Eastern District of North Carolina Dismisses Challenge to State Clean Water Permitting Decision

WaterOn July 30, the United States District Court for the Eastern District of North Carolina decided Rose Acre Farms, Inc. v. North Carolina Department of Environment and Natural Resources, No. 14-cv-147, 2015 WL 4603950. The court dismissed the plaintiff’s action for declaratory judgment, holding that it lacked subject-matter jurisdiction over the claim and, alternatively, that it would refrain from exercising discretion to review the claim under the Declaratory Judgment Act. The court’s decision is significant not only in the Clean Water Act context, but also in cases challenging state permitting decisions in other “cooperative federalism” regulatory regimes under which significant permitting authority is delegated to the states.

The plaintiff in Rose Acre Farms operates an egg farm. As required by state law, the plaintiff constructed a detention pond to control surface water. The detention pond, located near a hen house, also picks up small amounts of dust, feathers, and manure. While it does not directly discharge into state or federal waters, the detention pond periodically discharges accumulated precipitation and debris into a nearby canal. Therefore, the state environmental agency required the plaintiff to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit under the Clean Water Act. Continue Reading

Tenth Circuit Rejects Constitutional Challenge to Colorado’s Renewable Energy Mandate

energyOn July 13, the Tenth Circuit upheld Colorado’s renewable energy mandate against a claim that it impermissibly interferes with interstate commerce. This decision, addressing a state’s power to encourage or require the development of renewable energy resources and infrastructure, is significant because EPA’s Clean Power Plan—expected to be finalized within weeks—contemplates such policies as one of four “building blocks” for regulating carbon dioxide emissions from power plants. Additionally, the Tenth Circuit’s decision may influence the outcome of a challenge to a similar law pending before the Eighth Circuit.

The U.S. Constitution expressly gives Congress the power to “regulate Commerce . . . among the several States.” Courts have long interpreted this provision as implying that the states cannot interfere with interstate commerce—a doctrine known as the “dormant” or “negative” Commerce Clause. With limited exceptions, a state may not treat out-of-state economic actors differently than in-state ones. The Supreme Court has often explained that the purpose of this doctrine is to prevent “economic Balkanization” among the states, a principle it recently referenced in Comptroller of Treasury of Maryland v. Wynne, 135 S. Ct. 1787 (2015), where it struck down an aspect of Maryland’s income tax regime. Continue Reading

White House Announces Plans To Revise the Coordinated Framework for the Regulation of Biotechnology

White HouseThe White House, through the Office of Science and Technology Policy (OSTP), announced a major initiative to overhaul the regulation of biotechnology products (OSTP Memo), which are products developed through genetic engineering (excluding human drugs and medical devices). This initiative, detailed in a memorandum to the Food and Drug Administration (FDA), Environmental Protection Agency (EPA), and Department of Agriculture (USDA), aims to improve biotechnology regulation by reducing regulatory burdens and improving transparency, predictability, and coordination among regulatory agencies.  The new regulatory approach will significantly impact the manner in which biotechnology products are approved, making this initiative an important one to follow.

The FDA, EPA, and USDA currently regulate biotechnology products in accordance with the Coordinated Framework for the Regulation of Biotechnology promulgated in 1986.  Generally, FDA regulates the use of biotechnology products as food or food additives; EPA regulates the use of bioengineered products as pesticides or plant incorporated protectants; and USDA regulates (through the Animal and Plant Health Inspection Service) the release into the environment of genetically engineered plants, seeds, and other regulated articles.  The OSTP updated the Coordinated Framework in 1992, setting forth a risk-based approach for the oversight of activities that introduce biotechnology products into the environment.  This update affirmed that federal oversight should focus on the characteristics of the biotechnology product and the environment into which it is being introduced, rather than the process by which the product is created. Continue Reading

Maui GMO Ban Overturned; Federal Court Remains Consistent on Preemption Analysis

red ginger hawaiian flowerThis week, the federal district court in Hawaii struck down a Maui County law imposing a moratorium on the cultivation of genetically engineered organisms (GE plants, or GMOs). This decision is the third of three challenges to county laws in Hawaii imposing restrictions on GE plants (the other two involved challenges to a Hawaii County ordinance and a Kauai County ordinance). In each decision, the court held the local laws were preempted by federal law, state law, or both. As the number of local laws restricting the growth and cultivation of GE plants rises, this decision will likely inform future legal challenges.

Last November, Maui County voters passed a ballot initiative (Maui Ordinance) that makes it unlawful to “propagate, cultivate, raise, grow or test Genetically Engineered Organisms within the County of Maui.” Opinion at 6 (citing Maui Ordinance). A group of plaintiffs filed suit challenging the ordinance, arguing that federal and state law preempted it. The court agreed with the plaintiffs on both grounds. Continue Reading

EPA’s 2015 General Permit for Industrial Stormwater Carries New Risks for Industry

Water RipplesIn a controversial change, the 2015 version of the Environmental Protection Agency (EPA) general permit for industrial stormwater discharges (known as the Multi-Sector General Permit, or MSGP) expressly prohibits the discharge of any pollutants that are not listed in the permit. The prior version of the MSGP – issued in 2008 – did not include this express prohibition on discharges of unlisted pollutants. As a result of this change, facilities operating under the MSGP may need to supplement their reliance on the general permit with a separate, facility-specific National Pollutant Discharge Elimination System (NPDES) permit or be at increased risk of liability for discharges of unlisted pollutants. The 2015 MSGP became effective on June 4, 2015, and facilities operating under the expiring 2008 version of the MSGP must submit their Notices of Intent to operate under the 2015 MSGP by September 2, 2015, absent an extension from EPA.   Continue Reading

