Environmental Law Prof Blog

Ninth Circuit Upholds Clean Air Act Conformity Determination for L.A. Expressway

On October 30, the Ninth Circuit (Noonan, Wardlaw, Fisher) issued a decision in NRDC v. Department of Transportation, No. 12-56467.  This case arose out of approvals by the U.S. and California Departments of Transportation of an elevated expressway connecting the Ports of Los Angeles and Long Beach to the I-405 Freeway.  The expressway is intended to ease traffic congestion and thereby reduce pollutant emissions from port traffic.  The Clean Air Act prohibits federal agencies from supporting or approving activities that do not conform to the applicable State Implementation Plan.  42 U.S.C. § 7506(c)(1)(B).  EPA regulations implementing this provision require a “hot-spot analysis,” which looks for whether a project will lead to localized pollutant concentrations that violate air quality standards.  40 C.F.R. § 93.101.  As part of their process for approving the expressway project at issue in this case, the agencies conducted a hot-spot analysis, which they based on data from a receptor five miles from the project. 

NRDC and two other environmental groups—East Yard Communities for Environmental Justice and Coalition for a Safe Environment—sued, contending that the agencies’ analysis was faulty, and violated the Clean Air Act and NEPA.  The Ninth Circuit rejected NRDC’s argument that the Clean Air Act’s conformity provision, which refers to a project’s impacts on air quality levels in “any area,” required the agencies to evaluate particulate matter concentrations in areas directly adjacent to the project.  Instead, the court held, the term “any area” is ambiguous, and the agencies did not err by interpreting it to mean an area broader than the immediate vicinity of the project.  As to NRDC’s NEPA claim, the court held that the Environmental Impact Statement (EIS) appropriately relied on the particulate matter standard in place at the time of the Conformity Determination, rather than a new standard that went into effect one year later, and discussed the new standard.  The EIS also adequately disclosed the likely health impacts of the expressway, including an acknowledgement that similar transportation projects usually increase particulate matter concentrations in areas immediately adjacent to the project.

—Todd Aagaard

 

Second Annual ELI-Stetson Wetlands Workshop: Wetlands Enforcement: Mining, Mitigation, and More

Cosponsored by the Environmental Law Institute and Stetson University College of Law

 November 13, 2014

11:00 am - 6:00 pm

Stetson University College of Law
Gulf Port, FL

From phosphate mining to oil and gas exploration, these activities can be both land- and water-intensive uses that can impact Florida’s remaining wetlands.  This workshop will explore the wetland impacts from various types of mining operations and look at how enforcing wetland permits and mitigation is a crucial component to protecting Florida wetlands.  More information is available here.

D.C. Circuit Upholds OSHA Hazard Communication Standard’s Regulation of Combustible Grain Dust

On October 24, the D.C. Circuit (Henderson, Rogers, Griffith) issued a decision in National Oilseed Processors Association v. OSHA, No. 12-1228.  In 2012, OSHA revised its Hazard Communication Standard, 29 C.F.R. § 1910.1200, which requires employers to communicate with their employees regarding chemical hazards in the workplace.  Among other things, the 2012 Standard designates combustible dust as a hazardous chemical subject to regulation under the Standard.  A group of businesses that handle and process grain and other agricultural products filed a petition for review challenging OSHA’s rule as it applies to combustible grain dust.  The court of appeals denied the petition, holding (a) that OSHA had provided adequate notice in its proposed rule that the Standard would cover combustible grain dust; and (b) that OSHA adequately defined combustible dust in the Standard.

—Todd Aagaard

Tenth Circuit Denies Petition for Review Challenging EPA’s Approval of Regional Haze Program for Colorado Plateau

On October 21, the Tenth Circuit (Bacharach, Seymour, Murphy) issued a decision in WildEarth Guardians v. EPA, No. 12-9596.  Five environmental organizations filed a petition for review challenging an EPA rule approving a regional cap-and-trade program to improve visibility over the Colorado Plateau by regulating sulfur dioxide emissions.  The Clean Air Act’s “regional haze” program requires major existing sources that contribute to visibility impairment to install and operate “best available retrofit technology” (BART). 42 U.S.C. § 7491(b)(2)(A).  EPA regulations allow states to employ an alternative, cap-and-trade regulatory program, providing that it is at least as effective as BART in improving visibility.  40 C.F.R. § 51.309.  EPA approved such an alternative program for the Colorado Plateau, on the ground that the program would yield better results than BART because it covered sources that would not have been subject to BART; encompassed emissions from new sources which would not have been subject to BART; and encouraged sources to expedite equipment upgrades and to operate below full capacity.  The petitioners raised a series of fact-intensive arguments against EPA’s approval of the Colorado Plateau program, arguing that it does not achieve greater reasonable progress than implementation of BART; will not achieve reasonable progress toward eliminating visibility impairment; and failed to analyze emissions from a particular New Mexico coal plant.  The Tenth Circuit rejected each of the petitioners’ arguments.  Some specific points were waived.  The court dismissed the remainder based on a detailed examination of EPA’s reasoning. 

