Downtown Lawyer » Environmental Law

Ninth Circuit explains that passive causation is insufficient to create liability under nuisance laws.

Jodie L. Hill — Wed, 29 Jun 2011 22:01:28 +0000

In 1988, BNSF Railway and Union Pacific Railroad sold their interest in a parcel of land in Stockton, California, to the city’s redevelopment agency. That agency then sold a portion to a commercial developer who discovered that the soil and groundwater had long been contaminated. Officials determined that (1) a nearby petroleum facility was source of the pollutants and (2) several spills in the 1970s had sent petroleum onto the property through an underground drain. Under its agreement with the developer, Stockton’s redevelopment agency spent nearly $2 million cleaning the site.

In 2005, the agency sued the railroads for reimbursement, claiming they were liable for the contamination under common-nuisance law and California’s Polanco Redevelopment Act, which governs the rehabilitation of former industrial sites throughout the state. The trial court agreed and awarded the agency more than $800,000 in damages and an injunction, holding that the railroads were liable for the contamination because they installed the underground drain through which the contaminants migrated onto the property. The trial court found that, had the railroads not installed the drain, the land would not have been damaged.

On appeal, the Ninth Circuit Court of Appeals rejected the trial court’s decision, noting that no precedent allowed but-for causation to establish nuisance liability:

We cannot agree that such passive but-for causation is sufficient for nuisance liability to attach. Under California law, conduct cannot be said to “create” a nuisance unless it more actively or knowingly generates or permits the specific nuisance condition.

The court then remanded the case back to the trial court for entry of summary judgment for the railroads.

For the full story, click here.

Ninth Circuit holds that California’s air-quality rules for ships near its ports are not pre-empted by the Submerged Lands Act.

Jodie L. Hill — Tue, 29 Mar 2011 21:09:14 +0000

In 2009, the Pacific Merchant Shipping Association (“PMSA”) sued the head of the California Air Resources Board over the state’s Vessel Fuel Rules, which require ships to use cleaner fuels within 24 miles of the coast as they move through the state’s busy ports. The PMSA argued that the regulations were pre-empted by the federal Submerged Lands Act (“SLA”). The PMSA filed a motion for summary judgment on its pre-emption claim, but the trial court denied it.

On appeal, the Ninth Circuit Court of Appeals unanimously affirmed that decision. The court noted that the rules amount to an "expansive and even possibly unprecedented state regulatory scheme," but found that California has a right to mitigate its environmental problems, which "are themselves unusual and even unprecedented." Although the regulations will likely cost the shipping industry some $1.5 billion through the end of the 2014, the court stated that California had “clear justification” for the rules:

It appears uncontested that ocean-going vessels have long been a leading source of air pollution in California, due in large part to the widespread use of low-grade bunker fuel.

The court referenced data showing that ocean-going vessels traveling within 24 nautical miles of the California coast spew about 15 tons of diesel particulate matter per day, as well as 157 tons of nitrogen oxides and 117 tons of sulfur oxides. The vessel fuel rules are expected to significantly reduce such harmful emissions and "should prevent, between 2009 and 2015, approximately 3,500 premature deaths and nearly 100,000 asthma attacks as well as reduce cancer risks."

The court noted that, while the SLA granted states the rights to all of their coastal lands within 3 nautical miles of the continent, other courts have rejected challenges to state laws despite the 3-mile regulatory limit:

Applying this effects test to the vessel fuel rules, we conclude that there are genuine issues of material fact with respect to both the effects of the fuel use governed by California’s regulations on the health and well-being of the state’s residents as well as the actual impact of these regulations on maritime and foreign commerce.

Accordingly, the court remanded the case back to the trial court for further proceedings.

For the full story, click here.

Fifth Circuit finds that rail line is less environmentally disruptive than a highway.

Jodie L. Hill — Thu, 08 Apr 2010 18:15:19 +0000

The Medina County Environmental Action Association sought review of a decision by the Surface Transportation Board and the Fish and Wildlife Service allowing a rail line for a limestone quarry in Texas. Environmentalists worried about the endangered golden-cheeked warbler and invertebrates living in karst limestone formations. The transportation board granted Vulcan Construction Materials permission to build a seven-mile rail loop linking the Medina County, Texas, quarry to a Union Pacific rail line along Highway 90. Vulcan looked for warblers starting in 2000, finding a single warbler calling near the site in 2003. It also tracked the presence of karst cave insects. The Fish and Wildlife Service concluded that little suitable warbler habitat remained, since the area had previously been cleared for agriculture. Although some karst features were in the project area, none of the cave insects was discovered there.

The Fifth Circuit Court of Appeals denied the environmental group’s request for review, finding that quarry development would occur regardless of the railway, so the two were not interrelated. The court said Vulcan provided adequate mitigation measures, including a planned buffer zone and a promise to not clear land during warbler breeding season. The court noted that the rail line is better for wildlife than an “environmentally disruptive fleet of trucks.”