In Wake of Supreme Court Ruling, EPA Issues Direct Final Rule Allowing Rescission of Some Clean Air Act Permits

Environmental_bigstock-Global-Warming-and-pollution-t-18865019On May 7, the Environmental Protection Agency (EPA) published a direct final rule in the Federal Register. The rule allows for rescission of certain Prevention of Significant Deterioration (PSD) permits under the Clean Air Act. The agency took this step in response to the Supreme Court’s decision last year in Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014).

In UARG, the Court struck part of EPA’s so-called Tailoring Rule. In this Rule, EPA had provided that new or modified stationary sources emitting more than a certain amount of greenhouse gases must obtain PSD permits, limiting their emissions of greenhouse gases, whether or not they also emit one or more traditional pollutants at a level sufficient to trigger such a requirement. But because sources emit greenhouse gases in much greater quantities than they do traditional pollutants, applying the express statutory threshold designed with those pollutants in mind could have required EPA to issue permits to millions of sources nationwide. In the Rule, EPA therefore purported to alter the statutory threshold to a much higher level. Continue Reading

D.C. Circuit Upholds FERC Approval of Maryland Natural Gas Facility

On April 24, the D.C. Circuit issued its opinion in Myersville Citizens for a Rural Community v. FERC, upholding the Federal Energy Regulatory Commission’s (“FERC” or the “Commission”) approval of Dominion Transmission’s construction of a natural gas compressor station in Myersville, Vertical Shot of Natural Gas DrillMaryland. Local citizens challenged the approval on a host of procedural and substantive grounds, but the court rejected them all.

First, the court held that FERC’s finding of public need for the project was supported by substantial evidence in the record, even though Dominion did not submit the most recent versions of its long-term contracts to sell its expanded supply, because the company did submit a summary of the agreements’ terms and an affidavit from a corporate officer stating that it had executed binding agreements for 100 percent of the additional capacity resulting from the project. (Here, the court also rejected petitioners’ argument that the project would “overbuild” capacity beyond the amount disclosed in its application; the compressor under construction is more powerful than the one originally proposed, but that is due to differences between the originally proposed location and the final one.) Continue Reading

Ohio Federal Court Rules That DuPont’s Teflon Emissions Are Covered by RCRA

Last week the Southern District of Ohio held that air emissions from DuPont’s Teflon production operations at its Washington Works Facility in West Virginia, which landed on a water supplier’s wellfield and contaminated the soil and groundwater, constituted disposal of solid waste under RCRA.

The plaintiff, a nonprofit water supplier, sued DuPont in a citizen suit for “imminent and substantial endangerment” under RCRA, 42 U.S.C. § 6972(a)(1)(B). The plaintiff claimed that  Teflon production operations at DuPont’s Washington Works Facility in West Virginia produced air emissions that landed on the plaintiff’s wellfield, polluting the land and groundwater beneath  it. The alleged hazardous wastes emitted by DuPont’s operations were perfluorooctanoic acid (C8) and other perfluorinated compounds (PFCs). DuPont used C8 in its manufacturing processes from 1951 until it was finally phased out completely in June 2013. DuPont did not contest either the fact that it released C8 or the amount of C8 it released through its air emissions. Instead, DuPont argued that air emissions are not a disposal covered by RCRA. Continue Reading

In Cross-Border Contamination Case, Court Holds That CERCLA Displaces Federal Common Law Public Nuisance Claim

In yet another recent case involving the intersection of CERCLA and state law, the United States District Court for the Eastern District of Washington held that CERCLA legislatively displaced federal common law public nuisance claims for damages arising out of environmental contamination. The case is Anderson v. Teck Metals, Ltd., No. CV-13-420-LRS, 2015 WL 59100 (E.D. Wash. Jan. 5, 2015). The defendant in the case was a smelter located in British Columbia, Canada, and the plaintiffs were residents of Washington who alleged personal injuries from the smelter’s air emissions. Among several other legal theories, the plaintiffs asserted a federal common law public nuisance claim for damages. Although the court rejected the defendant’s argument that only a state entity may assert a federal common law public nuisance claim, it agreed with the defendant that such a claim was legislatively displaced by CERCLA.

The court decided the legislative displacement question by determining whether CERCLA addressed the nature of the hazard at issue. Id. at *9 (“[t]he test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute ‘speak[s] directly to [the] question’ at issue.”). Examining CERCLA, the court concluded that the harm of which plaintiffs complained is one to which Congress has spoken directly by way of CERCLA. The fact that CERCLA does not itself provide remedies for personal injury was irrelevant to the analysis for legislative displacement, the court explained. Id. at *10. It was sufficient that “Congress has provided a comprehensive liability and remediation scheme to address releases and threatened releases of hazardous substances by making polluters strictly liable for response costs to clean up the hazardous substances, and liable for natural resource damages to remedy harm to the environment for which they are responsible.” Id. Continue Reading

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