—Todd Aagaard

Eleventh Circuit Holds that Legislative Amendment to North Carolina Statute of Repose for Groundwater Contamination Claims Cannot Apply Retroactively

On October 14, the Eleventh Circuit (Tjoflat, Wilson, Bucklew (by designation)) issued a decision in Bryant v. United States, No. 12-15424.  This appeal arose out of multi-district litigation in which plaintiffs sued the United States under the Federal Tort Claims Act, alleging that they experienced adverse health effects from toxic substances in the drinking water at Camp Lejeune, North Carolina.  The United States moved to dismiss the case based on North Carolina’s ten-year statute of repose.  On certified interlocutory appeal under 28 U.S.C. § 1292(b), the Eleventh Circuit addressed (a) whether CERCLA preempts the North Carolina statute of repose, and (b) whether the North Carolina statute of repose contains an exception for latent diseases.  The first question was easy; during the pendency of the appeal, the Supreme Court decided CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014), which held that CERCLA does not preempt North Carolina's statute of repose.  As to the second question, the Eleventh Circuit held that, at the time the plaintiffs brought their suit, the North Carolina statute of repose contained no exception for latent diseases.  After the Supreme Court decided Waldburger, however, the North Carolina legislature enacted an exception to the statute of repose that applies to tort claims based on groundwater contamination and directed that the exception should apply to actions filed, arising, or pending on the effective date of the exception.  N.C. Gen. Stat. Ann. § 130A–26.3.8.  On its face, therefore, the 2014 legislation would validate the plaintiffs’ claims.  The Eleventh Circuit held, however, that the 2014 legislation could not apply retroactively without depriving the United States of vested rights.  Despite language in the 2014 legislation that characterized it as “clarifying” the statute of repose, the court of appeals held that the legislation enacted a new exception that did not merely clarify ambiguities.

—Todd Aagaard

D.C. Circuit Upholds Nuclear Regulatory Commission’s Transfer of Regulatory Authority under Atomic Energy Act to State of New Jersey

On October 14, the D.C. Circuit (Garland, Srinivasan, Sentelle) issued a decision in Shieldalloy Metallurgical Corp. v. Nuclear Regulatory Commission, No. 13-1259.  This case is the latest chapter in the lengthy history of a dispute between Shieldalloy and regulators over radioactive byproducts at Shieldalloy’s manufacturing facility in Newfield, New Jersey.  By the time Shieldalloy stopped its operations at the facility in 1998, it had accumulated over 65 thousand cubic meters of radioactive materials at the site, stored in uncovered waste piles.  The Nuclear Regulatory Commission (NRC) regulates disposal of radioactive waste under the Atomic Energy Act.  Shieldalloy repeatedly asked the NRC for permission to dispose of its radioactive materials on site, with limitations on future use of the site, but the agency refused.  Meanwhile, the State of New Jersey asked the NRC to transfer regulatory authority under the Atomic Energy Act to the State.  Shieldalloy apparently worries that the State will regulate its site more stringently than the NRC and has opposed the transfer.  Twice the NRC granted the transfer, only to have Shieldalloy challenge the NRC’s decision and the D.C. Circuit set the transfer aside.  In 2013, the NRC granted the transfer for a third time, and this one was the charm.  Today, the D.C. Circuit held that New Jersey’s regulatory program approved by the NRC adequately protects public health and safety and is consistent with the NRC’s own regulatory regime, including an option to decommission a site with restricted future use but also a preference for removal of radioactive materials to allow unrestricted future use.

