Justia Civil Procedure Opinion Summaries

The Environmental Protection Agency extended the deadline for compliance with a revised national drinking water regulation, which in turn extended the deadline for states to enforce conforming revisions to their own regulations. Five states seek to challenge the federal extension, which they say will cause them various harms.   The DC Circuit dismissed the petition for review for lack of Article III standing. The court explained that the states’ uncertainty also is not redressable in this litigation. Their harm is not knowing what future obligations they will face, making it difficult to plan. But the Delay Rule gives the states more time to hedge their bets. Setting it aside would worsen any problem of regulatory uncertainty, taking as a given EPA’s unreviewable decision to consider changes to the Revision Rule. View "State of Arizona v. EPA" on Justia Law

Fisheries Reform Group alleges that shrimp trawlers operating in North Carolina’s Pamlico Sound are violating the Clean Water Act by engaging in two types of unpermitted activity: throwing bycatch overboard and disturbing sediment with their trawl nets.   The Fourth circuit affirmed the district court’s dismissal of Fisheries’ complaint. The court explained that though the Clean Water Act’s includes the term “biological materials” in its definition of “pollutant,” that is not clear authorization for the EPA to regulate bycatch under the Act. So Fisheries Reform Group’s first claim— that shrimpers are violating the Clean Water Act by discarding bycatch overboard without a Section 1342 permit—was properly dismissed. The court further explained that Fisheries’ second claim—that shrimpers are violating the Act by using trawl nets without a permit—fares no better. The shrimpers are not “dredging” the Pamlico Sound with their nets, so they cannot be discharging “dredged spoil.” And the dirt and sand that their nets kick up is not “added”—and thus not “discharged”—into the Sound. View "North Carolina Coastal Fisheries Reform Group v. Capt. Gaston LLC" on Justia Law

Several cities in Minnesota alleged that a chemical in refined coal tar that was used in pavement sealants contaminated their stormwater ponds. They filed an action seeking damages from refiners and manufacturers of the tar. The “refiner” defendants take raw coal tar and refine it into a product used by the “manufacturer” defendants to create pavement sealants. The district court dismissed all of the claims against the refiners and dismissed all but three of the claims against the manufacturers. The Cities moved under Federal Rule of Civil Procedure 54(b) for entry of final judgment against the refiners. The district court, however, denied the motion because the Cities had not “demonstrated a danger of hardship or injustice through delay which would be alleviated by immediate appeal.” The Cities then entered into an agreement with the manufacturers, which provided that the Cities would conditionally dismiss their claims against the manufacturers. The Cities then appealed the district court’s decision dismissing claims against the refiners, and some of the refiners cross-appealed.   The Eighth Circuit dismissed the appeal for lack of jurisdiction. The court concluded that this conditional dismissal of the Cities’ claims against the manufacturers does not create a final decision under 28 U.S.C. Section 1291. The whole purpose of pairing the voluntary dismissal with the tolling agreement was to provide for reinstatement of the claims in the event of reversal—that is, to make the dismissal conditional. The court wrote that its only power to prevent the manipulation of appellate jurisdiction is a rigorous application of the final judgment requirement. View "City of Burnsville v. Koppers, Inc." on Justia Law

Defendants are the City of Niagara Falls ("Niagara Falls"), its water board, and various companies (collectively, "Defendants") tasked with remediation of hazardous waste disposal sites under the Comprehensive Environmental Response, Compensation, and Liability Act ("Superfund"). Plaintiffs -- members of three families residing in Niagara Falls -- brought this action in the State of New York Supreme Court, County of Niagara, in 2012, seeking damages arising from purported deficiencies in Defendants' remediation of one Superfund site, the Love Canal. Between 2013 and 2017, 18 identical complaints were filed by other plaintiffs. In 2013, Defendants removed two of the 19 cases -- including this one -- to the court below on the basis of federal question jurisdiction, but the district court remanded the cases to state court. The cases remained in state court until 2020 when Plaintiffs in all 19 cases filed identical amended complaints. The amended complaints alleged additional sources of injury. Defendants again removed the 19 cases, this time on the basis of both federal officer and federal question jurisdiction. The district court held that the removal was untimely and again remanded the cases to state court. Defendants appealed.   The Second Circuit affirmed. The court explained that Plaintiffs continue to allege the same injuries against the same Defendants, caused by the same toxins, and resulting in the same damages. The amended complaint highlighted only additional sources of already-alleged injury. The changes in Plaintiffs' pleadings 20 are not substantial, and the amendments did not result in essentially new lawsuits. View "Abbo-Bradley, et al. v. City of Niagara Falls, et al." on Justia Law

