Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Articles Posted in Environmental Law
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In an order, the panel granted a petition for panel rehearing, withdrew the opinion filed September 16, 2021, and replaced it with a superseding opinion that granted a petition for review brought by environmental organizations challenging a National Pollutant Discharge Elimination System (NPDES) Permit issued by the EPA for Concentrated Animal Feeding Operations (CAFOs) in Idaho.In the superseding opinion, the panel wrote that, because the Permit does not require monitoring that would ensure compliance with its effluent limitations, the EPA’s issuance of the Permit was arbitrary, capricious, and a violation of law. The panel granted the petition and remanded the Permit to the EPA for further proceedings consistent with this opinion. View "Food & Water Watch v. Environmental Protection Agency" on Justia Law

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To comply with the National Environmental Policy Act, the FAA issued an Environmental Assessment (EA) for the construction and operation of an air cargo facility at the San Bernardino International Airport. The Record of Decision found no significant environmental impact. Objectors asserted that the FAA did not conform its study areas to the FAA’s Order 1050.1F Desk Reference.The Ninth Circuit rejected a petition for review. The FAA’s nonadherence to the Desk Reference could not alone serve as the basis for holding that the FAA did not take a “hard look” at the environmental consequences. Rejecting an argument that the FAA should have expanded its assessment to include more than 80 projects, the court held that the record showed that the FAA did consider the fact that the additional projects would result in massive average daily trips in the first year of operations.The court rejected California’s argument that the FAA needed to create an environmental impact statement because a California Environmental Impact Report found that the proposed Project could result in significant impacts on air quality, greenhouse gas, and noise. The South Coast Air Quality Management District’s own assessment was that the Project will comply with federal and state air quality standards. The court also rejected California’s noise concerns. Objectors failed to show arbitrariness or capriciousness in the EA’s truck trip calculation method and provided no reason to believe that the Project threatened to violate federal ozone standards. View "Center for Community Action and Environmental Justice v. Federal Aviation Administration" on Justia Law

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The Clean Water Act requires states to adopt water quality standards regulating pollutants in their navigable waters, including the designated uses for the water body, such as supporting aquatic life or recreational use and the “water quality criteria” necessary to protect those uses, 33 U.S.C. 1313(c)(2)(A). The EPA approved Montana’s water quality standards in 2015. In 2017, Montana obtained EPA’s approval of a variance in the water quality standard, which covered 36 municipal wastewater treatment facilities for up to 17 years and allowed those facilities to discharge more nitrogen and phosphorus into wadeable streams than would be permitted under the approved base water standards.The Ninth Circuit rejected a challenge. The Act did not preclude the EPA from taking compliance costs into account when approving the variance requests. Congress has not directly spoken to that precise question and the EPA reasonably construed section 1313(c)(2)(A) as permitting it to consider compliance costs. The EPA’s variance regulation neither requires compliance with the highest attainable condition at the outset of the variance term nor requires compliance with base water quality standards by the end of that term. The regulations include numerous features to ensure that dischargers and waterbodies subject to variances continued to improve water quality, consistent with the goals of the Act, including supporting aquatic life and recreational uses whenever attainable. View "Upper Missouri Waterkeeper v, United States Environmental Protection Agency" on Justia Law

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River Watch sued the City of Vacaville under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6902(b), claiming that Vacaville’s water wells were contaminated by a carcinogen (hexavalent chromium), which was transported to Vacaville residents through its water distribution system, thereby contributing to the transportation of a solid waste in violation of RCRA. The district court concluded that the hexavalent chromium was not a “solid waste” under RCRA because it was not a “discarded material” and granted Vacaville summary judgment.The Ninth Circuit vacated. River Watch sufficiently raised an argument that the hexavalent chromium was “discarded material” that allegedly had migrated through groundwater from the “Wickes site,” where it had been dumped by operators of wood treatment facilities by presenting evidence that when the hexavalent chromium was discharged into the environment after the wood treatment process, it was not serving its intended use as a preservative, and it was not the result of natural wear and tear. Instead, the hexavalent chromium was leftover waste, abandoned and cast aside by the facilities’ operators. There also was a triable issue whether Vacaville was a “past or present transporter” of solid waste. RCRA does not require that the “transporter” of solid waste must also play some role in “discarding” the waste. View "California River Watch v. City of Vacaville" on Justia Law

