Articles Posted in Environmental Law

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Petitioners challenged the Board's decision certifying that it had reasonable assurances that activities related to the construction of a natural gas pipeline would not degrade the state's water resources. The Fourth Circuit denied the petition for review, holding that the Board's certification under section 401 of the Clean Water Act was not arbitrary and capricious. The court held that the decision to reopen the comment period and not to conduct a combined effect analysis did not render the state agencies' issuance of a section 401 certification arbitrary and capricious. The court also held that the state agencies' reasonable assurance determination was not arbitrary and capricious because they relied on existing Virginia water quality standards and regulations to effectively address concerns regarding water quality deterioration, and the state agencies' treatment of karst terrain was not arbitrary or capricious because of the conditions imposed on the certification. View "Appalachian Voices v. State Water Control Board" on Justia Law

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The Fourth Circuit granted a petition for review of the Forest Service's Special Use Permit and Record of Decision authorizing Atlantic, the project developer, to construct the Atlantic Coast Pipeline through parts of the George Washington and Monongahela National Forests and granting a right of way across the Appalachian National Scenic Trail. The court held that the Forest Service's decisions in its 2012 Planning Rule and the 2016 Amendment to the 2012 Planning Rule violated the National Forest Management Act and the court remanded for further proceedings. The court also held that the Forest Service violated the National Environmental Policy Act, and that the Forest Service lacked statutory authority pursuant to the Mineral Leasing Act to grant a pipeline right of way across the Appalachian National Scenic Trail. The court concluded that the Forest Service abdicated its responsibility to preserve national forest resources, and noted that the Forest Service's serious environmental concerns were suddenly, and mysteriously, assuaged in time to meet a private pipeline company's deadlines. View "Cowpasture River Preservation Association v. Forest Service" on Justia Law

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The 42-inch diameter natural gas Mountain Valley Pipeline proposes to run 304 miles through Virginia and West Virginia, In the U.S. Army Corps of Engineers’ Huntington District, the Pipeline and related roads will cross 591 federal water bodies, including four major rivers three of which are navigable-in-fact rivers regulated by the Rivers and Harbors Act, 33 U.S.C. 403. Because construction will involve the discharge of fill material into federal waters, the Clean Water Act requires clearance from the Corps, 33 U.S.C. 1344(a). The Act provides for individual permits or “interested parties can try to fit their proposed activity within the scope of an existing general permit,” in this case Clean Water Act Nationwide Permit (NWP) 12, “which acts as a standing authorization for developers to undertake an entire category of activities deemed to create only minimal environmental impact.” The Corps verified that the Pipeline can proceed under NWP 12 rather than an individual permit. The Fourth Circuit vacated, holding that the Corps lacked statutory authority to substitute its own special condition for a different special condition imposed by West Virginia as part of its certification of NWP 12. Without completion of the notice-and-comment procedures required by the Act, a state cannot waive a special condition previously imposed as part of its certification of a nationwide permit. West Virginia did not follow federally-mandated notice-and-comment procedures in waiving another special condition imposed as part of its certification of NWP 12. View "Sierra Club v. United States Army Corps of Engineers" on Justia Law

Posted in: Environmental Law

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Sierra Club filed suit against Dominion under the citizen-suit provision of the Clean Water Act, alleging that Dominion was violating 33 U.S.C. 1311(a), which prohibits the unauthorized "discharge of any pollutant" into navigable waters. The Fourth Circuit held that the landfill and settling ponds on the Chesapeake site of a coal-fired power plant did not constitute "point sources" as that term was defined in the Clean Water Act, and thus reversed the district court's ruling that Dominion was liable under section 1311(a). The court held, however, that Dominion's discharge permit did not regulate the groundwater contamination at issue and affirmed as to those claims. View "Sierra Club v. Virginia Electric & Power Co." on Justia Law

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The Fourth Circuit held that agency decisions that provided necessary approvals for the Atlantic Coast Pipeline (ACP) were arbitrary and capricious. In Case No. 18-1083, petitioners challenged the Incidental Take Statement (ITS) authorizing the pipeline to take five species listed as threatened or endangered. The court held that, although FWS was not required to set a numeric limit, it can only use a habitat surrogate if it demonstrates a causal link between the species and the delineated habitat, shows that setting a numerical limit was not practical, and set a clear standard for determining when incidental take is exceeded. In this case, FWS failed some or all of these requirements for all five challenged species, and thus the agency's take limits were not enforceable. In Case No. 18-1082, petitioners argued that NPS lacked the authority to grant a right-of-way to a gas pipeline and that doing so violated the statutory mandate that agency decisions not be inconsistent with the Parkway's conservation purpose. The court assumed that NPS had the requisite statutory authority but held that NPS did not explain how the pipeline crossing was not inconsistent with the purposes of the Parkway and the overall National Park System. View "Sierra Club v. National Park Service" on Justia Law

