Environmental Law Strategy

Environmental Law Strategy

News & Commentary on Developments in Environmental Law and Policy

D.C. Circuit Rejects Psychological Harm Theory in Deer-Culling Case

Posted in Administrative Procedure Act, National Environmental Policy Act

This Tuesday, the D.C. Circuit issued an opinion in No. 13-5136, Grunewald v. Jarvis, affirming the lower court’s decision that the National Park Service’s promulgation of the White-Tailed Deer Management Plan was lawful. At issue in that case was whether the service’s adoption of a plan for culling the population of white-tailed deer in Rock Creek National Park violated the Administrative Procedure Act (APA) by failing to comply with certain federal statutes, including the National Environmental Policy Act (NEPA). Much of the court of appeals’ decision affirming the district court’s summary judgment in favor of defendants (see 930 F. Supp. 2d 73 [D.D.C. 2013]) is a relatively vanilla application of the APA. But the final prong of the court’s NEPA analysis is noteworthy in that it explicitly excludes psychological harms from the scope of impacts that fall within NEPA’s ambit.

Under NEPA and its implementing regulations, agencies are required to consider the “environmental impact” of major federal actions, including “aesthetic” issues and “the relationship of people with [the] environment.” Slip Op. at 22 (quoting NEPA and CFR language). The plaintiffs argued that the Park Service did not adequately consider public objections that killing deer will “significantly mar [the public’s] ability to enjoy using this Park” and “fundamentally transform the [Park’s] overall character.” Id. Continue Reading

EPA to Propose Health Care Facility-Specific Regulations for the Management of Hazardous Waste Pharmaceuticals Under RCRA

Posted in EPA, Resource Conservation and Recovery Act

EPA plans to propose new regulations this year to address the management of hazardous waste pharmaceuticals under the Resource Conservation and Recovery Act (RCRA). The agency anticipates issuing a notice of proposed rulemaking on this issue in June 2015, according to its updated regulatory agenda, the availability of which was announced in the Federal Register on December 22, 2014 (79 Fed. Reg. 76,772).

EPA previously issued a notice of proposed rulemaking on this topic in December 2008 (73 Fed. Reg. 73,520). Its 2008 proposal would have added hazardous waste pharmaceuticals to the Universal Waste Rule, which modifies RCRA’s hazardous waste regulations to streamline the management of certain hazardous wastes. EPA explained at the time that it hoped the approach would facilitate the implementation of pharmaceutical take-back programs. But after receiving adverse public comment on the proposal, EPA did not follow up with a final rule. In its online discussion “Management of Hazardous Waste Pharmaceuticals,” EPA explains that “comment on the December 2008 proposal revealed numerous concerns over the lack of notification requirements for those facilities that generate, handle or transport ‘universal waste’ pharmaceuticals as well as for the lack of tracking requirements for the shipment of these wastes.” Continue Reading

D.C. Circuit Rejects Petition Seeking TSCA Regulation of Spent Lead Bullets and Shot

Posted in EPA

On December 23, 2014, the U.S. Court of Appeals for the D.C. Circuit issued an opinion rejecting on the merits a petition filed by 101 environmental groups seeking to compel EPA to regulate spent lead bullets and shot under the Toxic Substances Control Act (TSCA).  The case is Trumpeter Swan Society v. EPA, No. 1:12-cv-00929 (D.C. Cir. Dec. 23, 2014).

The environmental groups petitioned EPA for a rulemaking to prohibit or otherwise regulate the use of bullets and shot containing lead in hunting and shooting sports.  EPA refused to consider the petition on the grounds that it had previously denied a nearly identical petition, but noted that if it were to consider the petition it would deny it on the grounds that TSCA does not authorize the regulation of lead in bullets and shot.  Specifically, EPA explained that TSCA section 3(2)(B)(v) excludes bullets and shot from the definition of “chemical substance” for purposes of TSCA.  The D.C. Circuit disagreed with EPA that it could disregard the petition as duplicative of a previously denied petition, but it agreed with EPA that TSCA does not authorize the regulations that the environmental groups were seeking.  Continue Reading

EPA Significantly Revises Regulations Affecting Hazardous Materials Recyclers

Posted in EPA, Resource Conservation and Recovery Act

On December 10, 2014, EPA released a prepublication version of its long-awaited final rule revising regulations affecting hazardous materials recyclers under the Resource Conservation and Recovery Act (“RCRA”).  The rule, known as the Rulemaking on the Definition of Solid Waste (“2014 DSW final rule”), is expected to be published in the Federal Register by the end of December 2014 and will go into effect six months after it is published.  The final rule may be challenged in the United States Court of Appeals for the District of Columbia within 90 days of the date the final rule is published in the Federal Register.