—Todd Aagaard

Ninth Circuit Affirms Park Service’s Authority to Ban Hovercrafts on Alaskan River

On October 6, the Ninth Circuit (Farris, Nelson, Nguyen) issued a decision in Sturgeon v. Masica, No. 13-36165.  Plaintiff John Sturgeon used a personal hovercraft on moose hunting trips on the Nation River, part of which lies within the Yukon–Charley Rivers National Preserve in Alaska.  A National Park Service regulation bans hovercrafts on waters located within the boundaries of the National Park System.  36 C.F.R. § 2.17(e).  Sturgeon brought suit to challenge the regulation, arguing that § 103(c) of the Alaska National Interest Lands Conservation Act (“ANILCA”) precludes the Park Service from regulating use of the Nation River, which he claimed had been conveyed to the State of Alaska.  ANILCA § 103(c), 16 U.S.C. § 3103(c), provides that no Alaskan lands which have been conveyed “to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within [conservation system units].”  The Ninth Circuit, after holding that Sturgeon had standing to bring his claim, held that the Park Service’s regulation against hovercrafts applied to all lands, whether federally owned or not, within park boundaries and therefore was not a regulation “applicable solely to public lands” within the meaning of ANILCA § 103(c).  Accordingly, regardless whether the lands underlying the Nation River had been conveyed to the State, ANILCA § 103(c) did not preclude the hovercraft regulation.

—Todd Aagaard

FERC Authorizes Export of Natural Gas Through Cove Point LNG Terminal in Maryland

On September 29, FERC issued an order authorizing Dominion Cove Point LNG, a subsidiary of Dominion Resources, to site, construct, and operate facilities for the liquefaction and export of domestically produced natural gas at Dominion’s existing liquefied natural gas (LNG) import terminal in Calvert County, Maryland, and to construct and operate related gas transportation facilities in northern Virginia.  The Cove Point LNG Terminal was originally authorized in 1972 as an import terminal.  The recent surge in domestic natural gas production has created market conditions whereby Dominion has determined it is more profitable to export LNG through Cove Point than to use the facility for imports.  FERC issued its order pursuant to its authority under Natural Gas Act § 3, 15 U.S.C. § 717b (requiring FERC authorization to export natural gas), and Natural Gas Act § 7(c), 15 U.S.C. § 717f (requiring FERC authorization to extend or improve natural gas transportation facilities).

The Cove Point project is significant in several respects.  First, it is another manifestation of the remarkable change in the world market for natural gas, with increases in domestic production leading to steep decreases in natural gas imports into the United States.  The United States is projected to become a net natural gas exporter by 2020.  The conversion of Cove Point from LNG imports to exports is not unique.  FERC has previously approved three other export projects, the Maritime Administration has approved three others, and thirteen more export terminals have been proposed.  The New York Times recently published an article about plans to convert the Golden Pass LNG Import Terminal in Texas to an export facility.

Second, there is considerable controversy regarding the effects of increasing natural gas exports on domestic natural gas prices.  In 2012, the Energy Information Administration projected that gas exports would increase average electricity prices by 2-3%.  Senator Ron Wyden (D-Ore.) and others have expressed concern that the EIA’s projects are unrealistic and that exports may have adverse effects on the U.S. economy.  Proponents of natural gas exports acknowledge some modest effect on domestic natural gas prices (along the lines of EIA’s projections) but emphasize the net macroeconomic benefits of increased exports.

Third, environmental groups worry that exports will further increase natural gas production, leading to increased fossil fuel production (with resulting climate and other environmental impacts).  The Sierra Club’s Beyond Natural Gas Campaign, Chesapeake Climate Action Foundation, Earthjustice, and Bill McKibben all have vocally opposed the Cove Point Liquefaction Project on environmental grounds.  FERC’s Environmental Assessment for the Cove Point Liquefaction Project did not analyze how exports from Cove Point would affect the development of upstream natural gas production, transportation, and distribution facilities because of the uncertainties of such development.  Environmentalists have been particularly critical of this omission.  The controversy raises both factual and legal questions.  Factually, will LNG exports have a significant impact on domestic gas production?  Legally, if there is an impact, to what extent are agencies that authorize LNG exports obligated to consider the environmental impacts of such production?  Across a range of areas including but not limited to energy projects, environmentalists have long pushed agencies to consider broader, systemic impacts of their decisions.  Agencies have generally resisted, focusing on more immediate impacts that involve less uncertainty.  The extent to which NEPA documents are a useful and appropriate tool for assessing systemic impacts will continue to generate controversy in the LNG export issue and other environmental issues for quite some time.

