Articles Posted in Environmental Law

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Seneca, an oil and natural gas exploration and production company, sought to convert a natural gas well in Highland Township into a Class II underground injection control well in which to store waste from fracking. Highland Township, in Elk County, Pennsylvania, enacted an ordinance that, among other things, prohibited “disposal injection wells” from existing within Highland. In Seneca’s lawsuit, challenging the ordinance, the Community Environmental Legal Defense Fund sought to intervene on the side of the Township to represent the interests of underlying environmental groups (appellants). The district court denied its motion to intervene, holding that the Township adequately represented underlying interests in defending the ordinance. While a motion for reconsideration was pending, the Township repealed the ordinance and entered into a settlement with Seneca that culminated in a consent decree adopted by the district court. The Third Circuit affirmed, finding that original motion to intervene was moot because there is no longer an ordinance to defend. The Consent Decree does not bind any of the appellants nor does it deprive them of any rights after the ordinance has been repealed. Because the appellants are nonparties, they cannot appeal the Consent Decree. View "Seneca Resources Corp v. Township of Highland" on Justia Law

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The Third Circuit affirmed the approval of a settlement of an FRCP 23(b)(3) class action arising out of hexavalent chromium contamination in Jersey City, New Jersey. The class action was brought on behalf of property owners in several neighborhoods whose homes were allegedly contaminated by by-products disposed of at chromium chemical manufacturing plants, owned and operated by the predecessors of Honeywell and PPG. Plaintiffs asserted common law tort claims and civil conspiracy claims for depreciation of their property values due to the alleged contamination, but not claims for harm other than economic loss to property value, such as personal injury or medical monitoring claims. The district court certified a settlement-only class as to the claims against Honeywell and approved a $10,017,000 settlement fund, which included an award of costs and attorneys’ fees for plaintiffs’ counsel. Overruling an objection by a member of the Honeywell settlement class, the Third Circuit concluded that the class certification requirements of FRCP 23(a) and (b)(3) are satisfied, and the district court did not abuse its discretion in approving the settlement under FRCP 23(e) and the award of attorneys’ fees under FRCP 23(h). The court remanded for reconsideration of the award of costs under Rule 23(h). View "Halley v. Honeywell International Inc" on Justia Law

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Transco, which operates the 10,000-mile-long Transcontinental Pipeline from South Texas to New York City, sought a certificate of public convenience and necessity for the Leidy Southeast Expansion Project, including construction of four new pipeline “loops” and the upgrade of turbines at four compressor stations. The Skillman Loop and the Pleasant Run Loop, totaling 13.23 miles, would be located in New Jersey; the Franklin Loop and Dorrance Loop, totaling 16.74 miles, would be located in Pennsylvania. The Federal Energy Regulatory Commission (FERC) completed the requisite Environmental Assessment and issued the certificate in December 2014, conditioned on Transco’s receipt of “all applicable authorizations under federal law” enumerated in the Environmental Assessment, including from New Jersey and Pennsylvania. Pursuant to the Clean Water Act, the Pennsylvania and New Jersey Departments of Environmental Protection (PADEP, NJDEP) reviewed Transco’s proposal for potential water quality impacts and issued. In consolidated appeals, the Third Circuit upheld the approvals. NJDEP and PADEP did not act arbitrarily or capriciously in issuing the permits. View "New Jersey Conservation Foundation v. New Jersey Department of Environmental Protection" on Justia Law

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In 2005 Constand alleged that William Cosby had drugged and sexually assaulted her at his home. During the​ discovery process, Constand’s counsel took Cosby’s deposition and questioned him regarding whether other women had ingested Quaaludes prior to a sexual encounter with Cosby. The deposition resulted in discovery disputes. The court entered an interim order, requiring the parties to file discovery documents under seal. The Associated Press (AP) moved to intervene and opposed the order. The court denied the motion, stating that the record was not yet sufficient to determine whether a permanent seal was warranted. The sealed documents reveal several damaging admissions during Cosby's deposition, including that he had: engaged in extramarital affairs; acquired Quaaludes and engaged in sexual relations with a woman after she ingested the drug; and given money to one woman and offered money to Constand. Before the court could rule on whether the documents should remain sealed permanently, Cosby and Constand reached a confidential settlement. The case was dismissed. The interim sealing order continued in effect and the documents remained sealed. Though Local Rules require that the Clerk of Court send a notice stating that the documents will be unsealed unless an objection is filed, eight years passed without the Clerk taking action. In 2015, the court unsealed the records, following a request by AP. Finding an appeal moot, the Third Circuit declined to address whether the court properly balanced the public and private interests. View "Constand v. Cosby" on Justia Law

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Transco, which operates the 10,000-mile Transcontinental pipeline, extending from South Texas to New York City, sought federal approval to expand a portion of the pipeline, called the Leidy Line, which connects gas wells in Central Pennsylvania with the main pipeline. Pursuant to the Clean Water Act, the Pennsylvania and New Jersey Departments of Environmental Protection (PADEP; NJDEP) reviewed the proposal for potential water quality impacts and issued permits. Environmental groups challenged the approvals. The Third Circuit concluded that it had jurisdiction to hear the petitions and that NJDEP and PADEP did not act arbitrarily in issuing the permits. To bar review of PADEP’s actions in permitting an interstate natural gas facility pursuant to the Natural Gas Act and the Clean Water Act would frustrate the purpose of Congress’s grant of jurisdiction and render superfluous the explicit exception from federal judicial review of the Coastal Zone Management Act. The court also rejected NJDEP’s arguments that the court had no jurisdiction over the Freshwater Wetlands Individual Permits or the Water Quality Certifications, and even if it had jurisdiction over those authorizations, it could not reach issues regarding aspects of Freshwater Wetlands Individual Permits that concern transition areas and threatened and endangered species, Letters of Interpretation, or Flood Hazard Area Individual Permits. View "Dela. Riverkeeper Network v. Sec'y Pa. Dep't of Envtl. Prot." on Justia Law

