This Blog Post was authored by Omar Khodor, a summer associate.

On June 23, 2021, the Ninth Circuit, in directing the lower court to dismiss a citizen’s suit claim under the Clean Water Act (“CWA”), held that the CWA did not abrogate tribal sovereign immunity. Deschutes River All. v. Portland Gen. Elec. Co., No. 18-35867, 2021 WL 2559477 (9th Cir. June 23, 2021). To abrogate a Tribe’s sovereign immunity, the Ninth Circuit explained that a statute must convey “perfect confidence” that Congress intended to abrogate tribal sovereign immunity. Id. at 14. It further found that the CWA does not unequivocally do so because Section 1365 – a section explicitly dealing with United States and governmental sovereign immunity – does not mention tribal sovereign immunity. Id. at 15-16. Rather, Section 1365 states that “any citizen may commence a civil action on his own behalf . . . against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution).” 33 U.S.C. § 1365. Although Section 1362(5) of the CWA goes on to define “any person” as a municipality (among other things), and Section 1362(4) further defines a “municipality” as including an “Indian Tribe or an authorized Indian Tribal organization,” the court determined that Congress had not clearly intended to abrogate tribal sovereign immunity because Tribes are not included in Section 1365. Deschutes River All., 2021 WL 2559477 at *15-16. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Energy, Federal Procedure, Ninth Circuit, Procedure, Sovereign Immunity, Tribal Lands

This Blog Post was authored by Brielle Brown, a summer associate.  Originally published on July 7, 2021, it has been updated to reflect that after a rehearing, the decision was affirmed on July 20, 2021.

A three-judge panel of the Third Circuit held on June 21, 2021, that air emission exceedances governed by a state air permit and duly reported to state or local authorities pursuant to the permit need not be reported again to the United States Environmental Protection Agency (“EPA”) pursuant to the Section 103 reporting requirements of the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Clean Air Council v. U.S. Steel Corp., 2 F.4^th 112 (3d Cir. 2021); 42 U.S.C. § 9603. The decision was reheard and affirmed on July 20, 2021. Clean Air Council v. U.S. Steel Corp., No. 20-2215, -- F.4^th --, 2021 WL 3045927 (3d Cir., July 20, 2021). The court’s reasoning came down to an interpretation of CERCLA that the phrase “subject to” was intended to mean “governed or affected by” rather than “obedient to.” Id. at *3–4. Thus, air emissions that violate relevant Clean Air Act permits are nevertheless “subject to” that permit and therefore exempt from CERCLA’s reporting requirement. Id. Read More »

Share | Email| Comments|  Topics: Air, CERCLA, Chevron Deference, Clean Air Act, Emissions, Pennsylvania, Permits, Superfund, Third Circuit

On Tuesday, June 29, 2021, the United States Supreme Court reversed the Third Circuit and held that Section 717f(h) of the Natural Gas Act authorizes Federal Energy Regulatory Commission (FERC) certificate holders to “condemn all necessary rights-of-way, including land in which the State holds an interest.” See PennEast Pipeline Co., LLC v. New Jersey, Slip Op. No. 19-1039, (June 29, 2021). This holding is consistent with history and precedent regarding the superior power of federal eminent domain. Read More »

Share | Email| Comments|  Topics: Condemnation, Eminent Domain, Federal Energy Regulatory Commission, FERC, Marcellus Shale, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pipelines, Public Lands, Sovereign Immunity, Supreme Court, Takings, Takings Clause, Third Circuit, United States Supreme Court

On June 25, 2021, the Supreme Court, reversing the Tenth Circuit, held that a small refinery that had previously received an exemption from certain requirements of the renewable fuel standard (“RFS”) program was eligible for an extension of that exemption, even if it had had a lapse in coverage in previous years. See HollyFrontier Cheyenne Refining, LLC, v. Renewable Fuels Association, et al., Slip Op. 20-472 (June 25, 2021). Petitioners, three small fuel refineries, had each applied for a hardship exemption under the RFS program, and the Environmental Protection Agency (“EPA”) had granted each request. Those exemptions were then challenged by a group of renewable fuel producers. The Tenth Circuit ultimately sided with the renewable fuel producers, holding that because each refinery had allowed its previously held exemption to lapse at times in the past, each was no longer eligible to receive an extension of the original exemption. After hearing oral argument in April 2021, the Supreme Court reversed the Tenth Circuit and held that the text of the statute does not require that the exemption be continually held in order to remain valid. Read More »

Share | Email| Comments|  Topics: Energy, EPA, Oil and Gas, Pipelines, Refinery, Renewable Fuel Standard, Supreme Court, Tenth Circuit, United States Supreme Court

This Blog Post was authored by Timothy Johnson, a summer associate.

