Articles Posted in Environmental Law

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The Environmental Protection Agency designated Williamson County, Illinois, as a nonattainment area for national air quality standards for sulfur dioxide. The rule is not limited to Williamson County; it makes attainment designations for 61 geographic areas spanning 24 states. Southern Illinois Power Cooperative sought judicial review. The EPA moved to dismiss or transfer the petition to the D.C. Circuit under the terms of the judicial-review provision of the Clean Air Act, which designates that circuit as the exclusive venue for review of “nationally applicable” agency actions. 42 U.S.C. 7607(b)(1). The Seventh Circuit agreed that the challenged rule is nationally applicable and transferred the petition to the D.C. Circuit. The court noted that its decision conflicts with its 1993 decision, Madison Gas & Electric Co. v. EPA, which it overruled. View "Southern Illinois Power Cooperative v. Environmental Protection Agency" on Justia Law

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Because the state proposed to use federal highway funds to widen Wisconsin Route 23, the U.S. Department of Transportation (USDOT) issued an environmental impact statement (EIS). USDOT made a record of decision (ROD) permitting the use of federal funds. Opponents filed suit. The court denied a request for an injunction because Wisconsin can proceed using its own money regardless of whether USDOT satisfied the requirements for a federal contribution, but set aside the ROD, finding that the statement projecting 2035 traffic loads had not adequately disclosed all assumptions. USDOT issued a revised EIS with additional details about how the traffic estimates had been generated. The district court reiterated the order vacating USDOT’s ROD. The judge stated that plaintiff was entitled to a declaratory judgment but neglected to issue one. The order setting aside the ROD was appealed by the Wisconsin Department of Transportation. The Seventh Circuit dismissed an appeal. USDOT did not appeal. Wisconsin remains free to continue the project at the state’s expense. The National Environmental Policy Act, on which the suit rests, applies only to the national government, 42 U.S.C. 4332(2)(C). Wisconsin cannot seek relief against a judgment that does not bind it. Wisconsin does not contend that USDOT had a statutory duty to fund the project, to prepare a better EIS, or to appeal the decision. View "1000 Friends of Wisconsin, Inc v. Wisconsin Department of Transportation" on Justia Law

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In the 1990s, the EPA and the Wisconsin Department of Natural Resources investigated the Lower Fox River's contamination by polychlorinated biphenyls and developed a cleanup plan under the Comprehensive Environmental Response, Compensation, and Liability Act. The final plan proposed cleanup in stages, by dredging and capping at an estimated cost of $700 million. Under CERCLA, the parties (PRPs) responsible for the contamination are required to pay for remediation. Paper manufacturers NCR and Appvion have funded the cleanup. Other companies, including Glatfelter, also were named as PRPs and agreed to perform remedial work. In 2007, the EPA ordered the PRPs to begin remedial work in the final units. NCR and Appvion undertook remedial efforts, then sued other PRPs, including Glatfelter. In 2014, the Seventh Circuit remanded that cost recovery action, which remains pending. Glatfelter sought discovery relating to Appvion’s costs from Appvion and Windward (an English entity, conducting Appvion’s defense). Glatfelter issued a subpoena to Windward at its attorney’s address. Windward’s counsel claimed that Windward was not subject to the jurisdiction of the U.S. federal courts. Glatfelter then instituted an ancillary proceeding. The district court denied the motion to compel. The Seventh Circuit dismissed appeals for lack of jurisdiction; a discovery order in an ancillary proceeding is not subject to interlocutory appeal when entered by the same district court that is presiding over the main action. View "P.H. Glatfelter Co. v. Windward Prospects Ltd." on Justia Law

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O’Malley is serving 10 years in prison for violating the Clean Air Act by improperly removing and disposing of insulation containing regulated asbestos, 42 U.S.C. 7413(c)(1). After the Seventh Circuit upheld his convictions on direct appeal, O’Malley filed what he called a motion under Federal Rule of Criminal Procedure 33(b)(1) for a new trial based on newly discovered evidence. That rule authorizes a district court to grant a timely request for a new trial “if the interest of justice so requires.” The district court concluded that O’Malley’s submission contained constitutional theories that, the court reasoned, are incompatible with Rule 33 and cognizable only under 28 U.S.C. 2255 and that the remainder of O’Malley’s motion could not entitle him to relief under Rule 33, because the new evidence, purportedly discrediting a prosecution witness, was not material. The Seventh Circuit vacated, concluding that the entirety of O’Malley’s submission was within the scope of Rule 33(b)(1) even if his theories overlap with section 2255 and that the district court should have respected his choice between these available means of relief. View "United States v. O'Malley" on Justia Law

