Ninth Circuit: Center for Biological Diversity, et al. v. Deb Haaland et al.

 A claim of actual water savings elsewhere to offset water taken from a river under the Act must be established with reasonable certainty. An effect is reasonably certain if it is established by clear and substantial information, rather than speculation and conjecture. Reserving certain lands is insufficient absent proof that those lands would otherwise be used for agriculture.

Scientific proof that the species is an opportunistic forager provides sufficient evidence for the determination that its members are likely to migrate after the reduction in water levels. The distance a snake might travel away from a river is fundamentally different than the distance that a snake might travel along a river. Agency's determination of minimal impact to species not arbitrary and capricious. 

CONCURRENCE:

As the agency's determination doesn't meet the simple criterion of "likely," the standard of "reasonable certainty" is dicta.

Center for Biological Diversity, et al. v. Deb Haaland et al.

Fifth Circuit: USA v. Abbott

 Given documentary evidence, treaty claims, and the fact that the Supreme Court has taken judicial notice of the fact, there was no clear error in holding that the Rio Grande is a navigable river in Texas.  Navigability can include ferry traffic across the river.

No clear error in the District Court's holding that the floating obstruction devices tended to interfere with or diminish the navigable aspects of the river.  Structures were sufficiently permanent to come with the scope of the Act.

The constitutional gravity of a state's declaration of invasion and decision to mount an independent defense is inapposite to a motion for a preliminary injunction.  Court appropriately considered policy considerations when balancing equities.

DISSENT:

No showing that this segment of the river was historically navigable. Statutes and treaties precautionary and precatory, respectively.  Use of the river must have been more than sporadic, ineffective, and exceptional.  Out of context quote from the Supreme Court doesn't outweigh Texas geography.  Injunction directs the moving of the barrier, so the diplomatic harms aren't redressable.  Balance of equities favors the state. Allowing certain newspaper articles in under judicial notice was error.

USA v. Abbott

Ninth Circuit: Michael Sackett v. U.S. Environmental Protection Agency

 

Case was not made moot by agency's withdrawal of an enforcement order, where the underlying determination of jurisdiction remained,  since it was not absolutely clear that the agency would not seek to reinstate the order.

Although the government enjoys a presumption of good faith in voluntary cessation, it must demonstrate that its change is entrenched or permanent.

Court did not abuse its discretion in admitting memo postdating the relevant decision, since the memo summarizes the same information that the agency relied upon, rather than being a post hoc justification.

Under Supreme Court precedent, EPA jurisdiction over wetlands requires a significant nexus with navigable waters, rather than the freer standard set out by the plurality in that case, since the first standard is a logical subset of the plurality's rule.

Agency's conculsion that painiffs' wetlands have a sufficient nexus to navigable waters wasn't arbitrary, and was supported by the record.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/19-35469.pdf

Seventh Circuit: Ronald Schmucker v. Johnson Controls, Incorporated

 

Under the statute, a citizen suit claiming that an agency is not following regulations can't look at documents not having legal force to supply missing terms in the regulations and standards.

Court appropriately held that, given existing remediation, there was insufficient imminent and substantial endangerment to the town for the citizen suit to prevail under the statute.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-16/C:20-3432:J:Easterbrook:aut:T:fnOp:N:2748372:S:0

Second Circuit: New York State Dep’t of Env’t Conservation et al. v. Fed. Energy Regul.

 

Given the tolling orders issued by the agency, the sixty-day period for seeking judicial review of agency action wasn't a jurisdictional limit that commenced by operation of law at the point at which agency inaction might have been construed as a denial; the permissive "may" allows the challenger to wait for final action by the agency.

Statute is a mandatory time period for agency action, since it both defines the action and specifies the result of inaction.  Since this time limit is designed to protect the regulatory structure rather than individual private applicants, the agency cannot contract or coordinate with the applicants to extend the time-frame.

Federal agency review might have reached the question of waiver sua sponte or on motion of a third party, so the fact that the party challenging the waiver had been a party to the waiver agreement did not estop the federal agency review from reaching the question.

Agency's policy allowing them to construe a request for expedited action as a request for a waiver determination was a reasonable construction of their statutory powers.

