A Court-Side Seat: NWP 12 and the Dakota Access Pipeline Easement Get Forced Vacations, while a Potential Violation of the Eighth Amendment Isn’t Going Anywhere

Pillsbury - Gravel2Gavel Construction & Real Estate Law

Here’s a report on several new decisions made over the past few days.

U.S. SUPREME COURT

U.S. Army Corps of Engineers v. Northern Plains Resources Council
On July 8, 2020, the Court has issued a partial stay of the decision of the U.S. District Court for Montana, which had held that the nationwide use by the Corps of Engineers of its Nationwide Permit 12 to permit oil and gas pipelines must be vacated because the Corps, when it reissued these permits in 2012, failed to follow the requirements of the Endangered Species Act. The breadth of this ruling seems to have surprised and alarmed many past and perspective permittees of the Corps. The stay will not apply to the ongoing Ninth Circuit litigation.

FEDERAL COURTS OF APPEAL

Vega, et al. v. Semple (The U.S. Court of Appeals for the Second Circuit)
On June 29, 2020, the court refused to dismiss a putative class action by past and present inmates of Connecticut’s Garner Correctional Institution who alleged that state correctional officials exposed them to excessive amounts of radon gas in violation of the Eighth Amendment. These officials are alleged to have been “deliberately indifferent” to inmate safety. A 1993 Supreme Court decision, Helling v. McKiney, clearly established the law in this area, and the Garner facility opened in 1992. The defense clams of limited immunity as to federal law violations were rejected.

Howard County, Maryland v. Federal Aviation Administration (The U.S. Court of Appeals for the Fourth Circuit)
On July 1, 2020, the court held in an unpublished opinion, that Howard County, Maryland’s lawsuit against the Federal Aviation Administration, must be dismissed as not being timely filed. The agency had approved an extension to certain facilities at the Thurgood Marshall Baltimore-Washington Airport, but the County complained that the agency failed to comply with NEPA in its decision making. However, its challenge had to be filed within 60 days of the release of the FAA decision, which was not done.

Sierra Club v. EPA (The Tenth Circuit Court of Appeals)
The court held that EPA erred when, in performing its review under the Clean Air Act of a preconstruction permit renewal issued by Utah to PacifiCorp in 2015 (the application was filed in 2001, or 14 years before the state acted) it approved the state permit. The Sierra Club challenged the permit, but EPA dismissed the petition. The plaintiff argues that the facility’s air emissions require it to be subject to major New Source Review, but both Utah and EPA argued that the facility was properly classified as only a minor source. EPA argued that its review concluded that the application satisfied “all applicable requirements” of the Clean Air Act, but the court held that EPA’s interpretation of the regulatory language was inconsistent with the basic regulation. The court noted that the Fifth Circuit recently discussed this regulation and EPA’s interpretation, and came to a different conclusion. There may be a circuit split here.

Boulder County Commissioners, et al. v. Suncor Energy, et al. (The Tenth Circuit Court of Appeals)
Decided on July 7, 2020, this was another instance of energy companies acting to remove state court litigation over alleged climate change damages to the federal courts. Again, the defendants cited the federal officer removal statute, contending that Exxon Mobil’s extensive offshore operations were facilitated and permitted by the federal government—and this was sufficient to invoke the federal officer removal law. The Tenth Circuit rejected this argument, holding that Exxon was not “acting under” a federal government official when it obtained the lease and conducted oil and gas operations, principally in the Gulf of Mexico.

Allegheny Defense Project v. FERC (U.S. Court of Appeals for the DC Circuit)
On June 30, 2020, in an en banc decision, the court held that FERC’s common practice of using “tolling orders” to lengthen the time the Commission had to decide a petition for rehearing a Commission decision was inconsistent with the Natural Gas Act. This is a venerable practice, employed by the agency to give it more to cope with petitions for rehearing. Nevertheless, the court decided that this practice violated the Natural Gas Act. What may have concerned the court was the fact that the authority conferred on successful applicant allowed them to immediately begin condemnation proceedings under the Act’s eminent domain powers to acquire need pipeline easements.

U.S. DISTRICT COURTS

Standing Rock Sioux Tribe, et al. v. U.S. Army Corps of Engineers (The U.S. District Court for the District of Columbia)
On July 6, 2020, Judge Boasberg issued his latest ruling in the Dakota Access Pipeline case. In March 2020, the court ruled that the Corps must prepare an environmental impact statement with respect to the easement it had approved under the Mineral Leasing Act. The easement allowed the pipeline to construct a segment of the pipeline under Lake Oahe, and it is now in operation. However, the court also asked the parties to file briefs on the issue whether the Corps’ failure to prepare an EIS instead of an Environmental Assessment was so significant as to require the vacatur of the easement decision. The court has now determined that the easement decision must be vacated and the operational pipeline must be shut down within 30 days. The Corps must still complete the EIS, which will cover the length and breadth the pipeline project, and it will be subject to extensive judicial review. A petition for a stay will be filed with the DC Circuit.

NRDC, et al., v. Bodine (The U.S. District Court for the Southern District of New York)
On July 8, 2020, the court dismissed a challenge filed against EPA’s temporary enforcement policy which would only be operative during the COVID-19 pandemic. In brief, the agency would employ enforcement discretion when routine monitoring and reporting requirements at permitted facilities could not be performed because of safety and other concerns. The policy has been controversial, and the plaintiffs sought immediate relief; their lawsuit was filed some twenty days after the policy was announced. The court held that the plaintiffs did not establish their standing to prosecute this case, and noted that in their contentions were not well supported: the plaintiffs “have taken no air quality measurements, they have not taken any samples, they do not attest that the air in their neighborhoods has become more polluted.”

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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