Twenty-eight individuals and businesses commenced this citizen suit under the Resource Conservation and Recovery Act (“RCRA”), which creates a private right of action against any entity that has “contributed . . . to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” Plaintiffs complained of elevated levels of radiation detected on their land and seek to hold responsible three entities that operated nearby chemical plants during the twentieth century. The district court dismissed their complaints, holding, among other things, that the radioactive materials found on the plaintiffs’ properties fall outside the scope of RCRA because they were recycled industrial byproducts rather than discarded waste. Defendants raised a host of additional arguments in support of dismissal.   The Second Circuit affirmed in part, vacated in part, and remanded. The court explained that as to Defendants Union Carbide Corporation and Occidental Chemical Corporation, the complaint plausibly alleged the elements of a citizen suit under RCRA, or the Plaintiffs have identified extrinsic evidence that may render amendment fruitful. However, as against defendant Bayer CropScience Inc., there are no particularized allegations from which liability can reasonably be inferred. The court reasoned that there is one probative allegation implicating Bayer: Stauffer’s Lewiston plant was located within 2,000 feet of the Robert Street properties and within a mile of four of the Plaintiffs’ other properties. But proximity alone is insufficient to make Bayer’s contribution plausible. View "Talarico Bros. Bldg. Corp., et al. v. Union Carbide Corp., et al." on Justia Law

Sinclair Wyoming Refining Company petitioned the Tenth Circuit Court of Appeals under the Clean Air Act and the Administrative Procedure Act to challenge an email from an Environmental Protection Agency (“EPA”) official denying the return of its Renewable Identification Numbers (“RINs”) that it had deposited with EPA when it was not exempted from the Renewable Fuel Standard program for the year 2018. Because the email was not a final agency action, the Court dismissed the petition for lack of jurisdiction. View "Sinclair Wyoming v. EPA" on Justia Law

The Forest Service developed the Project to replace trees infested with laminated root rot and bark beetles with disease-resistant ones. In May 2016, the Service contracted with T2, a private company, for logging to implement the decision. The Service issued a revised Environmental Assessment (“EA”) in July 2020 and a revised decision notice in December 2020. BMBP filed this action challenging the 2020 decision notice. The Service filed an administrative record (“AR”) in 2021.   The Ninth Circuit affirmed the district court’s summary judgment in favor of the U.S. Forest Service. The panel first addressed BMBP’s argument that the AR was incomplete. First, BMBP argued that deliberative materials were part of the “whole record” and that a privilege log was required if they were not included in the AR. The panel held that deliberative materials are generally not part of the AR absent impropriety or bad faith by the agency. Because deliberative materials are not part of the administrative record, to begin with, they are not required to be placed on a privilege log. The district court did not abuse its discretion by declining to order the production of a privilege log. Second, BMBP argued that all documents in the 2016 AR should be in the AR for this case. BMBP contended that the documents in the 2016 AR were necessary before the agency in the 2020 process because the Project was a continuation of the withdrawn one. The panel held that BMBP’s arguments failed to overcome the presumption of regularity. View "BMBP V. SHANE JEFFRIES, ET AL" on Justia Law