—Todd Aagaard

Federal District Court Upholds Obama Administration's Grand Canyon Uranium Mining Withdrawal

On Tuesday, Arizona federal district court judge David G. Campbell dismissed claims by several mining associations, Utah and Arizona counties, and the Nuclear Energy Institute, seeking to set aside the Obama Administration’s January 9, 2012 withdrawal of over one million acres of federal lands surrounding Grand Canyon National Park from uranium mining.  This decision  protects the Colorado River watershed and several Havasupai sacred sites from the direct and indirect impacts of uranium mining by preventing the development of thousands of claims that have been located on federal lands near the park since the latest spike in uranium prices in 2004.  The Center for Biological Diversity, along with the Grand Canyon Trust, the Havasupai Tribe, the National Parks Conservation Association, and the Sierra Club all intervened in support of Interior’s withdrawal.

In their appeal to the district court, the plaintiffs, American Exploration & Mining Association, Gregory Yount, the Nuclear Energy Institute, the National Mining Association, the Arizona Utah Local Economic Coalition, and Quaterra Resources, Inc., raised claims under NEPA, FLPMA, and the Establishment Clause. First, they argued that BLM violated NEPA by failing to consult with local governments, and by failing to address “scientific controversies” in the final Environmental Impact Statement.  Noting that the BLM had given two of the counties cooperating agency status during the EIS process, and that the agency gave ample opportunity for the plaintiffs to appear and consult at “two public scoping meetings, five meetings with cooperating agencies, and three meetings or hearings with the [counties] specifically,” the court ruled that BLM had provided more than adequate opportunity to consult.   Moreover, BLM had included the results of several county studies on the proposed withdrawal in both the draft EIS and the final EIS, and had reconciled any scientific discrepancies regarding location and quantity of uranium reserves consistent with NEPA’s requirements. 

Second, the plaintiffs argued that the BLM’s withdrawal was for an “invalid purpose” under FLPMA because the record did not support the BLM’s stated reasons for the withdrawal, which included uncertainty regarding the impacts of uranium mining on water resources.  Also, they argued that BLM had unlawfully considered the impact of mining activity on cultural and tribal resources, the need for further study on wildlife impacts, and the existence of valid claims within the withdrawal area not affected by the action. The court disagreed, finding that although there was some uncertainty in the record about how mining might impact water, wildlife, and other resources, “DOI decided to err on the side of protecting the environment,” satisfied the requirements of FLPMA section 204.  This precautionary approach was supported by the NEPA Record of Decision, which showed uranium and arsenic in soil and water samples taken in the vicinity of several active mining sites, as well as trace amounts of iron, lead, manganese, radium, sulfate and uranium.

The plaintiffs also argued that the final EIS undervalued the uranium deposits in the withdrawn sections because it included valuations based on a 1990 USGS study, which violated FLPMA’s requirement that a withdrawal “fully disclose the value of minerals to be closed to development.”  The court disagreed, holding that it was acceptable for the agency to engage USGS experts to adjust the 1990 predictions, without conducting on-the-ground surveys of the million acres proposed to be withdrawn.  Noting that “nothing in FLPMA or its implementing regulations requires that the estimate be exact,” the court deferred to the agency’s determination of the most accurate scientific estimates regarding in-ground uranium reserves.

Third, one of the plaintiffs argued that the cultural resource justification for the withdrawal violated the Establishment Clause of the First Amendment because it elevated Havasupai religious concerns above other, secular interests. Applying the test from Lemon v. Kurtzman, the court held that the purpose of the withdrawal was secular, and there was “no record evidence” demonstrating any religious purpose.  In response to an argument that the withdrawal process gives Native American governments “veto power” to prohibit certain land uses and “creates a preference for American Indian religious activities” on federal lands, the court held that the withdrawal did not primarily affect Havasupai religious interests, but instead, primarily affected uranium mineral resources.  Also, the court found that nothing in the withdrawal process elevated Native American influence over the federal government’s management of the area in question above other interests. 

In sum, this decision supports a precautionary approach to mineral withdrawals.  It affirms the agency’s choice, “when faced with uncertainty due to a lack of definitive information, and a low risk of significant environmental harm,” to temporarily withdraw land from mineral entry before conducting a NEPA review.  Although this may run counter to the general policy underlying NEPA, in this instance, BLM’s action prevented the development of thousands of uranium claims until the agency could fully study the impacts of those claims and determine whether to make a full withdrawal.  As the district court noted, if the BLM waited to act until after the NEPA review process was complete, the claims may have become vested and at that point, it would have been too late to protect the Colorado River watershed and the Havasupai sacred sites. 

- Hillary M. Hoffmann