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The Fourth Circuit denied a petition for review of Virginia's certification under Section 401 of the Clean Water Act that it had reasonable assurance that certain activities regarding the construction of a natural gas pipeline would not degrade the state's water. As a preliminary matter, the court held that petitioners had standing to assert the claims contained in their petition for review. On the merits, the court held that the state agencies did not act arbitrarily and capriciously in issuing the December 401 Certification. The court held that the DEQ had a sufficient basis to find reasonable assurance that the types of measures, restrictions, and programs in place to prevent excess sediment from entering state waters would be effective to satisfy the requirements of Virginia's antidegradation policy. The court also held that the state agencies' segmented approach to the certification, even if unorthodox, was not arbitrary and capricious. View "Sierra Club v. State Water Control Board" on Justia Law

Posted in: Environmental Law

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The Fourth Circuit granted petitions for review of the BLM's decision granting a right of way through federal land for construction and operation of a pipeline proposed by MVP, and the Forest Service's decision to amend the Jefferson National Forest Land Resource Management Plan to accommodate the right of way and pipeline construction. The court held that the Forest Service violated the National Environmental Policy Act (NEPA) by adopting an environmental impact statement (EIS) without undertaking the required independent review of the EIS's sedimentation analysis. Because the Forest Service acted arbitrarily and capriciously, the court remanded for further explanation. The court deferred to the agencies conclusions on the issue of forest effects and rejected petitioners' claims as to the Draft EIS. However, in regard to petitioners' claims under the National Forest Management Act, the court held that the requirements in the 2012 Planning Rule were directly related to the instant Forest Service amendments to the Jefferson Forest Plan and the Forest Service acted arbitrarily and capriciously in concluding otherwise. Therefore, the court remanded to the Forest Service for proper application of the Planning Rule soil and riparian requirements to the Forest Plan amendment. Finally, the court held that the BLM failed to acknowledge its obligations under the Mineral Leasing Act (MLA) and remanded for further proceedings. View "Sierra Club v. USFS" on Justia Law

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Plaintiffs filed suit alleging that the EPA failed to perform its nondiscretionary duty under the Clean Water Act to promulgate pollutant limits for biologically impaired waters in West Virginia. The court held that plaintiffs have standing to bring the claim, but reversed the district court's grant of summary judgment for plaintiffs. In this case, because West Virginia has demonstrated that it is making — and will continue to make — good-faith efforts to comply with SB 562, and because West Virginia has a credible plan in concert with the EPA to produce ionic toxicity total maximum daily loads, if the constructive submission doctrine were to apply, it would not be satisfied. View "Ohio Valley Environmental Coalition, Inc. v. Pruitt" on Justia Law

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In 2014, several hundred thousand gallons of gasoline spilled from a rupture in an underground pipeline near Belton, South Carolina. The gasoline seeped into nearby waterways. Following a cleanup, at least 160,000 gallons allegedly remained unrecovered. Plaintiffs allege that the gasoline has continued to travel a distance of 1000 feet or less from the pipeline to Browns Creek and Cupboard Creek, which are tributaries of the Savannah River, and their adjacent wetlands Conservation groups brought a citizen suit under the Clean Water Act, 33 U.S.C. 1251–1387, alleging violations by polluting "navigable waters of the United States" without a permit and seeking relief to remediate the ongoing pollution. The district court held that it lacked subject matter jurisdiction because the pipeline has been repaired and the pollutants currently pass through groundwater to reach “navigable waters.” The Fourth Circuit vacated. Citizens may bring suit under 33 U.S.C. 1365(a) for discharges of pollutants that derive from a “point source,” defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or] container” and continue to be “added” to navigable waters. Plaintiffs have stated a valid claim for a discharge under the Act. View "Upstate Forever v. Kinder Morgan Energy Partners, L.P." on Justia Law

Posted in: Environmental Law

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Plaintiffs, members of the Eastern Band of Cherokee Indians, visited the Cherokee Bear Zoo. Plaintiffs observed bear pits containing four bears, identified by signs as grizzly bears. The pits were compact and made entirely of concrete. Each pit had a small pool of water, but neither had any vegetation nor any shade. Plaintiffs observed the bears in listless form, pacing and begging for food. Patrons fed the bears apples and dry bread sold by the Zoo. Plaintiffs brought a citizen suit, alleging that the Zoo’s practice of keeping the bears in the described living conditions constituted a “tak[ing]” of and possession of a taken threatened species under the Endangered Species Act, 16 U.S.C. 1538(a)(1). Plaintiffs’ argued that the Zoo’s conduct is a form of “harass[ment]” of, and “harm” to, its bears. The Fourth Circuit affirmed the district court’s rulings in favor of Plaintiffs on the issues of standing and the bears’ status as protected but vacated the court’s ruling against Plaintiffs on the issue of whether the Zoo is committing an unlawful taking. To establish harassment, Plaintiffs must prove that the Zoo’s husbandry practices fall within 50 C.F.R. 17.3’s definition of harass and that those practices do not fall within the enumerated exclusion. The district court did not reach the first issue and improperly declined to ask whether the Zoo’s animal husbandry practices are “generally accepted.” View "Hill v. Coggins" on Justia Law