that the Oregon Program was discriminatory in purpose, and the Program did not violate the Commerce Clause and principles of interstate federalism by attempting to control commerce occurring outside the boundaries of the state. The panel also held that the EPA's decision not to regulate methane was not preemptive under the CAA. View "American Fuel & Petrochemical Manufacturers v. O'Keeffe" on Justia Law

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The Ninth Circuit denied a petition for review challenging the EPA's approval of a 1994 revision to Montana's State Implementation Plan. The panel held that the EPA's interpretation of "a 2-year period which precedes the particular date" was a permissible one. Therefore, the EPA's approval of Montana's 2015 Implementation Plan was neither arbitrary nor capricious, and Information Center's comment regarding Montana's interpretation of the language in question raised a question of implementation, better addressed at a different time. View "Montana Environmental Information Center v. Thomas" on Justia Law

Posted in: Environmental Law

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The Ninth Circuit amended the certification order in an appeal challenging Nevada state water law. The panel certified the following questions to the Supreme Court of Nevada: Does the public trust doctrine apply to rights already adjudicated and settled under the doctrine of prior appropriation and, if so, to what extent? If the public trust doctrine applies and allows for reallocation of rights settled under the doctrine of prior appropriation, does the abrogation of such adjudicated or vested rights constitute a "taking" under the Nevada Constitution requiring payment of just compensation? View "Mineral County v. Walker River Irrigation District" on Justia Law

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CBD filed suit challenging the FWS's decision not to list the arctic grayling as an endangered or threatened species under the Endangered Species Act (ESA). The Ninth Circuit reversed in part the district court's grant of summary judgment to FWS, holding that FWS acted in an arbitrary and capricious manner. The panel held that the 2014 Finding's decision that listing the arctic grayling was "not warranted" was arbitrary and capricious because it ignored the DeHaan study's evidence that shows decreasing numbers of breeders and instead heavily relied on a contrary finding showing increasing population; did not provide a reasoned explanation for relying on the existence of cold water refugia in the Big Hole River; failed to consider the synergistic effects of climate change solely because of "uncertainty"; and concluded that the Ruby River population was viable based on data collected over a shorter period than that underlying the 2010 Finding and FWS's own established criteria for viability. View "Center for Biological Diversity v. Zinke" on Justia Law

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The alliance filed suit alleging that the Forest Service violated the National Forest Resource Management Plan after approving the Lost Creek Project, which proposed landscape restoration activities on approximately 80,000 acres of the Payette National Forest. The Alliance also raised claims under the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The panel held that the final Record of Decision (ROD) for the Lost Creek Project was arbitrary and capricious because the standards, guidelines, and desired conditions that determine the forest conditions for Management Prescription Categories (MPC) 5.1 were different from those for MPC 5.2. The panel also held that the Forest Service's decision to adopt a new definition of "old forest habitat" for the Lost Creek Project area was arbitrary and capricious, and a violation of the National Forest Management Act. The panel held, however, that the Project's minimum road system designation was not arbitrary or capricious where the Forest Service fully explained its decision in selecting an alternative and considered each of the factors listed under 36 C.F.R. 212.5; the Forest Service did not violate NEPA by improperly incorporating, or "tiering to," the Wildlife Conservation Strategy (WCS) amendments or the WCS draft environmental impact statement; and challenges to the Forest Service's failure to reinitiate consultation with the U.S. Fish and Wildlife Service for the endangered bull trout under Section 7 of the ESA was moot. Accordingly, the panel affirmed in part, reversed in part, and remanded. View "Alliance for the Wild Rockies v. USFS" on Justia Law

Posted in: Environmental Law

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The Ninth Circuit granted a petition for review of the EPA's 2017 order maintaining a tolerance for the pesticide chlorpyrifos. In this case, the EPA did not defend the order on the merits but argued that despite petitioners having properly-filed administrative objections to the order more than a year ago and the statutory requirement that the EPA respond to such objections "as soon as practicable," the EPA's failure to respond to the objections deprived the panel of jurisdiction to adjudicate whether the EPA exceeded its statutory authority in refusing to ban use of chlorpyrifos on food products. The panel held that obtaining a response to objections before seeking review by this court was a claim-processing rule that did not restrict federal jurisdiction, and that could, and here should, be excused. Accordingly, the court vacated the order and remanded to the EPA with directions to revoke all tolerances and cancel all registrations for chlorpyrifos within 60 days. View "League of United Latin American Citizens v. New York" on Justia Law

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Alliance filed suit against Federal Defendants to enjoin implementation of the East Reservoir Project on the Kootenai National Forest in northwest Montana. While this appeal was pending, the Forest Service reinitiated consultation with the FWS and subsequently issued a new biological opinion for the Lynx Amendment, completing a reconsultation process. Therefore, the panel rejected Alliance's assertion that the Forest Service's decision to approve the Project was arbitrary and capricious because it improperly relied on the Lynx Amendment in determining the impact of Project activities on lynx and lynx critical habitat. The panel dismissed the claim and remanded to the district court with directions to vacate the part of its summary judgment ruling that addressed this lynx related claim and to dismiss it as moot. However, the panel held that Alliance was entitled to summary judgment on its claim that the Forest Service failed to comply with the Motorized Vehicle Access Act (Access Amendments). In this case, the Forest Service's failure to analyze whether the Project will increase the total linear miles of permanent roads within the Tobacco BORZ polygon (the overlapping area in which Cabinet-Yaak grizzly bears were sometimes found) beyond the baseline did not satisfy the plain terms of the Access Amendments and was therefore arbitrary and capricious. The panel reversed the district court's judgment as to this claim and remanded for further proceedings. View "Alliance for the Wild Rockies v. Savage" on Justia Law

Posted in: Environmental Law

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The Ninth Circuit denied the government's petition for a writ of mandamus, asking the court to direct the district court to dismiss a case seeking various environmental remedies, or to stay all discovery and trial. The court denied the government's first mandamus petition, concluding that it had not met the high bar for relief at that stage of the litigation. The court held that no new circumstances justified the second petition where the government failed to satisfy the Bauman factors at this stage of the litigation, because the government's fear of burdensome or improper discovery did not warrant mandamus relief in the absence of a single specific discovery order; the government's arguments as to the violation of the Administrative Procedure Act and the separation of powers failed to establish that they would suffer prejudice not correctable in a future appeal; and the merits of the case could be resolved by the district court or in a future appeal. View "United States v. United States District Court for the District of Oregon" on Justia Law