Articles Posted in Environmental Law

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Tennessee Valley Authority (TVA) operates the coal-fired electricity-generating Gallatin Fossil Plant on a part of the Cumberland River called Old Hickory Lake, a popular recreation spot. The plant supplies electricity to approximately 565,000 households in the Nashville area but generates waste byproducts, including coal combustion residuals or coal ash. The plant disposes of the coal ash by “sluicing” (mixing with lots of water) and allowing the coal ash solids to settle unlined man-made coal ash ponds adjacent to the river. The plant has a permit to discharge some coal combustion wastewater, which contains heavy metals and other pollutants, into the river through a pipe. Other wastewater is allegedly discharged through leaks from the ponds through the groundwater into the Cumberland River, a waterway protected by the Clean Water Act (CWA), 33 U.S.C. 1251. The district court found that TVA violated the CWA because its coal ash ponds leak pollutants through groundwater that is “hydrologically connected” to the Cumberland River without a permit. The theory is called the “hydrological connection theory” by the federal Environmental Protection Agency (EPA). The Sixth Circuit reversed, finding no support for the hydrological connection theory in either the text or the history of the CWA and related environmental laws. View "Tennessee Clean Water Network v. Tennessee Valley Authority" on Justia Law

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Kentucky Utilities (KU) burns coal to produce energy, then stores the leftover coal ash in two man-made ponds. Environmental groups contend that the chemicals in the coal ash are contaminating the surrounding groundwater, which in turn contaminates a nearby lake, in violation of the Clean Water Act (CWA), 33 U.S.C. 1251(a), and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6902(a). The Sixth Circuit affirmed, in part, the dismissal of their suit. The CWA does not extend liability to pollution that reaches surface waters via groundwater. A “point source,” of pollution under the CWA is a “discernible, confined and discrete conveyance.” Groundwater is not a point source. RCRA does, however govern this conduct, and the plaintiffs have met the statutory rigors needed to bring such a claim. They have alleged (and supported) an imminent and substantial threat to the environment; they have provided the EPA and Kentucky ninety days to respond to those allegations, and neither the EPA nor Kentucky has filed one of the three types of actions that would preclude the citizen groups from proceeding with their federal lawsuit, so the district court had jurisdiction. View "Kentucky Waterways Alliance v. Kentucky Utilities Co." on Justia Law

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In 2008, plaintiffs filed a class action concerning 540 properties in Dayton’s McCook Field neighborhood, alleging that the groundwater is contaminated with carcinogenic volatile organic compounds, released by defendants’ automotive and dry cleaning facilities. The EPA designated the area as a Superfund site. Plaintiffs have access to municipal drinking water but the contaminated groundwater creates the risk of VOC vapor intrusion into buildings so that Plaintiffs may inhale carcinogenic and hazardous substances. A school was closed and demolished when vapor mitigation systems were unable to adequately contain the levels of harmful substances. After the suit was removed to federal court under the Class Action Fairness Act, 28 U.S.C. 1332(d)(2) and consolidated with related actions, Plaintiffs sought Rule 23(b)(3) liability-only class certification for five of their 11 causes of action—private nuisance, negligence, negligence per se, strict liability, and unjust enrichment. Alternatively, they requested Rule 23(c)(4) certification of seven common issues. The court determined that although the proposed classes satisfied Rule 23(a)’s prerequisites, Ohio law regarding injury-in-fact and causation meant that plaintiffs could not meet Rule 23(b)(3)’s predominance requirement and denied certification of the proposed liability-only classes. The court then employed the “broad view” and certified seven issues for class treatment. The Sixth Circuit affirmed. The certified classes satisfy requirements of predominance and superiority. Each issue may be resolved with common proof and individualized inquiries do not outweigh common questions. Class treatment of the certified issues will not resolve liability entirely, but will materially advance the litigation. View "Martin v. Behr Dayton Thermal Products, LLC" on Justia Law