For the full story, click here.

Fifth Circuit allows property owners to sue over pollution that elevated sea levels and worsened effects of Hurricane Katrina.

Jodie L. Hill — Tue, 20 Oct 2009 16:59:34 +0000

Following the Second Circuit decision in Connecticut v. AEP–which reinstated federal public nuisance claims of eight states, New York City, and three land trusts against six power companies over carbon dioxide emissions—the Fifth Circuit rejected a lower court’s findings that global-warming disputes are best resolved by the political branches of government. Instead, the court held that Comer v. Murphy Oil Co. did not require it “to address any specific issue that is constitutionally committed to another branch of government.” The court noted that the property owners could proceed with claims for nuisance, trespass, and negligence because those allegations did not clearly fall under the authority of Congress, the president, or federal law. For the full story, click here.

Nevada Supreme Court strikes criminal portions of clean air act as being impermissibly vague.

Jodie L. Hill — Tue, 29 Sep 2009 13:14:57 +0000

The Nevada Clean Indoor Air Act, a voter-approved ban passed in 2006, prohibits smoking in schools and workplaces, but makes exceptions for bars, casinos and strip clubs. The Nevada Tavern Owners Association, Terrible’s Hotel and Casino, and Three Angry Wives Pub challenged the criminal portion of the Act, claiming it was vague to be enforced. The trial court agreed, but noted the civil portion was not impermissibly vague and could be severed from the criminal portion. The Nevada Attorney General appealed, but the Nevada Supreme Court agreed with the trial court. Specifically, the court noted that the Act did not instruct bar owners on whether they should stop smokers from lighting up, ask them to leave, or call the police. For the full story, click here.

Eighth Circuit rejects continuing violation doctrine for claims under the Boundary Waters Canoe Area Wilderness Act.

Jodie L. Hill — Fri, 06 Mar 2009 16:57:05 +0000

Izaak Walton League of Am., Inc. v. Kimbell, Nos. 07-3689/07-3696/08-1167.

Congress enacted the Boundary Waters Canoe Area Wilderness Act (“the Act”) in 1978 to protect, enhance, and preserve the natural value of lakes, waterways, and associated forested areas. Under the Act, the United States Forestry Service regulates the use of motorboats and snowmobiles in these areas. The areas at issue in this lawsuit related to the North and South Fowl Lakes in Northeastern Minnesota, which are located near the boundary specified by the Act.

In 2005, the Forestry Service proposed a new snowmobile route to the Fowl Lakes. Several environmental groups opposed the new snowmobile trail and eventually brought a lawsuit to challenge the action. The environmental groups alleged that the new snowmobile route violated of the Act. The Forestry Service moved for summary judgment, arguing that, since the enactment of the Act in 1978, it had always allowed snowmobile use in the Fowl Lakes area. Because snowmobile use had been occurring since 1978, the Forestry Service argued that the statute of limitations for such a challenge should have occurred within six years as proscribed in the Administrative Procedure Act. The environmental groups argued that the Forestry Service’s failure to regulate snowmobile use was a continuing violation of the Act, which created a new cause of action each time the Act was violated. The trial court rejected this argument and granted summary judgment on the issue.

On appeal, the Eighth Circuit Court of Appeals also rejected the continuing violation doctrine. The court noted that the legal description and maps for the Act were published in the Federal Register on April 4, 1980, and that the Federal Register provides legal notice to all persons affected by its contents. Accordingly, the environmental groups’ claims were barred by the six-year statute of limitations.

Supreme Court holds that environmentalists do not have standing to challenge sale of salvaged timber by the U.S. Forest Service.

Jodie L. Hill — Wed, 04 Mar 2009 15:29:33 +0000

After a section of the Sequoia National Forest in California was burned, the U.S. Forest Service allowed a group to salvage timber from the area. This project was known as The Burnt Ridge Project. Environmental organizations brought suit challenging the authority of the U.S. Forest Service for salvaged timber sales. The lawsuit finally reached the Ninth Circuit Court of Appeals, who ruled in favor of the environmentalists. At some point during litigation, the issue concerning The Burnt Ridge Project was settled, but the parties continued litigation over whether the U.S. Forest Service had the necessary authority to allow such sales.

On appeal to the Supreme Court of the United States, the court narrowly held (5-4) that the environmentalists did not have standing to challenge the actions of the U.S. Forest Service. Because there was not a “case or controversy” any longer, the court refused to hear the case on the merits. As usual with hotly contested cases, there were strongly worded opinions on both sides. For a full account of the ruling, click here.

HPI Products violated federal and state environmental laws according to a district court in Missouri.

Jodie L. Hill — Wed, 24 Dec 2008 15:29:41 +0000

The court held that HPI Products failed to comply with the Clean Water Act, Resource Conservation and Recovery Act, Emergency Planning and Community Right to Know Act, and Missouri environmental laws. See the full story here.