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Study of the I-69 extension between Evansville and Indianapolis began in 1944. The 1991 Intermodal Surface Transportation Act designated a new route from Indianapolis to Memphis,, via Evansville as a “high priority corridor” for development. As the project progressed, the Federal Highway Administration (FHWA) divided the project into two “tiers” for environmental analysis. After the plans were finalized, construction work on the six sections of Tier 2 began; 90 percent of the work on the extension is complete. The FHWA and Indiana Department of Transportation issued a Draft Environmental Impact Statement for Tier 2, Section 4, in 2010. A Final Environmental Impact Statement and a Record of Decision issued in 2011. The agencies selected the final route and construction plan for Section 4 after reviewing 48 options and produced a record reflecting consideration of impact on historic sites, geological formations, and air-quality, among other factors. Pursuant to its obligations under the Endangered Species Act, the U.S. Fish and Wildlife Service engaged in consultation and issued a Biological Opinion regarding the possible impact of tree-clearing on the endangered Indiana bat. Opponents filed suit. After a lengthy period of inactivity by Plaintiffs, including several missed case management deadlines, the district court granted summary judgment upholding the approvals. The Seventh Circuit affirmed. View "Citizens for Appropriate Rural Roads v. Foxx" on Justia Law

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FutureGen sought to use carbon capture and storage to develop the world’s first near‐zero emissions coal power plant in Morgan County, Illinois. Geologic sequestration, part of the process of carbon capture and storage, involves injection of carbon dioxide into deep subsurface rock formations for storage, to reduce carbon dioxide emissions to the atmosphere and mitigate climate change. Injection activities are prohibited until authorized by permit under 40 C.F.R. 144.31. In 2013 FutureGen sought permits to construct four Class VI underground injection control wells and inject approximately 22 million metric tons of carbon dioxideover a 20‐year period. The EPA issued draft permits in 2014. Landowners submitted written comments challenging the permits during the public comment period. The Environmental Appeals Board denied an appeal. The EPA issued final permits in 2015. The U.S. Department of Energy then suspended funding for the FutureGen project authorized by the permits. After exhausting avenues to reinstate funding, FutureGen determined that it would not proceed with the project. After the EPA and FutureGen submitted confirmed that the permits have expired, the Seventh Circuit dismissed an appeal as moot. View "DJL Farm LLC v. Envt'l Protection Agency" on Justia Law

Posted in: Environmental Law

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In 1920 Peoples Gas and Beazer’s predecessor entered into a contract, Beazer agreed to to operate a plant for coke by-products and carbureted water gas (Chicago Coke), at Crawford Station, Chicago, using its patented coke-oven technology. Peoples agreed to purchase all of the gas and coke manufactured at the plant for distribution to consumers. Chicago Coke opened in 1921. Seven years later, Peoples acquired its assets. Later, Peoples purchased Coke’s stock and took over operations until 1956. Some of the land is still owned by Peoples. Peoples worked with the U.S. EPA and the Illinois EPA to investigate environmental contamination at the Crawford site and entered into agreements with the EPA. For investigation and removal at Crawford, Peoples incurred over $70,000,000 in costs. Peoples sued Beazer to recover costs under CERCLA, 42 U.S.C. 9607(a) and 42 U.S.C. 9613(f)(3)(B). The district court dismissed in part, finding that Peoples had resolved its liability to the government via administrative settlement and, therefore, only had a claim for contribution; that each consent order was subject to the three-year limitations period under 42 U.S.C. 9613(g)(3)(B); and that a contribution claim under the 2011 consent order was barred by Beazer’s operator liability. The court denied Beazer’s motion as to claim ownership liability. The Seventh Circuit affirmed: the 1920 agreement bars Peoples’ contribution claims against Beazer. View "Peoples Gas Light & Coke Co, v. Beazer East Inc." on Justia Law