United States Court of Appeals for the Fifth Circuit certified a question of law to the Louisiana Supreme Court. The questions related to claims made by Kirk Menard, who worked as an environmental, safety, and health specialist at Targa Resources, LLC’s Venice, Louisiana plant. His job duties included ensuring Targa complied with various state and federal environmental and safety standards. Menard reported to two individuals: his “official supervisor,” David Smith, who resided at another facility, and an “indirect supervisor,” Ted Keller, who served as an area manager for the Venice plant. Menard’s indirect supervisor, in turn, reported to Perry Berthelot, a Targa District Manager. In a conference call, Menard reported that the total suspended solids in certain recent water samples exceeded regulatory limits. At the end of the call, Berthelot told Menard to call him back to discuss the plan for rectifying these exceedances. Menard obliged, and he alleged Berthelot told him he should dilute the sewage samples with bottled water. Menard claimed that in response he nervously laughed and said, “no, we’re going to correct it the right way.” The federal appellate court asked the Louisiana Supreme Court: (1) whether refusals to engage in illegal or environmentally damaging activities were “disclosures” under the current version of the Louisiana Environmental Whistleblower Statute ("LEWS"); and (2) whether LEWS afforded protection to an employee who reports to his supervisor an activity, policy, or practice of an employer which he reasonably believes is in violation of an environmental law, rule, or regulation, where reporting violations of environmental law, rules, or regulations, is a part of the employee’s normal job responsibilities. The Supreme Court responded in the affirmative to both questions. View "Menard v. Targa Resources, L.L.C." on Justia Law

According to allegations in the complaint, for over forty years, Monsanto was the only U.S. manufacturer of polychlorinated biphenyls (“PCBs”). The federal government and states spent enormous sums cleaning up PCB environmental contamination. The State of Delaware alleged Monsanto knew that the PCBs it produced and sold to industry and to consumers would eventually be released into the environment and would cause lasting damage to public health and the State’s lands and waters. The State brought this action to hold Monsanto responsible for its cleanup costs, asserting claims for public nuisance, trespass, and unjust enrichment. A Delaware superior court dismissed the complaint, reasoning that even though the State alleged Monsanto knew for decades PCBs that were toxic and would contaminate the environment for generations, the State: (1) could not assert a public nuisance claim or trespass claim because Monsanto manufactured PCB products, which entered the environment after sale to third parties; (2) State did not have standing to bring a trespass claim because it held public lands in trust rather than outright and therefore did not have the exclusive possession of land needed to assert a trespass claim; (3) the superior court held it lacked subject matter jurisdiction to hear the unjust enrichment claim as a standalone claim; and (4) the State could not use an unjust enrichment claim to recover future cleanup costs. The Delaware Supreme Court found the State pled sufficiently that even though Monsanto did not control the PCBs after sale it substantially participated in creating the public nuisance and causing the trespass by actively misleading the public and continuing to supply PCBs to industry and consumers knowing that PCBs were hazardous, would escape into the environment after sale to third parties, and would lead to widespread and lasting contamination of Delaware’s lands and waters. Further, the Supreme Court found the State alleged that it owned some land directly and therefore had exclusive possession of that land needed to assert a trespass claim. The Court affirmed in all other respects, and remanded the case for further proceedings. View "Delaware v. Monsanto Company" on Justia Law

Methane is considered the most dangerous gas in underground mining; in sufficient concentrations, methane can ignite and cause a potentially catastrophic explosion. To protect worker safety, Mine Safety and Health Administration (MSHA) regulations thus require miners to deenergize equipment and cease work when they detect certain methane concentrations. But during the methane inundation at the Francisco mine the miners did not stop work. They instead continued operating an energized drill, trying to stop the flow of methane. MSHA issued two orders citing the mine operator, Peabody Midwest Mining, LLC, for violating the applicable safety regulations and designated those violations as unwarrantable failures. It also individually cited the mine’s manager as Peabody’s agent. An administrative law judge and then the Federal Mine Safety and Health Review Commission agreed with MSHA that Peabody violated MSHA safety regulations, that those violations constituted unwarrantable failures, that mine manager was individually liable, and that civil penalties were appropriate. Peabody and the manager petitioned for review in this court.   The DC Circuit denied the petition. The court explained that MSHA safety regulations unambiguously prohibited Peabody’s operation of an energized drill in a high-methane environment, and substantial evidence supports the Commission’s unwarrantable failure and individual liability determinations. Further, as the Commission recognized, by permitting miners to work with energized equipment, the manager risked incurring the very hazard section 75.323(c)(2) is intended to address, i.e., potential ignition [in a] high-methane environment. View "Peabody Midwest Mining, LLC v. Secretary of Labor" on Justia Law