Environmental Energy & Utilities Civil Procedure

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Supreme Court's Petition Denial in Clean Air Act Pre-emption Case Reinforces Threat From Common Law Claims

The United States Supreme Court denied a petition for certiorari earlier this month after the Iowa Supreme Court held in June that the plaintiffs' nuisance claims were not pre-empted by the Clean Air Act (CAA) in Freeman v....more

Fish Two, Water Withdrawals Zero: The 9th Circuit Affirms Another Biological Opinion

On Monday, the 9th Circuit Court of Appeals dealt another blow to traditional operation of the massive water projects that supply California’s Central Valley. The Court reversed those parts of a District Court opinion that...more

Construction E-Note - December 2014

In this issue: - Construction Expected to Increase in 2015 - What Now? Why Maryland's Decision to Recognize the International Green Construction Code May Signal a Major Shift in the Means Utilized to Implement...more

Proof and Causation Matter: District Court Declines to Penalize ExxonMobil in Texas Citizen Suit

On Wednesday, Judge David Hittner, of the District Court for the Southern District of Texas, in a decision long enough to require two separate pdfs, declined to impose an injunction or penalties (plaintiffs sought...more

Illinois Supreme Court Agrees to Decide FutureGen Clean Coal Dispute

In the closing days of its November term, the Illinois Supreme Court agreed to decide an issue of potentially enormous consequence to a major Illinois utility, agreeing to review an order of the Illinois Commerce Commission...more

Fourth District’s Split Decision Further Complicates CEQA Requirements Surrounding GHG Impact Analysis and Mitigation Measures –...

Cleveland National Forest Foundation v. San Diego Association of Governments (11/24/14, D063288) - In a split decision on November 24, 2014, the Fourth District California Court of Appeal invalidated the program EIR...more

Energy Newsletter - December 2014

In This Issue: - Plans to build the first coal gasification plant in Britain - Letters of credit, on-demand bonds, and the "fraud exception" - Argentina amends its hydrocarbons law to boost exploration...more

DOT Denies Request to Prohibit Shipment of Bakken Crude Oil on Older Tank Cars; Environmental Groups Push Battle to Courtroom

On December 2, 2014 following the Department of Transportation’s (“DOT”) November 7, 2014 denial of their request for an immediate ban on use of older DOT-111 or CTC-111 railcars for the shipment of crude oil from the Bakken...more

Fourth District Publishes Another CEQA Decision Setting Aside San Diego Lead Agency’s EIR For Failure To Analyze And Mitigate GHG...

Having seen years of their lofty regional planning efforts come crashing back to Earth, San Diego government entities have had little to be thankful about so far this holiday season on the CEQA front. In an October 29...more

California Environmental Law and Policy Update - November 2014 #4

Environmental and Policy Focus: Coastal California residents using far less water - Associated Press - Nov 4: Residents in coastal communities use far less water than their inland counterparts, but still find ways to...more

EPA Does Not Have a Nondiscretionary Duty to Revise PSD Regulations When It Amends a NAAQS

On Monday, the 9th Circuit Court of Appeals ruled that EPA does not have an obligation to amend PSD regulations for a criteria pollutant within two years of revising the National Ambient Air Quality Standard for that...more

CEQA Alert: Court of Appeal Rules Against San Diego Agencies in Two Separate CEQA Challenges Involving Greenhouse Gas Emissions...

Two recent decisions by California’s Fourth Appellate District highlight the CEQA compliance challenges facing local governments charged with implementing state and local greenhouse gas (GHG) emissions reduction mandates....more

Analysis Of GHGs Under CEQA Just Got More Complex: Fourth District’s Split Decision Invalidates Program EIR For SANDAG’s 2050...

In a 2-1 published opinion filed November 24, 2014, the Fourth District Court of Appeal, Division 1, affirmed and modified the trial court’s judgment granting writ petitions by plaintiff groups challenging the EIR for the San...more

Ninth Circuit Rejects Use of Preemptive Litigation to Validate Federal Approvals

Shell Gulf of Mexico, Inc., v. Center for Biological Diversity, (11/12/14, No. 13-35835) The Ninth Circuit has rejected a “novel litigation strategy” that Shell Gulf of Mexico, Inc., employed in an effort to preempt a...more

Supreme Court Asked to Allow Immediate Judicial Review of Clean Water Act Jurisdictional Determinations

A landfill developer has asked the Supreme Court to review a decision of the Fifth Circuit holding that a jurisdictional determination by the U.S. Army Corps of Engineers is not final agency action subject to judicial review....more

CEQA Lawsuit to Enforce Climate Change Mitigation Measure Prevails

On October 29, 2014 the California Court of Appeal affirmed a trial court’s judgment enforcing a mitigation measure adopted by a county in its program environmental impact report (PEIR). As of the date of this blog post,...more

California Environmental Law and Policy Update - November 2014

Environmental and Policy Focus - Coastal California residents using far less water: Associated Press - Nov 4: Residents in coastal communities use far less water than their inland counterparts, but still find ways to...more

Numerous Parties Line Up in Support of Petition in Delta Smelt Case

As we reported here, on October 6, 2014, a number of public water agencies and other entities that represent agricultural and municipal water users in California filed a petition for writ of certiorari with the U.S. Supreme...more

FERC Issues Declaratory Order Disclaiming Jurisdiction Over Proposed CNG Facility

On September 19, 2014, FERC issued a declaratory order holding that it would not have jurisdiction under the Natural Gas Act ("NGA") over the construction or operation of a compressed natural gas ("CNG") facility that Emera...more

Proving An Operator’s Gross Negligence: Is Intention Required?

Establishing an operator’s gross negligence requires “a degree of intentionality”, the Alberta Court of Queen’s Bench recently held in Bernum Petroleum Ltd v Birch Lake Energy Inc, 2014 ABQB 652 [Bernum]....more

Kentucky Federal Court Holds Tort Claims Not Preempted by Clean Air Act

State common law tort claims based on air emissions from a power plant are not preempted by the federal Clean Air Act (CAA), according to the U.S. District Court for the Western District of Kentucky. The court agreed to...more

Maine Supreme Court Affirms Broad Review Powers for BEP in Clearing Way for Wind Project

The Maine Supreme Judicial Court (the Law Court) recently issued an important decision that confirms the broad authority of the Maine Board of Environmental Protection (BEP) to review decisions of the Commissioner of the...more

California Environmental Law and Policy Update - October 2014 #4

Environmental and Policy Focus - Groups sue EPA over failure to reduce air pollution: KPCC - Oct 17: Environmental groups have filed a lawsuit in U.S. District Court in San Francisco against the U.S. Environmental...more

Hydrocarbon Exposure Reconsidered

You might recall previous entries discussing the $2.9 million Dallas County verdict and judgment in Parr v. Aruba. Not all similar suits have the same result. Michael and Myra Cerny sued Marathon Oil Corp. and Plains...more

Maine Supreme Court Backs Passadumkeag Windpark LLC

The Maine Supreme Judicial Court issued a decision this week that upholds a decision by the Board of Environmental Protection that approved a wind energy project proposed by Passadumkeag Windpark, LLC....more

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