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

Askins filed a citizen suit alleging that the U.S. Environmental Protection Agency (EPA), the Ohio EPA, and the Ohio Department of Agriculture (ODA) violated the Clean Water Act’s permitting procedures with respect to controlling water pollution caused by certain animal feeding operations, 33 U.S.C. 1251. They alleged that the Ohio EPA failed to inform the EPA that it transferred authority over part of the state’s National Pollutant Discharge Elimination (NPDES) permit program to ODA until five years after it had done so; that ODA administered part of the state-NPDES Program without approval from the EPA; that the EPA permitted Ohio EPA to transfer part of the state-NPDES program without its approval; and that the EPA allowed ODA to administer part of the state-NPDES program without its approval. The district court dismissed for lack of jurisdiction. The Sixth Circuit affirmed, holding that the Clean Water Act does not permit suits against regulators for regulatory functions. View "Askins v. Ohio Dep't of Agric." on Justia Law

After discovering hazardous contaminants at Sanford and Orlando coal gasification plants in the 1990s, the EPA concluded that Florida Power and previous owners were liable for costs of removal and remediation. In 1998 and 2003, Florida Power entered into “Administrative Order by Consent for Remedial Investigation/Feasibility Studies” (AOCs) with the EPA for the sites, under which Power agreed to conduct studies to determine the public safety threat and evaluate options for remedial action. Power agreed to pay the EPA about $534,000 for past response costs at the sites. After the investigation and study at the Sanford site, the EPA entered Records of Decision. In 2009, the court approved a consent decree for actual performance of the Sanford remediation. Regarding the Orlando site, Power submitted a draft Remedial Investigation Report, Risk Assessment, and Remedial Alternative Technical Memorandum that was under EPA review when, in 2011, Power filed this cost recovery and contribution action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 42 U.S.C. 9601) against a successor to a former owner-operator of the sites. The court dismissed, finding that the 1998 and 2003 AOCs were “settlement agreements” and triggered CERCLA’s three-year statute of limitations. The Sixth Circuit reversed, finding that the AOCs did not constitute “administrative settlements.” View "Fla. Power Corp. v. FirstEnergy Corp." on Justia Law

Diageo distills and ages whiskey in Louisville, resulting in tons of ethanol emissions. Ethanol vapor wafts onto nearby property where the ethanol combines with condensation to propagate whiskey fungus. Ethanol emissions are regulated under the Clean Air Act, 42 U.S.C. 7401. Plaintiffs complained to the air pollution control district, which issued a Notice of Violation, finding that Diageo caused and allowed the emission of an air pollutant which crossed its property line causing an injury and nuisance to nearby neighborhoods and the public. Diageo disputed that its operations violated any district regulation. Plaintiffs filed a class action complaint, seeking damages for negligence, nuisance, and trespass, and an injunction. The district court concluded that state common law tort claims were not preempted by the Clean Air Act;” dismissed plaintiffs’ negligence claim on the ground that plaintiffs had not pled facts sufficient to establish that Diageo owed them a duty of care, or that Diageo had breached that duty; and declined to dismiss the remaining causes of action, concluding that plaintiffs had alleged facts sufficient to establish nuisance and trespass. On interlocutory appeal, the Sixth Circuit affirmed, based on the Act’s text, the Act’s structure and history, and relevant Supreme Court precedents. View "Merrick v. Diageo Americas Supply, Inc." on Justia Law

Plaintiffs allege that, beginning in 2008, they have had a persistent film of dust over their properties, coming from Cane Run power plant, which is owned and operated by LGE. Louisville’s Air Pollution Control District, the agency charged with enforcing environmental regulations in Jefferson County, investigated and issued several Notices of Violation concerning particulate emissions and odors, finding finding that LGE allowed fly ash particulate emissions to enter the air and be carried beyond its property line. The NOVs were resolved by an administrative proceeding before Louisville’s Air Pollution Control Board, which resulted in an Agreed Board Order, requiring LGE to implement and comply, with a “Plant-Wide Odor, Fugitive Dust, and Maintenance Emissions Control Plan.” Plaintiffs provided a Notice of Intent to Sue, alleging violations of the Clean Air Act and Resource Conservation and Recovery Act and state-law claims of nuisance, trespass, negligence, negligence per se, and gross negligence. The district court dismissed all federal law claims except the claim that Cane Run was operating without a valid Clean Air Act permit and rejected defendants’ argument that the Clean Air Act preempted plaintiffs’ state common law claims. The Sixth Circuit affirmed, View "Little v. Louisville Gas & Elec. Co." on Justia Law

The Tennessee Valley Authority, a federal agency, operates power plants that provide electricity to nine million Americans in the Southeastern United States, 16 U.S.C. 831n-4(h). Like private power companies, TVA must comply with the Clean Air Act. In 2012, the Environmental Protection Agency told TVA that it needed to reduce emissions from some of the coal-fired units at its plants, including the Drakesboro, Kentucky, Paradise Fossil Plant. TVA considered several options, including maintaining coal-fired generation by retrofitting the Paradise units with new pollution controls and switching the fuel source from coal to natural gas. After more than a year of environmental study, TVA decided to switch from coal to natural-gas generation and concluded that the conversion would be better for the environment. TVA issued a “finding of no significant impact” on the environment stemming from the newly configured project. The district court denied opponents a preliminary injunction, and granted TVA judgment on the administrative record. The Sixth Circuit affirmed, rejecting arguments that TVA acted arbitrarily in failing to follow the particulars of the Tennessee Valley Authority Act for making such decisions, and in failing to consider the project’s environmental effects in an impact statement under the National Environmental Policy Act. View "Ky. Coal Ass'n, Inc. v. Tenn. Valley Auth." on Justia Law