New York State Dep’t of Env’t Conservation et al. v. Fed. Energy Regul.

Fourth Circuit: Mountain Valley Pipeline, LLC v. Sierra Club

 

State environmental approval rulemaking wan't arbitrary and capricious;  the standards are set out in a parallel section of the Code dealing with reservoir protection, and the delay of the approval for the challenged section until the central pipeline had attained the necessary approvals was akin to moving a pipeline to avoid a stream -- a temporal rather than spatial accommodation.

As the state's clean water laws flow from the federal laws, state agency's consideration of function and use did not displace federal review.

Explanation that didn't cite the relevant standard sufficed, because it tracked the language of the relevant standard.

On remand, state must explain incongruities in finding and why the department opted for a temporary denial rather than a provisional approval.

Mountain Valley Pipeline, LLC v. Sierra Club 

Fifth Circuit: Sierra Club v. DOI

 

Species mortality limit was not arbitrary and capricious, since the additional discussions mentioned in the agreement are superfluous to the hard take limits.

Agency's determination of the several effects of other projects and the cumulative effects of all projects in the designated region was not arbitrary and capricious.

Sierra Club v. DOI

DC Circuit: State of New Jersey v. EPA

 

Court has independent obligation to assure itself that parties have standing where the question is raised by an intervenor.

Although the Act contemplates state regulations and statutes that go further than its requirements, a state's claim that inadequate record-keeping demands will hamper enforcement is sufficient for standing, as the possibility of state action to remove the harm doesn't obviate the harm for purposes of standing, and additionally, and subsequent changes in state enforcement would have to be approved by the agency.  Possibility of future harms from enforcement in other states is also sufficient for standing.

Rulemaking sufficiently explained its enforcement trigger levels and adequately addressed enforcement concerns.

Dissent:

Harm too attenuated for standing -- one theory requires an out of state polluter who applied under the permit scheme and pollutes undetetected, and the other theory relies on speculative noncompliance within the state.

State of New Jersey v. EPA

Ninth Circuit: Arconic, Inc. v. APC Investment Co.

 

Where a statute creates a right to seek contribution to an environmental settlement or judgment but provides that such contribution must be sought within three years of the entry of judgment, seeking contributions from de minimis co-polluters that indemnify them against any future claims does not start the clock to seek other contributions within a prospective limitations period triggered by a subsequent claim against the same site.  A right to contribution can't arise until the judgment creating the liability is entered, and this division of eligible costs serves the purposes of the law

Judicial estoppel similarly does not preclude seeking a second round of contributions for a second judgment, as there's no inconsistency.

Arconic, Inc. v. APC Investment Co.

DC Circuit: State of New York v. EPA

Agency denial of state petition was arbitrary and capricious, as it didn't state which of four criteria had not been met, or how many of the four criteria must be met to substantiate the petition.  Past judicial approval of plan did not insulate it from suit, as it indicated that it was a first step.

Agency plan insufficient, as it relies on a compliance cutoff date after a date previously set by another statute; agency must permit claims that implicate a multi-state area.

Concur: Although claim waived by agency, state's petition impermissibly seeks to regulate single sources as opposed to regulations addressing individual states.

State of New York v. EPA

Sixth Circuit: Tenn. Clean Water Network, et al. v. TVA

As the Act requires a point source, not seeping groundwater or permeable hydrological network, the pollution here is outside of its scope.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0214p-06.pdf

Sixth Circuit: Ky. Waterways Alliance v. Kentucky Util. Co.

Act does not cover groundwater pollution or complex hydrological networks; the precedent suggesting this in fact discusses interconnected larger waters, and federalism and practical enforcement concerns dictate a narrower reading of the regulated bodies of water.

Prudential abstention is not available to the court where a citizen cause of action is directly created by a statute that makes use of factors that would suggest abstention.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0213p-06.pdf

Ninth Circuit: Tin Cup LLC v. Corps of Engineers

Where a statutory directive occurs within an appropriations bill, the presumption is that it binds only for the period of the appropriation; this can be overcome by sufficient indications of futurity such as "hereafter."  Language in the imperative such as "will" and "shall" is insufficient.