Earlier this month, the Commonwealth Court of Pennsylvania concluded that the Pennsylvania Environmental Hearing Board (EHB) erred in its dismissal of the petitioners’ appeal of the approval of a compressor station plan by the Pennsylvania Department of Environmental Protection (PADEP) for lack of subject matter jurisdiction. Cole v. Pennsylvania Dep't of Env't Prot., No. 1577 C.D. 2019, 2021 WL 2420667 (Pa. Cmwlth. 2021). In doing so, the Court held that Section 717r(d)(1) of the federal Natural Gas Act, which provides that federal courts have exclusive jurisdiction over “civil actions” for review of an approval or denial of a permit or approval required by federal law, does not preclude state administrative agency review of state permitting decisions. Accordingly, the EHB’s review of the matter was not preempted. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Air, Citizen Suit, Clean Air Act, EHB, Federal Energy Regulatory Commission, FERC, Hearing Board, Natural Gas Act, Oil and Gas, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Preemption, Subject Matter Jurisdiction

This Blog Post was authored by Isaiah B. Kramer, a summer associate.

On June 7, 2021, the Colorado Supreme Court affirmed in part a decision of the Appellate Division and held that the Colorado Department of Public Health and Environment (“the Department”) may bring an enforcement action against a county under the State’s Solid Wastes Disposal Sites and and Facilities Act (“the SWA”). Bd. of Cnty. Comm’rs of La Plata v. Colo. Dep’t of Pub. Health, 2021 CO 43. In doing so, the Court found that the county was neither protected by sovereign immunity nor otherwise exempt from the reach of the SWA. Read More »

Share | Email| Comments|  Topics: Colorado, Contamination, Enforcement, Enforcement Action, Groundwater, Landfill, Legislation, Nuisance, Sovereign Immunity, Waste

On May 17, 2021, the Supreme Court vacated an appellate court decision which had remanded to state court an action seeking to hold petroleum companies liable for the effects of climate change, finding that the appellate court impermissibly restricted the scope of its review of a district court’s order. Although, as noted by the Supreme Court, “[t]he only question before us is one of civil procedure,” the case of BP P.L.C. v. Mayor and City Council of Baltimore, Docket No. 19-1189 (May 17, 2021) may have a profound practical impact on ongoing environmental litigation. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Climate Change, Decisions of Note, Energy, Fourth Circuit, Greenhouse Gas, Oil and Gas, Procedure, Refinery, Removal, Supreme Court, United States Supreme Court

Less than a month after hearing oral arguments, the United States Supreme Court issued its unanimous decision in Guam v. United States, Docket No. 20-382 (May 24, 2021), the eagerly anticipated opinion on whether consent decrees and administrative orders that do not expressly resolve liability for claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) nevertheless give rise to a claim for contribution under Section 113(f)(3) of CERCLA. The issue is a crucial one and has been the subject of numerous court opinions because of the short, three-year limitations period for contribution actions. The opinion, which the Court intended to provide clarity in the area, holds that only settlements that release “CERCLA-specific liability” trigger the right to contribution. Read More »

Share | Email| Comments|  Topics: Case Update, CERCLA, Clean Water Act, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Decisions of Note, Landfill, Statute of Limitations, Superfund, Supreme Court, United States Supreme Court, Waste

Earlier this month, the Second Circuit affirmed the District Court for the Southern District of New York’s ruling that state common law claims against oil companies for costs resulting from climate change were either preempted by the Clean Air Act, or, in the case of foreign emissions, represented a non-justiciable political question. See City of New York v. Chevron Corp., 993 F.3d 81, 2021 WL 1216541 (2d Cir. 2021). The decision represents the first time an appellate court has had the opportunity to rule on the merits of the federal preemption defense raised by defendants. Although there are active lawsuits in other jurisdictions where plaintiffs have made substantially similar claims, decisions in the other active climate change suits thus far have been restricted to the issue of whether climate change suits brought in state court were properly removed to federal court. The decisions in those cases, therefore, have not addressed the merits of the federal preemption defense. (The Supreme Court is predicted to issue a ruling on the removal issue by the end of its term in June. See Mayor & City Council of Baltimore v. BP p.l.c., et al., 388 F. Supp. 3d 538, 548 (D. Md.), as amended (June 20, 2019), aff’d, 952 F.3d 452 (4th Cir.), cert. granted, 141 S. Ct. 222 (2020)). Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Climate Change, New York, Preemption, Second Circuit

On March 31, 2021, the Court of Appeals for the Seventh Circuit upheld a district court decision interpreting the term “claim” in an indemnification agreement to require some threat of suit or assertion of liability under Minnesota law. Finding that mere notice of potential liability failed to meet that standard, the Court held that under the terms of the agreement, the buyer, Wisconsin Central, Ltd. (“Wisconsin Central”), must indemnify a seller, Soo Line Railroad Company (“Soo Line”), for liability arising under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Wisconsin Central LTD v. Soo Line Railroad Co., No. 19-3129 (7^th Cir. Mar. 31, 2021). Read More »

Share | Email| Comments|  Topics: Breach of Contract, CERCLA, Cleanup, Contamination, Indemnification, Railroad, Seventh Circuit, Superfund