Herr bought waterfront property on Crooked Lake in the Upper Peninsula of Michigan and planned to use their gas-powered motorboat on it. The U.S. Forest Service threatened to enforce a regulation (36 C.F.R. 293.6) that bans non-electric motorboats from the 95 percent of the lake that falls within the Sylvania National Wilderness Area. Herr sought and injunction on the ground that the Forest Service’s authority over Crooked Lake is “[s]ubject to valid existing rights,” Michigan Wilderness Act, 101 Stat. 1274, 1275. The district court held that a six-year time bar on the action was jurisdictional and that Herr had waited too long to file this lawsuit. The Sixth Circuit reversed, citing a 2015 Supreme Court decision, United States v. Kwai Fun Wong, and stating that the statute contains no language suggesting that the limitations period starts when a plaintiff’s predecessor in interest could first file a lawsuit. When a party first becomes aggrieved by a regulation that exceeds an agency’s statutory authority more than six years after the regulation was promulgated, that party may challenge the regulation without waiting for enforcement proceedings. View "Herr v. U.S. Forest Serv." on Justia Law

The Judicial Panel on Multi-District Litigation consolidated challenges, by 18 states, to the 2015 Clean Water Rule adopted by the U.S. Army Corps of Engineers and the Environmental Protection Agency, which clarifies the definition of “waters of the United States,” as used in the Clean Water Act, 33 U.S.C. 1251., “through increased use of bright-line boundaries.” The Sixth Circuit granted a stay of enforcement. The court noted a pending jurisdictional issue, concluded that the states acted without undue delay, and held that the status quo is the pre-Rule regime of federal-state collaboration that has been in place since the Supreme Court’s 2006 decision, Rapanos v. United States. The states have demonstrated a substantial possibility of success on the merits; the rulemaking process by which the Rule’s distance limitations were adopted is “facially suspect.” While there is no compelling showing that any state would suffer immediate irreparable harm of interference with state sovereignty, or unrecoverable expenditure of resources, in endeavoring to comply with the new regime, absent a stay, there is also no indication that the integrity of the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented. The “sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.” View "State of Ohio v. U.S. Army Corps of Eng'rs" on Justia Law

KIF is a Tennessee coal-fired plant generating electricity. In 2008, a KIF coal-ash containment dike failed, spilling 5.4 million cubic yards of coal-ash sludge over 300 acres of adjacent land. The Tennessee Valley Authority (TVA) and the Environmental Protection Agency (EPA) responded, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the National Oil and Hazardous Substances Pollution Contingency Plan. EPA delegated authority to TVA, 42 U.S.C. 9604(a)-(b). TVA engaged Jacobs as the prime contractor for planning and oversight of remediation. Jacobs provided a Site Wide Safety and Health Plan that applies to all construction at the site, and to CERCLA remediation activities in accordance with EPA’s Standard Operating Safety Guide. The Plaintiffs worked on the KIF remediation and, in 2013, sued, alleging that Jacobs improperly monitored fly ash; inadequately trained workers about hazards of inhaling toxic fly ash; inadequately monitored their medical conditions; denied requests for respirators and dust masks; exposed them to high concentrations of flyash toxic constituents; and fraudulently concealed that exposure. The district court dismissed for lack of subject-matter jurisdiction, concluding that Jacobs was entitled to government-contractor immunity as a corollary of the discretionary-function exception to the Tort Claims Act, 28 U.S.C. 2674. The Sixth Circuit reversed, finding that such immunity is not jurisdictional and that the court should have considered a motion to dismiss for failure to state a claim. View "Adkisson v. Jacobs Eng'g Grp, Inc" on Justia Law

The “Swampbuster” provisions of the Food Security Act deny certain farm-program benefits to persons who convert a wetland for agricultural purposes, 16 U.S.C. 3821. Smith challenged the USDA’s determination that Smith had converted 2.24 acres of wetland and was, therefore totally ineligible for benefits. Smith claimed that the Department erred in failing to: analyze whether his purported conversion would have only a minimal effect on surrounding wetlands, a finding that would exempt him from ineligibility; consider factors that would reduce his penalties; and exempt Smith’s parcel because it was originally converted and farmed before the enactment. The district court denied relief. The Sixth Circuit reversed, noting that, while this case only involves 2.24 acres, it has ramifications for thousands of corn and soybean farmers. The USDA had signed a mediation agreement with Smith, permitting him to plant the parcel in the spring and cut down trees so long as Smith did not remove stumps; USDA never argued that Smith intentionally violated this agreement, but permanently deprived him of benefits, in disregard of its own regulations. That Smith’s stance on mitigation may have “colored” the agency’s relationship with him does not mean that USDA is entitled to ignore minimal-effect evidence and a penalty-reduction request. View "Maple Drive Farms Ltd. P'ship v. Vilsack" on Justia Law

St. Marys makes portland cement at a plant in Charlevoix. The Michigan Department of Natural Resources and Environment deemed the plant’s pollution controls sufficient and excused St. Marys from the retrofitting requirement under the Clean Air Act’s Regional Haze Rule, 40 C.F.R. 51.308–.309, which requires the states to determine which facilities within their borders create visibility-impairing pollutants that may “be emitted and transported downwind” to a federal park or wilderness area. States then must decide which of those sources are eligible for “Best Available Retrofit Technology.” The U.S. Environmental Protection Agency disagreed with the state and required the plant to add more stringent pollution controls. The Second Circuit upheld the EPA decision, rejecting challenges to EPA’s scientific and technological assertions concerning the plant’s nitrous oxide emissions, and a claim that St. Marys was exempt from the retrofitting requirement. View "St. Marys Cement Inc. v. Envtl. Protection Agency" on Justia Law