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MCA owns 85 acres in Maidencreek Township and hopes to develop into a 600,000 square-foot shopping center. The Township Board of Supervisors has taken the public position that the shopping center is “vital” to the economic well-being of Township residents. MCA and the Board claim that the Pennsylvania Department of Transportation’s plan to improve an adjacent highway, State Route 222, will impede the project. The highway improvement will be undertaken by PADOT on behalf of the U.S. Department of Transportation and the Federal Highway Administration, and fully funded by the federal government. MCA claims that the Project should not proceed because planned traffic circles would not be able to handle all of the traffic expected to be generated by its shopping center. The Project was approved in 2014. PADOT determined, under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321, that the Project qualified a Categorical Exclusion from preparing an Environmental Impact Statement or Environmental Assessment. MCA and the Board alleged that the Categorical Exclusion approval was based on inaccurate information supplied by PADOT that had not been adequately studied or investigated, and that the findings and conclusions contained therein were arbitrary and capricious. The Third Circuit affirmed dismissal, finding the allegations insufficient to establish violation of NEPA. View "Maiden Creek Assocs. LP v. Pa. Dep't of Transp." on Justia Law

Posted in: Environmental Law

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The environmental group, GASP, sued Shenango, which operates the Neville Island Coke Plant, a coke manufacturing and by-products recovery facility in Allegheny County, Pennsylvania. The district court dismissed the citizen suit, finding that that the administrative agencies were already “diligently prosecuting” the alleged Clean Air Act violations, so that GASP’s action was prohibited by the diligent prosecution bar of the Act. 42 U.S.C. 7604(b)(1)(B). The Third Circuit affirmed, stating that the diligent prosecution bar of the Act is not a jurisdictional limitation, but that GASP’s action was properly dismissed through a Rule 12(b)(6) motion for failure to state a claim. View "Group Against Smog & Pollution, Inc. v. Shenango Inc" on Justia Law

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In 2001, Furnival and its insurer agreed to a Pollution and Remediation Legal Liability Policy, detailing $10 million in liability protection; a 10-year coverage period; and insurance coverage for 12 Furnival locations, including the Elizabethtown Landfill Site, which Furnival was obligated to clean up under a consent decree with the federal government. Insurer knew about the consent decree when the Policy issued. The Policy Endorsements list five reasons for which insurer may “refuse to offer a renewal extension of coverage,” and states that insurer “shall not cancel nor non-renew this Policy except for the reasons stated above.” None of the listed reasons for non-renewal occurred. In 2006, the parties increased the Policy’s limit to $14 million. After the term expired, insurer sent Furnival’s insurance broker its version of a renewal offer, providing $5 million of coverage over a one-year term, omitting coverage for Elizabethtown, the only previously insured site for which Furnival had made a claim, refusing to renew the same terms. The Third Circuit vacated a ruling in favor of insurer, holding that, for a contract to be considered a renewal, it must contain the same, or nearly the same, terms as the original contract. View "Indian Harbor Ins. Co v. F&M Equip., Ltd" on Justia Law

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The Clean Air Act, 42 U.S.C. 7491, and EPA regulations require states to evaluate the impact of emissions from certain pollution sources within their borders on atmospheric visibility in national parks and wilderness areas. After conducting this evaluation, Pennsylvania declined to require its sources to implement additional pollution controls, concluding that costs associated with the controls outweighed the limited visibility improvements they would produce, and set forth its conclusions in its 2010 State Implementation Plan (SIP), which was approved by the EPA in 2014. Conservation Groups sought review. The Third Circuit denied the petition to the extent it challenged the Transport Rule or Pennsylvania’s reliance on it in lieu of conducting source-specific best available retrofit technology (BART) analysis regarding SO2 and NOx emissions from each source with an electricity generating capacity of at least 750 megawatts. This appeal was not the appropriate vehicle to challenge EPA’s finding that the Transport Rule is better-than-BART or decision to approve state reliance on that rule; both stem from a final rule and separate rule-making proceeding not before the court. The court nonetheless vacated and remanded, finding that Pennsylvania’s source-specific BART analysis failed to comply with the Guidelines, and that the EPA arbitrarily approved the SIP despite these flaws. View "Nat'l Parks Conservation Ass'n v. Envtl. Prot. Agency" on Justia Law

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Chesapeake Bay is plagued by dead zones with opaque water and algae blooms that render significant areas unable to support aquatic life. Surrounding jurisdictions recognize that the Bay absorbs far too much nitrogen, phosphorous, and sediment to be a healthy ecosystem and threatens the livelihood of many. In 2010, the Environmental Protection Agency published the “total maximum daily load” (TMDL) of nitrogen, phosphorous, and sediment that can be released into the Bay under the Clean Water Act, 33 U.S.C. 1251. Opponents alleged that aspects of the TMDL that go beyond an allowable sum of pollutants (i.e., the most nitrogen, phosphorous, and sediment the Bay can safely absorb) exceeded EPA’s regulatory authority, because they may intrude on states’ role in regulating land use. The district court and Third Circuit ruled in favor of EPA, stating that Bay pollution is a complex problem affecting at least 17,000,000 people. Any solution will have winners and losers, considering the interests of: environmental groups, adjoining states, tourists, fishermen, municipal waste water treatment works, urban centers, rural counties, nonpoint source polluters, and agriculture. Congress determined, with the Act, that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution. The Bay TMDL will require sacrifice as a consequence of the tremendous effort necessary to restore the Bay’s health. View "Am. Farm Bureau Fed'n v. Envt'l Protection Agency" on Justia Law