As anticipated, the 2014 DSW final rule adds a number of new requirements to an existing exclusion, codified at 40 CFR § 261.4(a)(23), that EPA promulgated in 2008 for hazardous secondary materials that are reclaimed under the control of the generator (i.e., spent materials, by-products, and sludges).  Specifically, the 2014 DSW final rule (1) adds a recordkeeping requirement for same-company and toll manufacturing reclamation, (2) requires notification to an entity’s regulatory authority as a condition of the exclusion, (3) requires documentation that recycling under the exclusion is legitimate, and (4) adds emergency preparedness and response requirements.  In addition, the 2014 DSW final rule codifies at 40 CFR § 260.10 a new definition of “contained” for purposes of the requirement that hazardous secondary materials must be contained to qualify for this exclusion. Continue Reading

District Court Limits Tiering of Biological Opinions

Posted in Endangered Species Act

On December 5, 2014, a federal district court held that the U.S. Fish and Wildlife Service (FWS) failed to comply with the Endangered Species Act (ESA) when it relied entirely on existing programmatic biological opinions to satisfy its formal consultation obligations. The court’s decision is likely to impact the manner in which FWS cross-references or “tiers to” existing biological opinions in evaluating the impacts of a site-specific project on listed species.

In Native Ecosystems Council v. Krueger, the plaintiffs challenged a decision by the U.S. Forest Service authorizing commercial logging on 1,750 acres of the Gallatin National Forest. The plaintiffs brought claims under the ESA, alleging that the FWS improperly relied on previous biological opinions for the grizzly bear and the Canada lynx during the formal consultation process, instead of preparing project-specific biological opinions. Continue Reading

Federal District Court Doubles Down, Vacates Hawaii County GMO Ban

Posted in Genetically Modified Organisms

On November 26, Magistrate Judge Barry Kurren struck down Hawaii County’s Ordinance 13-121, which restricts the open-air growth and cultivation of genetically engineered crops or plants (GMOs). See Slip Op. at 28. In this opinion, Magistrate Judge Kurren found that Hawaii County’s ordinance was preempted in part by the federal Plant Protection Act (“PPA”) 7 U.S.C. §§ 7701 et seq., in addition to finding the ordinance completely preempted by state law. This decision is the second by Magistrate Judge Kurren regarding a county’s ability to regulate GMO cultivation. On August 25 of this year, he vacated Kauai County’s Ordinance 960. What sets this opinion apart from the previous one, however, is the finding that the PPA expressly preempts local laws banning the growth of genetically engineered plants. This interpretation of federal law will likely serve as a harbinger of future cases outside Hawaii.

The Hawaii County ordinance, codified as Hawaii County Code §§ 14-128 et seq., generally prohibited the open-air cultivation, propagation, development, or testing of genetically modified plants. In June 2014, a group of plaintiffs filed suit against the law, setting forth four separate claims. See Hawaii Floriculture & Nursery Ass’n v. Cnty. of Hawaii, No. 14-cv-00267 (D. Haw.). The plaintiffs recently filed a motion for summary judgment on two of them: that the ordinance was preempted by (1) federal law and (2) state law. Continue Reading

The State and Local GMO Regulatory Landscape – Post-Election Edition

Posted in Genetically Modified Organisms

The November election changed the regulatory landscape for genetically modified organisms (“GMO”). Though none of the proposed GMO labeling laws on state ballots succeeded, two counties were successful in passing either a ban or moratorium on the growth or cultivation of bioengineered crops.

Two major GMO labeling laws were presented to voters for consideration in Oregon and Colorado. Each measure failed. In Colorado, the voters defeated the proposed labeling law by a wide margin: approximately 66% of voters rejected the measure. In Oregon, the election results were significantly closer, with the opposition prevailing by less than a 0.5% margin. The election results leave Vermont as the only state with an applicable labeling law that will impose affirmative labeling obligations on food manufacturers and retailers.