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Textron began operations at its fastener manufacturing plant in Rochester, Indiana, in 1954; it remained in operation through 2006. The plant released vinyl chloride, a toxic gas, which eventually seeped into the groundwater, contaminating nearby residential wells. One of those wells belonged to the Woods. Both Textron and the Indiana Department of Environmental Management performed testing on the Woods’ well. The family left immediately. While living at the Rochester house, their adopted children, C.W. and E.W., experienced gastrointestinal issues (vomiting, bloody stools), immunological issues, and neurological issues. Both children were younger than two years old when the family left the house; their health improved after leaving. The parents sued on behalf of their children, alleging negligence, negligence per se, negligent infliction of emotional distress, and willful and wanton misconduct. The court excluded their three expert witnesses, finding they did not use reliable bases to support their opinions, and granted Textron summary judgment. The Seventh Circuit affirmed, finding that the district court properly applied the Daubert framework to the experts and, without the experts, the plaintiffs could not prove causation. View "C.W. & E.W. v. Textron, Inc." on Justia Law

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Under the Clean Air Act (CAA), 42 U.S.C. 7401, the EPA sets the maximum permissible atmospheric concentrations for harmful air pollutants, including ozone and classifies geographic areas as “attainment” or “nonattainment.” Each state drafts a State Implementation Plan (SIP) for each pollutant, identifying how it seeks to achieve or maintain attainment. SIPS and their revisions must be approved by EPA. If an area is in nonattainment for ozone, the SIP must include an automobile emissions testing program that meets certain performance standards. Illinois previously tested emissions of vehicles from all model years; that program was included in its SIP. Illinois exempted pre-1996 model-year vehicles that met certain standards, effective in 2007, but did not seek EPA approval until 2012. Indiana objected to the proposed change. EPA approved Illinois’s SIP revision in 2014. Indiana sought review, arguing that the change will decrease the likelihood that the “Chicago area,” which includes two Indiana counties, will achieve attainment with regard to ozone in the near future. Indiana provided analysis, indicating that Illinois’s (unauthorized) relaxation of testing procedures after 2007 caused a Chicago-area violation of the national ozone standard in 2011. The Seventh Circuit held that Indiana had standing, but that EPA did not act arbitrarily and capriciously in approving the SIP revision. View "Indiana v. Envtl. Prot. Agency" on Justia Law

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Monsanto operated chemical plants and disposed of waste, including PCBs, at sites within Sauget Area 1. In 1999, the government filed suit under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), to recover EPA costs in removing hazardous substances from Area 1, which follows Dead Creek through Sauget and Cahokia, Illinois. Monsanto (later Pharmacia) and Solutia, original defendants, filed a third-party complaint adding Rogers, which formerly operated trucking depots near Area 1, alleging that Rogers washed trucks after hauling hazardous substances, releasing substances into drainage systems that emptied into Dead Creek. The government added Rogers as a defendant, and other defendants brought cross-claims. In 2003, the court dismissed other claims against Rogers because it had been found not liable on the government’s claim under 42 U.S.C. 9607. In 2007, the Supreme Court decided “Atlantic Research,” establishing that potentially responsible parties that incur voluntary CERCLA cleanup costs may seek contribution from other potentially responsible parties. Four defendants filed an amended cross-claim; Rogers filed counterclaims, alleging that Monsanto had arranged for transport and disposal of hazardous substances without informing Rogers of the nature of the substances involved. The four settled, with Rogers paying $50,000 if it cooperated in efforts to recover the difference from its insurer. The settlement released all claims “brought or alleged, or which could have been brought or alleged” in the EPA action. The agreement contemplated that cleanup of Rogers’s depot would be paid for out of settlement proceeds. Rogers leased that land from ConocoPhillips, which filed a separate action against Rogers, seeking contribution for its voluntary cleanup costs. Rogers filed a third-party complaint against Pharmacia and Solutia. The Seventh Circuit affirmed the subsequent dismissal, finding the claim barred, by the settlement, and sanctions against Rogers. View "Rogers Cartage Co. v. Monsanto Co." on Justia Law