Lawyers in the Toxic Torts Section at Beasley Allen handle environmental litigation for our firm. The Section is headed by Rhon Jones and Sandra Walters is the Section Administrator. Currently there are nine lawyers and 17 support staff in the Section. It’s mid-year and already there have been some major Court rulings affecting environmental litigation. Following is a brief rundown of these decisions:
Army Corps v. Hawkes
Landowners scored a win in this U.S. Supreme Court decision that says federal courts can review Army Corps of Engineers’ determinations that a wetland is subject to Clean Water Act regulations. This unanimous decision upholds the Eighth Circuit’s ruling that determined approved jurisdictional determinations are final agency actions that can be reviewed by courts under the Administrative Procedure Act. This makes it easier for landowners who disagree with the agency’s findings to challenge the decision. It is expected that this ruling will be expanded to apply to other challenges or administrative orders, especially under the Resource Conservation and Recovery Act (RCRA) or the Clean Air Act. The case is U.S. Army Corps of Engineers v. Hawkes Co. Inc. et al. in the U.S. Supreme Court.
West Virginia v. EPA
A ruling that shocked a lot of folks came down in February, when the U.S. Supreme Court reversed the D.C. Circuit’s decision not to stay the implementation of the Environmental Protection Agency (EPA) Clean Power Plan while it is being challenged in court. This was one of Justice Antonin Scalia’s last actions. The ruling grants emergency stay actions filed by opponents of the rule, and prevents the EPA from implementing the rule until the litigation is complete. The proposed rule would govern carbon dioxide (CO2) emissions from existing power plants nationwide. As a result of the Supreme Court ruling, the D.C. Circuit canceled oral arguments scheduled for June in front of a three-judge panel and moved them to September, where they will be held in front of the full court. The cases are West Virginia et al. v. EPA in the U.S. Supreme Court and West Virginia et al. v. EPA in the U.S. Court of Appeals for the District of Columbia Circuit.
Hard Rock Financial Assurance Regulation Litigation
In January the D.C. Circuit Court resolved issues of financial assurance or financial responsibility surrounding the release of hazardous substances. The Court approved a deal with the EPA that would set a hard deadline for the agency to decide whether to impose new financial rules for hard rock mining companies involved in Superfund litigation. This was a blow to the industry, which argued that the schedule is arbitrary and unreasonable. The ruling affects entities potentially responsible for the release of hazardous substances to put aside funding for future cleanup or reclamation efforts. The EPA and environmental groups said the rules, to be established under the Comprehensive Environmental Response, Compensation and Liability Act, were 30 years overdue. The case is In re: Idaho Conservation League et al. in the U.S. Court of Appeals for the District of Columbia Circuit.
AOGA v. Jewell
Polar bears in Alaska will receive protection under the law as the result of a February ruling by the Ninth Circuit, which reversed an Alaska district court ruling that vacated parts of the U.S. Fish & Wildlife Service’s (FWS) designation of critical habitat for the bears. Energy groups including oil and gas associations, along with several Alaska Native corporations and villages, and the state of Alaska had challenged the designation, which protects 120 million acres of polar bear habitat under the Endangered Species Act (ESA). They argued that the FWS would need to provide verifiable evidence of essential habitat features for the species. By reversing the earlier ruling that faceted parts of the critical habitat designation, the Ninth Circuit makes it possible for the FWS to more easily set aside large portions of land to boost species conservation. The case is Alaska Oil and Gas Association et al. v. Sally Jewell et al. in the U.S. Court of Appeals for the Ninth Circuit.
Environment Texas Citizen Lobby v. Exxon Mobil
In May, the Fifth Circuit decided Exxon Mobil Corp. will have to face a lawsuit from environmentalists concerning emissions from its Baytown, Texas, refinery. The ruling was handed down by a three-judge panel and allows the lawsuit filed by the Environment Texas Citizen Lobby Inc. and the Sierra Club to proceed. The suit accuses the oil giant of more than 18,000 actionable violations of environmental laws. The ruling determined that an earlier ruling in Exxon’s favor was “irreconcilably inconsistent.” The case is Environment Texas citizen Lobby Inc. et al. v. Exxon Mobil Corp. et al. in the U.S. Court of Appeals for the Fifth Circuit.
Sahu v. Union Carbide
The Second Circuit in May upheld U.S. District Judge John F. Keenan’s 2014 decision to reject Plaintiffs’ bid for a putative class action against a pesticide factory located in Bhopal, India. The lawsuit sought compensation for alleged property damage and soil and drinking water contamination the Plaintiffs said resulted from the Union Carbide Corp. facility in the 1970s and ‘80s. The Court supported the Judge’s earlier ruling that this lawsuit’s facts were the same as those in a personal injury lawsuit that was dismissed in 2013. The Plaintiffs had asserted they had new evidence that could link Union Carbide with Union Carbide India Ltd., the subsidiary in charge of the Bhopal facility. However, the Second Circuit ruled the purported new evidence was insufficient. The case is Jagarnath Sahu et al. v. Union Carbide Corp. et al. in the U.S. court of Appeals for the Second Circuit.
Ebert v. General Mills
A unanimous ruling by the Eighth Circuit in May overturned class claims status for 200 homeowners suing General Mills Inc. for allegedly allowing carcinogenic vapors from a Superfund site to seep into their Minneapolis neighborhood. The Plaintiffs alleged lingering vapors from the substance trichloroethylene, or TCE, had contaminated the soil beneath their homes, decreasing property values. However, the Court ruled questions of liability and damages were too individualized to be grouped. The case is Karl Ebert et al. v. General Mills Inc., in the U.S. court of Appeals for the Eighth Circuit.
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