Environmental Law Strategy

Environmental Law Strategy

News & Commentary on Developments in Environmental Law and Policy

District Court Rejects Challenge to Wind Farm Permitting, Finds No Violation of ESA or Eagle Protection Act

Posted in Endangered Species Act, Migratory Bird Treaty Act

This month a federal court in Maine rejected a challenge to a permit issued by the U.S. Army Corps of Engineers (Army Corps) for the Oakfield wind power project. The court determined that the Army Corps did not violate the Endangered Species Act (ESA) or the Bald and Golden Eagle Protection Act (Eagle Protection Act) in issuing the permit. The court’s decision is part of a growing trend of cases concluding that a federal agency’s obligations under the Eagle Protection Act and Migratory Bird Treaty Act are limited where the agency permits or authorizes a private project.

In Protect Our Lakes v. U.S. Army Corps of Engineers, No. 13-cv-402 (D. Me. Feb. 20, 2015), the plaintiffs filed suit against the Army Corps over the issuance of a Clean Water Act Section 404 permit that authorized the Oakfield wind project developer to permanently and temporarily fill in certain wetlands during project construction. The plaintiffs challenged the permit on a number of grounds, but abandoned all but their claims under the ESA and Eagle Protection Act during summary judgment. Under the ESA, the plaintiffs argued that the Army Corps improperly relied upon incomplete data to analyze the impact of the project’s construction on Atlantic salmon and did not obtain an incidental take statement in light of the determination that the project was not likely to adversely affect salmon. The court denied relief under both claims, holding that the ESA required use of the best data available, which can include incomplete data. Op. at 8 (“the best scientific data available standard does not require agencies to have complete information before acting”). The court also held that no incidental take statement is required where an action is not anticipated to result in the take of a listed species. Op. at 9. Continue Reading

Federal Court Remands Renewable Energy Project for Additional Explanation; Delay Ensues

Posted in National Environmental Policy Act

Last week, a federal district court in Nevada ruled that the Bureau of Land Management (BLM) and U.S. Fish and Wildlife Service (FWS) failed to adequately explain a decision to authorize a proposed wind energy project. The court remanded the decision to BLM for analysis the court determined to be absent from the administrative record and ordered the agency to prepare a supplemental environmental impact statement (EIS) to address new information regarding the presence of golden eagles within the project area. This decision reinforces the importance of developing and maintaining a thorough administrative record for projects requiring federal approval.

In Bundorf v. Jewell, a group of plaintiffs filed suit against BLM and FWS, claiming that the agencies violated the National Environmental Policy Act (NEPA) and a number of other environmental laws in approving the Searchlight Wind Energy Project in southern Nevada. The project consists of 87 wind turbine generators and energy transmission systems that will occupy approximately 160 acres of land in the Piute Valley. On account of the project’s location, the BLM and FWS had to analyze the project’s potential impacts on the environment, including impacts on protected species such as the desert tortoise, golden and bald eagles, and other bird and bat species. Given the project’s potential impacts, the project proponent had to prepare a Bird and Bat Conservation Strategy (BBCS) to assist in mitigating impacts to bat and bird species. In challenging this project, the plaintiffs argued that the wildlife analyses performed contained significant data gaps and inconsistent conclusions that prevented the agencies from properly evaluating the adverse effects on the species. Continue Reading

New Year, New NEPA Guidance: CEQ Takes on GHGs

Posted in National Environmental Policy Act

At the conclusion of 2014, the Council on Environmental Quality (CEQ) released revised draft guidance for federal agencies evaluating the effects of greenhouse gas (GHG) emissions and climate change as part of an environmental review under the National Environmental Policy Act (NEPA). The guidance directs agencies to consider the effects of a proposed action on climate change by following a proportionality principle and utilizing a specified emissions threshold. Generally, the established threshold dictates whether an agency should prepare a quantitative or qualitative analysis. According to the CEQ, the guidance is designed to provide for better and more informed federal decisions regarding GHG emissions and the effects of climate change. It is also supposed to reduce the risk of litigation driven by uncertainty in the NEPA assessment process. Though the CEQ claims that the substance of the guidance is already baked into NEPA’s existing framework, a reading of the guidance suggests that agencies may be obligated to prepare additional analyses.

The CEQ instructs federal agencies to consider two issues when addressing climate change: “(1) the potential effects of a proposed action on climate change as indicated by its GHG emissions; and (2) the implications of climate change for the environmental effects of a proposed action.” GHG Guidance at 3. Though affording agencies “substantial discretion” on how to address these issues, the guidance directs agencies to prepare a quantitative analysis of potential climate change impacts where a proposed action is anticipated to emit 25,000 metric tons of CO2e emissions or greater on an annual basis. The CEQ cautions that this number does not define what constitutes a “significant impact” that would require the preparation of an environmental impact statement (EIS) instead of an environmental assessment (EA). Instead, the ultimate significance determination remains subject to an agency’s consideration of context and intensity, as set forth in the CEQ Regulations. Id. at 19.

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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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