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In 2008, the National Park Service proposed a trailway through the Sleeping Bear Dunes National Lakeshore in Leelanau County, Michigan. One alternative route ran along Traverse Lake Road. Residents opposed sending visitors down their residential street and submitted objections during the public comment period. In 2009, the Park Service issued a revised proposal, with significant changes to the Traverse Lake Road portion of the trail. No one submitted objections. The Park Service approved the Traverse Lake Road route, making a finding of no significant impact. Six years later, the residents sued, citing the National Environmental Policy Act, 42 U.S.C. 4321. Plaintiffs sought to supplement the administrative record with pictures, maps, and other documents. The court dismissed most of their claims as forfeited because Plaintiffs failed to participate in the planning process in a manner that would alert the Park Service to their objections to the 2009 plan and held that Plaintiffs failed to show exceptional circumstances requiring supplementation of the record. The Sixth Circuit affirmed. Many of Plaintiffs’ objections during the 2008 comment period were sufficient to alert the Park Service to deficiencies in the 2008 Plan, but those comments did not preserve any challenge to the 2009 Plan. The record contains evidence addressing the issues Plaintiffs sought to prove with their supplemental material; the Park Service was not negligent in compiling the 3,005-page administrative record. View "Little Traverse Lake Property Owners Association v. National Park Service" on Justia Law

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The Oak Ridge, Tennessee uranium-enrichment facilities for the Manhattan Project, the World War II effort to build the first atomic bomb, have been inactive since the mid-1980s. The Department of Energy has worked to clean up the hazardous waste and hired Bechtel, a global engineering and construction firm. Bechtel hired Eagle to help decontaminate the complex, which required the demolition of buildings and equipment across the 2,200-acre complex and removal of radioactive nuclear waste, followed by decontamination of the soil and groundwater to make the site safe for redevelopment. Eagle’s work proved significantly more challenging and expensive than either party anticipated. Their contract allowed Bechtel to make changes; if those changes caused Eagle’s costs to increase, Bechtel was to make equitable adjustments in price and time for performance. Eight years after completing its work, Eagle filed suit, seeking compensation for its extra work and for excess waste that Eagle removed. The district court awarded Eagle the full amount of each request, plus interest and attorney’s fees. The Sixth Circuit affirmed the award of damages and attorney’s fees, but remanded so that the court can recalculate the interest to which Eagle is entitled under the Tennessee Prompt Pay Act. View "Eagle Supply & Manufacturing L.P. v. Bechtel Jacobs Co." on Justia Law

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Flint, which previously obtained water from DWSD, decided to join the Karegnondi Water Authority (KWA). The DWSD contract terminated in 2014. Because KWA would take years to construct, Flint chose the Flint River as an interim source. A 2011 Report had determined that river water would need to be treated to meet safety regulations; the cost of treatment was less than continuing with DWSD. Genesee County also decided to switch to KWA but continued to purchase DWSD water during construction. Flint did not upgrade its treatment plants or provide additional safety measures before switching. Residents immediately complained that the water “smelled rotten, looked foul, and tasted terrible.” Tests detected coliform and E. coli bacteria; the water was linked to Legionnaire’s disease. General Motors discontinued its water service, which was corroding its parts. Eventually, the city issued a notice that the drinking water violated standards, but was safe to drink. Subsequent testing indicated high levels of lead and trihalomethane that did not exceed the Safe Drinking Water Act (SDWA) Lead and Copper Rule’s “action level.” The tests indicated that corrosion control treatment was needed to counteract lead levels. The City Council voted to reconnect with DWSD; the vote was overruled by the state-appointed Emergency Manager. The EPA warned of high lead levels; officials distributed filters. Genesee County declared a public health emergency in Flint, advising residents not to drink the water. The Emergency Manager ordered reconnection to DWSD but the supply pipes' protective coating had been damaged by River water. Flint remains in a state of emergency but residents have been billed continuously for water. The Michigan Civil Rights Commission determined that the response to the crisis was “the result of systemic racism.” The Sixth Circuit reversed dismissal, as preempted by SDWA, of cases under 42 U.S.C. 1983. SDWA has no textual preemption of section 1983 claims and SDWA’s remedial scheme does not demonstrate such an intention. The rights and protections found in the constitutional claims diverge from those provided by SDWA. The court affirmed dismissal of claims against state defendants as barred by the Eleventh Amendment. View "Boler v. Earley" on Justia Law

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Nearly 20 years after defendants built, sold, and leased back a Rockport Indiana coal-burning power plant, they committed, in a consent decree resolving lawsuits involving alleged Clean Air Act violations at their other power plants, to either make over a billion dollars of emission control improvements to the plant, or shut it down. The sale and leaseback arrangement was a means of financing construction. Defendants then obtained a modification to the consent decree providing that these improvements need not be made until after their lease expired, pushing their commitments to improve the air quality of the plant’s emissions to the plaintiff, the investors who had financed construction and who would own the plant after the 33-year lease term. The district court held this encumbrance did not violate the parties’ contracts governing the sale and leaseback, and that plaintiff’s breach of contract claims precluded it from maintaining an alternative cause of action for breach of the covenant of good faith and fair dealing. The Sixth Circuit reversed, holding that a Permitted Lien exception in the lease unambiguously supports the plaintiff’s position and that the defendants’ actions “materially adversely affected’ plaintiff’s interests. View "Wilmington Trust Co. v. AEP Generating Co." on Justia Law

