In the past week the Federal courts came down with five opinions that related to Environmental law:
- Environmental Conservation Organization v. City of Dallas, Case No. 07-10583 (5th Cir., May 27, 2008). Clean Water Act. The court dismissed the Clean Water Act citizens’ suit case as being moot. The Environmental Conservation Organization filed a lawsuit against Dallas alleging that the City had violated the Clean Water Act in the operation of the storm water sewer. Although neither the state or the Federal EPA filed a lawsuit during the 60-day notice period, the USEPA did issue a compliance order and eventually filed an enforcement action against the City. ECO declined to join in that enforcement action. The court held that the USEPA’s Consent Decree with the City effectively mooted ECO’s citizens’ suit.
- Raytheon Aircraft Co. v. United States, Case No. 05-2328 (D.Kan. May 30, 2008). CERCLA. After a ten-day trial the U.S. District Court held that Raytheon had not proved that the United States, through the actions of the Army Air Force in the early 1940’s was liable under either section 107(a) cost recovery section or section 113(f) contribution section for a portion of a clean-up of trichloroethylene (TCE). In addition, the court held that Raytheon was liable to the United States for the response costs of the USEPA.
- Sauk County v. U.S. Department of the Interior, Case No. 07-543 (W.D. Wis. May 29, 2008). NEPA. A county in Wisconsin sought to challenge the Department of Interior taking into trust five acres land for the Ho Chunk Nation. Among other things, the County alleged that the department wrongly denied the County standing to challenge the finding that the action would have no significant impact under NEPA. On a motion for summary judgment, the court held that the department decision should be affirmed. The court held that the County had not shown that it suffered a “concrete and particularized injury that is either actual or imminent, that the injury is traceable to the challenged action of the defendant and that is likely that the injury will be redressed by a favorable decision.”
- Ohio Valley Environmental Coalition, Inc. v. Apogee Coal Co., Case No. 07-0413 (S.D. W.Va. May 27, 2008). Clean Water Act. Environmental group brought a lawsuit against two mining companies under the Clean Water Act and the Surface Mining Control and Reclamation Act for discharges of selenium from their mining operations in violation of their NPDES permits. Court held, upon motion for summary judgment, that Apogee Coal Co. had violated its permit, while Hobet Mining did not.
- Ogeechee-Canoochee Riverkeeper Inc. v. U.S. Army Corps of Engineers, Case No. 606CV102 (S.D. Ga. May 27, 2008). Clean Water Act. Environmental group brought an Administrative Procedure Act claim against the Army Corps of Engineers challenging a Corps decision to exempt a proposed timber harvest from Clean Water Act regulation. Because the Corps failed to show that the area it proposed to be exempt had a history of silviculture and was presently being used for silviculture, the court granted the environmental group’s motion for summary judgment.