Concur in J: In addition to the command in the imperative, the directive had a closing point, which meant that it wouldn't automatically sunset.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/21/17-35889.pdf

Fourth Circuit: Sierra Club v. VEPCO

While a power plant can be liable under the Act for discharging pollutants into navigable waters via hydrologically connected groundwater, the pollution in this instance was from the landfill and settling pools connected with the site, which were not a "point source" covered by the Act.

Parallel provisions in state permit should be construed reasonably and in a manner congruent with the federal regulations.

http://www.ca4.uscourts.gov/opinions/171895.P.pdf

Third Circuit: Trinity Industries Inc v. Greenlease Holding Co

Risk did not pass back to indemnified party at the end of the period of indemnification, but should be allocated according to law and the other provisions of the agreement.

Cleanup costs, although more expensive due to being prompted by consent order, had sufficient nexus to the environmental response and were therefore reasonable.

Cost allocation methodology was improper, as it did not consider costs of individual remediations.

Court did not abuse discretion in attributing lead contamination to historic factors.

Arbitrary award  percentages used in balancing of equities were not supported by specifics in the record.

Corporate entities distinct.  Public policy requires presumption for the corporate form.

http://www2.ca3.uscourts.gov/opinarch/161994p.pdf

Third Circuit: Township of Bordentown v. FERC

Issuance of a permit conditioned on obtaining of second state permit did not offend the Act, as the conditional permit did not allow any discharges into the waters of the United States.

As each project is viable without the other, agency was not arbitrary or capricious in considering them separately.

Deference to agency determination that nonjurisdictional utility project was not sufficiently connected to jurisdictional projects to warrant formal review.

Agency's determination of minimal impacts appropriately resolved claim of cumulative impacts.

etc, etc. ...

Original federal appellate jurisdiction for violations of the act does not displace state administrative remedies in the permitting process.

http://www2.ca3.uscourts.gov/opinarch/171047p.pdf

Fourth Circuit: Sierra Club v. National Park Service

As claim arises under 2005 amendment, state statute of limitations isn't borrowed; general four-year federal rule applies.

Agency cannot claim lack of time as a basis for holding that numerical take limits are impractical.

Vague and unenforceable take limits were arbitrary and capricious.

http://www.ca4.uscourts.gov/opinions/181082.P.pdf

Fifth Circuit: Shudde Fath, et al v. Texas Dept. of Transportation

Regulation requiring a reasonably unitary environmental review for road-building projects incorporates an implicit requirement of sufficient length for discrete segments in its requirement that the segments have distinct terminii; a separate review of segment length is unnecessary.

A cumulative environmental review is unnecessary when the construction segments are de minimis.

http://www.ca5.uscourts.gov/opinions/pub/17/17-50683-CV0.pdf

DC Circuit: Delaware Riverkeeper Network v. FERC

Implied right of action for riparian denizens under the statute to challenge power plant construction.

Clean air, water and environment is not property or liberty for which due process of law would be required before deprivation.

Funding structure of the commission does not, on its face, violate the constitution; review and tolling procedures are within the statute.

https://www.cadc.uscourts.gov/internet/opinions.nsf/2FEE744A69F0676F852582C600521EA8/$file/17-5084-1739812.pdf

First Circuit: City of Taunton v. EPA

When plaintiff claims extrinsic evidence was the basis for agency action, it is still inappropriate to include extrinsic evidence in the record for review, as the degree of support for the agency decision should be apparent from the record as it stands.

Agency did not act arbitrarily and capriciously in supplementing the administrative record following notice and comment beyond the initial published decision calculus and not subsequently reopening the comment process.  Comment periods, by their nature, bring new concerns and raise new points.

Physical access to the relevant documents during the comment period sufficed; plaintiff had no right to receive them in response to a subsequent request.

Agency was justified in using tentative scientific conclusions in the absence of proof to the contrary; causation need not be absolute -- a reasonable possibility of harm is sufficient.

Absent specific proof to the contrary, deference to agency methodology and data selection.

http://media.ca1.uscourts.gov/pdf.opinions/16-2280P-01A.pdf