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DTE's Monroe plaint is the largest coal-fired power plant in Michigan; in 2010, DTE undertook a $65 million overhaul. The day before construction began, DTE submitted notice to the Michigan Department of Environmental Quality stating that DTE predicted an increase in post-construction emissions 100 times greater than the minimum necessary to constitute a “major modification” and require a preconstruction permit. DTE characterized the projects as routine maintenance,exempt from New Source Review (NSR) under the Clean Air Act, 42 U.S.C. 7475, 7503, and stated that it had excluded the entire predicted emissions increase from its projections of post-construction emissions based on “demand growth.” DTE began construction without an NSR permit. The EPA filed suit. In 2013, the Sixth Circuit held that a utility seeking to modify a source of air pollutants must “make a preconstruction projection of whether and to what extent emissions from the source will increase following construction,” which “determines whether the project constitutes a ‘major modification’ and thus requires a permit.” On remand, the district court again entered summary judgment for DTE, concluding that the EPA had to accept DTE’s projections at face value. The Sixth Circuit reversed. DTE was not required to secure the EPA’s approval of the projections, or the project, before construction, but in proceeding without a permit, DTE acted at its own risk. The EPA can challenge DTE’s preconstruction projections and there are genuine disputes of material fact that preclude summary judgment regarding compliance with NSR’s preconstruction requirements. The court noted that construction is complete and that actual post-construction emissions are irrelevant o whether DTE’s preconstruction projections complied with the regulations. View "United States v. DTE Energy Co." on Justia Law

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In 1949, the federal government deeded a large parcel to the Muskingum Watershed Conservancy District (MWCD), the entity responsible for controlling flooding in eastern Ohio. The deed provided that the land would revert to the United States if MWCD alienated or attempted to alienate it, or if MWCD stopped using the land for recreation, conservation, or reservoir-development purposes. MWCD sold rights to conduct hydraulic fracturing (fracking) operations on the land. Fracking opponents discovered the deed restrictions and, arguing that MWCD’s sale of fracking rights triggered the reversion, filed a “qui tam” suit under the False Claims Act, 31 U.S.C. 3729. alleging that MWCD was knowingly withholding United States property from the government. The Sixth Circuit affirmed dismissal of the claim. The court noted recent legislative amendments that replace a fraudulent-intent requirement in two FCA provisions with a requirement that the defendant acted “knowingly,” but concluded that the plaintiffs failed to state a claim even under the more lenient scienter requirement; they did not specify whether or how MWCD knew or should have known that it was in violation of the deed restrictions, such that it knew or should have known that title to the property reverted to the United States. View "Harper v. Muskingum Watershed Conservancy District" on Justia Law

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In 2012, plaintiffs sued the Tennessee Valley Authority (TVA) for violating the National Environmental Policy Act (NEPA), 42 U.S.C. 4321, by implementing a right-of-way vegetation-maintenance policy without conducting the required environmental review. The policy required TVA to cut down all trees within its right of ways that were 15-feet tall or had the potential to grow to 15 feet. TVA right-of-way specialists previously had discretion over which trees to remove. Plaintiffs claim that this policy change is a “major Federal action[] significantly affecting the quality of the human environment.” The district court found that the new “policy” was merely a clarification of longstanding practices and that 2012 Categorical Exclusion (CE) documentation adequately considered the environmental impact. The Sixth Circuit disagreed. On remand, instead of compiling an administrative record, TVA moved to dismiss the case because TVA had reverted to the practices that were utilized before the introduction of the 15-foot rule. TVA submitted two affidavits stating that the responsible TVA official had suspended use of the policy; plaintiffs introduced evidence indicating that TVA had not abandoned the policy. The district court dismissed. The Sixth Circuit reversed. The record evidence suggests that TVA’s challenged policy has a continuing effect, TVA failed to prove that the NEPA claim is moot. View "Sherwood v. Tennessee Valley Authority" on Justia Law

Posted in: Environmental Law