News & Analysis In the Courts
Volume 54 Issue 11
A district court denied summary judgment for an environmental group in a challenge to the Tennessee Valley Authority's (TVA's) decision to build a gas-fired power plant in Tennessee. The group argued the EA violated NEPA, and that TVA's decision to issue a FONSI and not to prepare an EIS was arbitrary and capricious; it sought to enjoin further construction and operation of the plant until TVA complies with NEPA. The court found TVA adequately studied the potential climate impacts and that its FONSI did not reach the high bar necessary for the court to find the decision violated NEPA. It denied the group's motion for summary judgment and granted TVA's cross-motion.
A district court granted in part and denied in part summary judgment for environmental groups in a challenge to the Army Corps of Engineers' nationwide permit authorizing the installation of structures in finfish aquaculture operations. The groups argued the Corps did not comply with its obligations under the Rivers and Harbors Act (RHA) or NEPA when it determined the permit would have "no more than minimal individual and adverse effects" or "will not have a significant impact." The court found that because the Corps narrowed its EA to disclose but not account for many foreseeable effects of the permit, its findings of minimal effects and no significant impacts were insufficiently supported and explained, and thus that the permit failed to fully comply with the Corps' procedural obligations under the RHA and NEPA. The groups also argued the Corps exceeded its authority under the Outer Continental Shelf Lands Act in issuing the permit, but the court disagreed. It prohibited the permitting of new activities under the permit in its current form and ordered the parties to file either a stipulated motion or joint status report proposing a method for final determination of the appropriate remedy.
A district court denied an environmental and public health group's motion for a preliminary injunction in a challenge to FWS' and the Federal Highway Administration's (FHwA's) authorization of a trail development project through a former nuclear weapons production site in Rocky Flats National Wildlife Refuge. The group argued the agencies violated NEPA and the APA by failing to prepare an EIS, failing to consider adequate alternatives, and failing to adequately involve the public; it sought to preliminarily enjoin them from proceeding with the project. The court found the agencies did not need to prepare an EIS, that they considered a reasonable range of alternatives, and that they adequately involved the public in the NEPA process. It denied the group's motion for preliminary injunction.
A district court denied summary judgment for environmental groups in a challenge to FWS' 2015 rule that classified any reestablished black-footed ferret population in Wyoming as a nonessential experimental population. The groups argued FWS' designation of reintroduced ferrets as "nonessential" violated the ESA because it encompassed all ferrets throughout the state and was not site-specific, was not based on best available science, and failed to provide for conservation of the species, and that FWS impermissibly subdelegated statutory authority related to reintroduction and management of endangered species to the Wyoming Game and Fish Department. The groups also argued FWS violated NEPA by failing to prepare an EIS and by preparing an inadequate EA and FONSI. The court found the rule did not violate the ESA and did not include an improper subdelegation of FWS' statutory duties, and that FWS complied with NEPA when it adopted the rule. It denied summary judgment for the groups and granted FWS' cross-motion.
A district court granted in part environmental groups' motion for summary judgment in a challenge to BLM's approval of an oil and gas project in Wyoming. The groups argued BLM violated NEPA, the APA, FLPMA, and the Mineral Leasing Act in approving the project and in approving hundred of applications for permits to drill (APDs) based on that approval; it sought to enjoin the project and any further APDs pending a decision on the merits. The court found BLM's use of a higher specific storage value to assess the project's effects on groundwater supplies in its EIS may have resulted "in a substantial underestimation" of groundwater drawdown. It granted in part summary judgment for the groups, ordered additional briefing on remedy, and enjoined further APD approvals based on the deficient EIS pending a ruling on remedy.
A district court granted five states' motion to preliminarily enjoin BLM from implementing its 2024 rule that requires oil and gas operators to flare rather than vent excess methane gas to prevent waste and conserve resources. North Dakota, Montana, Texas, Wyoming, and Utah argued the rule exceeded BLM's authority under the Mineral Leasing Act and the Federal Oil and Gas Royalty Management Act, that it violated the CAA and FLPMA, and that it was arbitrary and capricious. The court held the rule failed to explain why flaring was more economically productive than venting or how flaring was simultaneously required, but then limited the amount of gas permitted to be flared with a risk of wells being shut-in or production curtailed by BLM; failed to justify why requiring flaring over venting fulfilled BLM's "obligation to protect local public health and safety"; and was unlikely to remedy the harm caused by pneumatic equipment, storage tanks, and other equipment leaks when venting because a "leak" was expressly authorized. It further found the states' sovereign interests were compromised and they were likely to suffer irreparable harm. It enjoined application of the rule against the five states pending the outcome of the litigation.
A district court granted in part and denied in part Alaska Native tribes' request for declaratory relief in a challenge to the Army Corps of Engineers' and BLM's final EIS and joint record of decision for a proposed gold mine in southwestern Alaska. The tribes argued the EIS and record of decision violated NEPA, the Alaska National Interest Lands Conservation Act (ANILCA), and the CWA. The court found the Corps violated NEPA by failing to consider a large tailings spill and by declining to assess a catastrophic tailings spill based solely on its low probability of occurrence, but did not violate the Act by failing to disclose or discuss the state health impact assessment's (HIA's) health impact ratings. Because the Corps should have considered a larger tailings spill as a reasonably foreseeable effect of the mine, it held BLM's failure to do so violated ANILCA. It also found the Corps' consideration of the impact of barging on rainbow smelt in the Kuskokwim River did not violate the CWA. It granted declaratory relief insofar as the final EIS violated NEPA and ANILCA by failing to consider a large tailings spill, but denied relief on the tribes' claims concerning the final EIS' treatment of the state HIA and the CWA §404 permit.
A district court granted the state of Alaska's request to set aside and enjoin NMFS' final rules designating critical habitat for the Beringia distinct population segment of the bearded seal and for the Arctic ringed seal. The state argued NMFS violated the ESA by failing to designate specific areas as critical habitat, failing to consider all of the species' global habitat, failing to designate specific areas that contained essential habitat features, failing to explain how essential habitat features would be protected, failing to analyze whether each designation was prudent, and failing to take into consideration economic, national security, and other relevant impacts when designating critical habitat. The court found NMFS' failure to consider any foreign efforts to conserve the seals and failure to articulate a satisfactory explanation for why the entirety of the designated areas in U.S. territory were indispensable to survival and recovery were arbitrary and capricious, and that the Service abused its discretion in deciding not to consider exclusion of any areas from critical habitat; but that the Service adequately explained how it identified areas where the dynamic sea ice essential features would be found and adequately determined that the seals' essential habitat features may need special management considerations or protections from potential threats. It declined to read into the ESA or its regulations a requirement for an express prudency determination when making a critical habitat designation. It vacated the Service's final rules and remanded to the agency for further proceedings.
A district court denied summary judgment for an environmental group in a challenge to the Forest Service's approval of a tree-thinning project in Ozark National Forest. The group argued the Service violated NEPA by failing to take a "hard look" at certain environmental issues and failing to prepare an EIS or supplemental EA, and that the Service should have given the public an opportunity to comment on new, significant developments that occurred after the EA was published. The court found the Service took a hard look at impacts on land and water in and around the project area, water quality, and the need to protect the Indiana bat. It further found the Service's decision not to prepare an EIS or supplemental EA was not arbitrary and capricious, and that the group's claim concerning public comment lacked merit. It denied summary judgment for the group and granted the Service's cross-motion.
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