Two county measures regulating the growth of GMOs passed this election, one in Maui County, Hawaii, and the other in Humboldt County, California.

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Ninth Circuit Rebuffs Shell’s Declaratory Judgment Act Suit

Posted in Administrative Procedure Act, Declaratory Judgment Act

The Ninth Circuit recently rejected “a novel litigation strategy” under the Declaratory Judgment Act (DJA). Shell Gulf of Mex. v. Ctr. for Biological Div., 13-35835 (9th Cir. Nov. 12, 2014) (Slip Op.). According to the Ninth Circuit, a beneficiary of a federal agency action cannot establish a case or controversy under Article III in a DJA action against nongovernment parties where the legal interests of the beneficiary and the federal agency are not adverse. The court reached this determination notwithstanding the fact that the DJA suit was filed against groups vehemently opposed to the agency action that had threatened litigation. This opinion may reduce the potential strategies that a beneficiary can employ to protect its rights from the threat of litigation regarding a federal agency decision under the Administrative Procedure Act (APA).

This lawsuit began as a result of Shell Gulf of Mexico’s (Shell) efforts to explore the Arctic for oil and gas development. In order to do so, Shell obtained lease rights to areas in the Beaufort and Chukchi Seas from the federal government and as part of this process submitted oil spill response plans with the federal Bureau of Safety and Environmental Enforcement (BSEE) for approval. The BSEE approved the plans in accordance with the Oil Pollution Act. During the review period a large number of environmental organizations opposed the approvals and threatened to sue if the BSEE granted its approval.

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The State and Local Regulatory Landscape for Bioengineered Plants

Posted in Genetically Modified Organisms

Across the country, numerous state and local governments have enacted or are considering laws affecting the cultivation, use, and labeling of genetically engineered plants (“GMOs”).  These laws are best described in three different categories: (1) laws that ban the cultivation of GMOs; (2) laws that regulate the handling of GMOs; and (3) laws that impose disclosure requirements on the sale of GMOs, such as food labeling.  The landscape of GMOs laws is constantly in flux.  Although only a few laws are currently in effect, many more are being proposed.  Additionally, some laws are subject to legal challenges, and at least one has been overturned.

Laws that ban GMOs are straightforward prohibitions against any form of growing a bioengineered plant.  Currently, there are versions of these laws in California (Marin, Mendocino, Santa Cruz, and Trinity counties, and the cities of Arcata and Point Arena), Hawaii (Hawaii County), Maine (Town of Montville), Oregon (Jackson and Josephine counties), and Washington (San Juan County).  Generally, these laws make it unlawful for “any person or entity to propagate, cultivate, raise, or grow genetically modified organisms” in the specified jurisdiction.  Some versions of these laws are more stringent, making it unlawful to “sell, distribute, propagate, cultivate, raise or grow seeds or crops of genetically engineered organisms.”  Arcata Ordinance 1350; see also Point Arena Code § 8.25 (same).  Other versions, such as Hawaii County’s, impose a general prohibition on the open air cultivation, propagation, development, and testing of genetically engineered crops or plants, but exempt certain crops (e.g., papaya) and allow for continued cultivation on land where GMOs were already planted before the ordinance became effective.  Hawaii County Code § 14-128. Continue Reading

OSHA Expands Employers’ Reporting Requirements for Work-Related Injuries and Fatalities

Posted in OSHA

On Sept. 11, 2014, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced revisions to its rule that requires employers to notify OSHA when employees suffer a work-related hospitalization or fatality. Under the previous rule, OSHA’s regulations required an employer to report the work-related fatality of one or more persons and the hospitalization of three or more workers for more than first aid. OSHA did not require employers to report the hospitalization of one employee, amputations, or the loss of an eye under the previous version of the rule.

The revisions announced in September 2014 expand employers’ reporting requirements. Under the revised rule, employers will be required to notify OSHA of work-related fatalities within eight hours, and work-related in-patient hospitalizations, amputations, or losses of an eye within 24 hours. Occupational Injury and Illness Recording and Reporting Requirements—NAICS Update and Reporting Revisions, 79 Fed. Reg. 181 (Sept. 18, 2014) (to be codified at 29 C.F.R. pt. 1904). Continue Reading