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The Defendants, Ohana Military Communities, LLC and Forest City Residential Management, began a major housing construction project on Marine Corps Base Hawaii (MCBH) in 2006. MCBH was widely contaminated with pesticides potentially impacting human health. Defendants developed and implemented a Pesticide Soil Management Plan but allegedly never informed residential tenants of the Plan, the decade-long remediation efforts, or known pesticide contamination. Plaintiffs, military servicemember families, filed suit in Hawaii state court alleging 11 different claims under state law. Defendants removed the case to federal court.The Ninth Circuit reversed the denial of the Plaintiffs’ motion to remand. Federal jurisdiction did not exist because, under the Hawaii Admission Act, 73 Stat. 4 (1959), Hawaii had concurrent legislative or political jurisdiction over MCBH, so state law had not been assimilated into federal law. The court rejected an argument that, regardless of any concurrent state jurisdiction, federal jurisdiction exists where federally owned or controlled land is involved, and a substantial federal interest exists. There was no federal officer or agency jurisdiction because there was no causal nexus between the Navy and Ohana under 28 U.S.C. 1442, and Ohana was not a federal agency for purposes of federal jurisdiction. Under the Gunn test, no federal issue was “necessarily raised.” View "Lake v. Ohana Military Communities, LLC" on Justia Law

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Plaintiff filed suit under the Clean Water Act (CWA), alleging that Corona Clay illegally discharged pollutants into the navigable waters of the United States, failed to monitor that discharge as required by its permit, and violated the conditions of the permit by failing to report violations. The district court granted partial summary judgment to defendants and a jury returned a defense verdict on the remaining claims.The Ninth Circuit disagreed with the district court's interpretation of Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 67 (1987), which held that the CWA bars citizen suits alleging only "wholly past" violations of permits, and held that if the required jurisdictional discharge into United States waters has occurred, a CWA citizen suit can be premised on ongoing or reasonably expected monitoring or reporting violations. The panel vacated the district court's judgment and remanded for further proceedings in light of the Supreme Court's intervening decision in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1468 (2020), which held that an offending discharge must reach the "waters of the United States," either through a direct discharge or a "functional equivalent." View "Inland Empire Waterkeeper v. Corona Clay Co." on Justia Law

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Environmental organizations challenged a National Pollutant Discharge Elimination System (NPDES) Permit issued by the EPA for Idaho Concentrated Animal Feeding Operations (CAFOs) under the Clean Water Act. On CAFOs, manure is typically stored in lagoons; waste that leaks from lagoons can reach groundwater that can reach navigable waters. Since the 1970s, the EPA has regulated both CAFO production areas (animal confinement, storage, lagoons) and land-application areas (fields where manure and process wastewater are applied as fertilizer).The Ninth Circuit held that the challenge was timely, rejecting the EPA’s contention that the Permit largely relied on a 2003 Rule. The Permit lacked sufficient monitoring provisions to ensure compliance with the Permit’s “zero discharge” requirements for both production and land-application areas. EPA's discretion in crafting appropriate monitoring requirements for each NPDES permit is not unlimited. The Permit had sufficient monitoring requirements for above-ground discharges from production areas; CAFOs were required to perform daily inspections. The Permit had no monitoring provisions for underground discharges from production areas. While the Permit flatly prohibited discharges from land-application areas during dry weather it had no monitoring provisions, although the record showed that such discharges can occur during irrigation of fertilized CAFO fields. View "Food & Water Watch, Inc. v. United States Environmental Protection Agency" on Justia Law

