Justia U.S. 6th Circuit Court of Appeals Opinion Summaries

Articles Posted in Environmental Law
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Ohio and Tennessee filed suit in 2015 to enjoin the Clean Water Rule, which purported to interpret the phrase “waters of the United States,” as used in the Clean Water Act, 33 U.S.C. 1362(7), and, in 2018, sought a preliminary injunction against the Rule’s enforcement within their borders. In a 2018 Rule, the EPA and the Army Corps of Engineers suspended enforcement of the 2015 Rule; the Agencies gave notice of their intent to repeal (rather than merely suspend) the 2015 Rule. In 2019, the court denied the states’ motion with respect to the 2015 Rule on the ground that, suspended or not, the states had not shown a likelihood of imminent, irreparable harm. The Agencies formally repealed the 2015 rule. In 2020 they replaced the 2015 Rule with the “Navigable Waters Protection Rule.”The Sixth Circuit dismissed the states’ appeal as moot. Since the district court’s decision, the Agencies have repealed and replaced the rule that the states sought preliminarily to enjoin. The Agencies have already provided the states with relief; a preliminary injunction against the 2015 Rule’s enforcement in Ohio and Tennessee would lack any practical effect. There is no reasonable possibility that the 2015 Rule will again become effective in Ohio or Tennessee while this case remains pending. View "Ohio v. United States Environmental Protection Agency" on Justia Law

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The City of Flint and city and state officials allegedly caused, sustained, and covered up the poisoning of the people of Flint. Plaintiffs filed a 2017 “Master Complaint,” containing the allegations and claims made by plaintiffs across the coordinated litigation; “short-form” complaints charted certain components of the Master Complaint, including named defendants, alleged injuries, and claims. In this case, the district court declined to dismiss all defendants other than former State Treasurer Andy Dillon.Earlier in 2020, the Sixth Circuit, in "Waid," decided that the same officials who are defendants in this case plausibly violated plaintiffs’ substantive due process right to bodily integrity and are not entitled to qualified immunity and rejected Flint’s and Michigan Governor Whitmer’s arguments that the Eleventh Amendment required their dismissal. Defendant Johnson argued that the allegations against him in this case differently than those levied against him in Waid. The court concluded that there is no reason to treat Johnson differently. The Sixth Circuit affirmed, rejecting an argument that higher-ups should be treated differently than officials making decisions on the ground. . View "In re Flint Water Cases" on Justia Law

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For more than 60 years, Line 5 has carried oil from northwestern Wisconsin, across Michigan's Upper Peninsula, across the Straits of Mackinac, through the Lower Peninsula, ending in southwestern Ontario. The Clean Water Act requires oil pipeline operators to submit response plans to address the risk of a potential oil spill, 33 U.S.C. 1321(j)(5)(A)(i). The Act provides that the administering agency “shall . . . approve any plan” that satisfies six enumerated criteria. Over the past five years, Line 5’s operator (Enbridge) has submitted two response plans. The Pipeline and Hazardous Materials Safety Administration evaluated the plans, determined each met the enumerated criteria, and approved both. The National Wildlife Federation sued. The district court found that the response plans satisfied the enumerated criteria but granted the Foundation summary judgment, holding that the agency had to comply with the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA).The Sixth Circuit reversed. ESA's requirement that federal agencies consult with the appropriate environmental authorities in order to ensure that the action is not likely to jeopardize the continued existence of any endangered or threatened species, 16 U.S.C. 1536(a)(2), and NEPA's requirement that federal agencies prepare an environmental impact statement for major federal actions that will affect the environment, 42 U.S.C. 4332(C), apply only to discretionary actions. Although the agency exercises “judgment” in applying the Clean Water Act criteria, its actions are not discretionary. View "National Wildlife Federation v. Secretary of the United States Department of Transportation" on Justia Law