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The Environmental Protection Agency approved California’s plan for meeting the air quality standard for ozone in the San Joaquin Valley (Clean Air Act, 42 U.S.C. 7408(a), 7409(a)). The plan contains a single contingency measure that will be activated if the other provisions do not achieve reasonable further progress toward meeting the standard.The Ninth Circuit remanded, finding the approval arbitrary after holding that AIR, a California nonprofit corporation with members who reside in the Valley, had Article III standing. AIR’s challenge was ripe for review. When an agency changes its policy, it must display awareness that it is changing position and show that there are good reasons for the new policy. In approving a contingency measure that provided a far lower emissions reduction, the EPA did not acknowledge that it had changed its understanding of what reasonable further progress meant. The EPA may not avoid the need for robust contingency measures by assuming that they will not be needed and did not provide a reasoned explanation for approving the plan. The court rejected AIR’s challenge to the approval of the State’s Enhanced Enforcement Activities Program. The program did not create an emission limitation that was less stringent than one in effect in the state plan so nothing in the Clean Air Act prohibited the state from pursuing it. View "Association of Irritated Residents v. United States Environmental Protection Agency" on Justia Law

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The Bureau of Land Management (BLM) published the 2012 Integrated Action Plan/Environmental Impact Statement (IAP/EIS) for the Petroleum Reserve-Alaska. In 2014, BLM granted ConocoPhillips permission to construct a drill pad in the Greater Moose Tooth (GMT) Unit within the Reserve and issued a GMT supplemental EIS, relying on the 2012 IAP/EIS. In 2018, BLM granted ConocoPhillips permission to construct another GMT drill pad, issuing a second GMT supplemental EIS. In 2018, ConocoPhillips applied to drill in another Unit. BLM published an environmental assessment that purportedly incorporated the 2012 IAP/EIS and the two GMT supplemental EISs. BLM did not issue an EIS but found no new significant impact. ConocoPhillips completed the program in April 2019. In March 2019, objectors sued, citing the National Environmental Policy Act.The Ninth Circuit concluded that the case was moot because neither court could grant any relief. The only lasting physical features of the drilling were capped wells; there was no indication that ConocoPhillips could undo the drilling of those wells. The “capable of repetition, yet evading review” exception to mootness did not apply. Although a case generally will not be moot when the environmental report at issue will be used by the agency in approving a future project, the legal landscape has changed. The Council of Environmental Quality has issued new NEPA regulations. BLM issued a 2020 IAP/EIS for the Reserve, Plaintiffs have not shown a “reasonable expectation” that they will be subjected to an EA tiering to the 2012 IAP/EIS again. View "Native Village of Nuiqsut v. Bureau of Land Management" on Justia Law

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BNSF Railway sought a declaration that the Interstate Commerce Commission Termination Act of 1995 (ICCTA) preempts Clark County, Washington’s permitting process. Clark County asserted that BNSF needed to obtain a permit for a project to upgrade an existing track and construct a second track in the Columbia River Gorge.The Ninth Circuit affirmed summary judgment in favor of BNSF. Under the ICCTA, the Surface Transportation Board has exclusive jurisdiction over rail carriers and track construction. If an apparent conflict exists between the ICCTA and a federal statute, then the courts must strive to harmonize the two laws, giving effect to both if possible. The court rejected an argument that the Columbia River Gorge National Scenic Area Act is such a federal statute. The Gorge Act does not establish national environmental standards but provides a framework for a commission of state-appointed officials to adopt a management plan and implement it through county land use ordinances. The Columbia River Gorge Commission retains final say over the approval and enforcement of the management plan and local county ordinances; enforcement actions may be brought in state court. The Gorge Act is not comparable to federal environmental laws and nothing in the Gorge Act indicates that the local ordinances otherwise have the force and effect of federal law. View "BNSF Railway Co. v. Friends of the Columbia River Gorge" on Justia Law