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Goodrich operated chemical-manufacturing plants at a Calvert City, Kentucky industrial site. In 1988, the Environmental Protection Agency designated the site a “Superfund Site” subject to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601. PolyOne and Westlake disputed their share of the cleanup costs. The parties entered a settlement agreement in 2007: PolyOne must reimburse Westlake for 100% of “allocable costs,” and every five years, either party may demand arbitration to modify the amount or allocation of costs. Either party may file a complaint in federal court for a “de novo judicial determination” of which costs are allocable after the arbitration panel has issued an award. The arbitration award becomes null-and-void upon the filing of a complaint; the Agreement prohibits either party from even admitting the arbitration award into evidence. PolyOne requested a declaration that the judicial-relief provision is invalid under the Federal Arbitration Act (FAA), 9 U.S.C. 9 and that the Agreement’s other arbitration provisions are unenforceable. The Sixth Circuit affirmed the denial of injunctive and declaratory relief. PolyOne has a strong case but its prior conduct does not align with its present position. Twice, PolyOne demanded arbitration. PolyOne seeks to enjoin the very arbitration it demanded in 2017. The court withheld judgment on whether PolyOne has waived its ability to challenge the arbitration provisions in the future. View "PolyOne Corp. v. Westlake Vinyls, Inc." on Justia Law

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The Clean Air Act directs the Environmental Protection Agency (EPA) to establish National Ambient Air Quality Standards (NAAQS) for certain air pollutants, 42 U.S.C. 7409. Each state must propose a state implementation plan (SIP) that “specif[ies] the manner in which national . . . ambient air quality standards will be achieved and maintained” for approval by the EPA. A 1990 CAA amendment set a national Reid Vapor Pressure (RVP) standard for gasoline. In 2004, the EPA informed Michigan that eight counties in southeast Michigan were “nonattainment” areas for the ozone NAAQS. In response, Michigan enacted the “Summer Fuel Law” to limit the RVP for gasoline sold during the summer months within those eight counties. After concluding that the revised RVP standards were “necessary” for the attainment of the ozone NAAQS, the EPA approved the incorporation of the Summer Fuel Law into Michigan’s SIP. Ammex unsuccessfully sought a preliminary injunction to prevent the Michigan Department of Agriculture and Rural Development from enforcing the Summer Fuel Law, arguing that the standard violates the Supremacy Clause and dormant Foreign Commerce Clause of the United States Constitution. The Sixth Circuit affirmed the denial of the motion. MDARD’s enforcement of the standard is the enforcement of federal law. View "Ammex, Inc. v. Wenk" on Justia Law

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As a cost-saving measure, Flint's municipal water supply was switched from the Detroit Water and Sewerage Department (DWSD) to the Flint River and was processed by an outdated and previously mothballed water treatment plant, with the approval of Michigan regulators and an engineering firm, and distributed without adding chemicals to counter the river water’s known corrosivity. Within days, residents complained of foul smelling and tasting water. Within weeks, some residents’ hair began to fall out and their skin developed rashes. Within a year, there were positive tests for E. coli, a spike in deaths from Legionnaires’ disease, and reports of dangerously high blood-lead levels in Flint children. The river water was 19 times more corrosive than the Lake Huron water pumped supplied by DWSD; without corrosion-control treatment, lead leached out of the lead-based service lines. The district court dismissed many claims and defendants in a suit by residents. The remaining defendants appealed with respect to the remaining 42 U.S.C. 1983 claim--that defendants violated their right to bodily integrity as guaranteed by the Substantive Due Process Clause. The Sixth Circuit concluded that plaintiffs pled a plausible Due Process violation regarding some defendants, rejecting their qualified immunity claims. The court reversed as to other defendants; plaintiffs alleged mere negligence, not a constitutional violation, against them. The court rejected a claim that the city was entitled to Eleventh Amendment immunity based on Michigan's takeover of the city under the “Emergency Manager” law. View "Guertin v. Michigan" on Justia 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