Justia U.S. 11th Circuit Court of Appeals Opinion SummariesArticles Posted in Environmental Law
Cahaba Riverkeeper v. EPA
Petitioners filed petitions with the EPA seeking to withdraw Alabama's authorization to administer the National Pollutant Discharge Elimination System (NPDES), as part of the Clean Water Act, 33 U.S.C. 1251 et seq. On appeal, petitioners challenged the EPA's findings on some of the 22 alleged deficiencies that did not warrant the initiation of program withdrawal proceedings. The court dismissed the appeal without prejudice, concluding that it does not have jurisdiction to review the interim report with which petitioners disagreed because EPA has not made a "determination" within the meaning of section 1396(b)(1)(D). View "Cahaba Riverkeeper v. EPA" on Justia Law
Black Warrior Riverkeeper, Inc., et al v. U.S. Army Corps of Engineers, et al
Plaintiffs Black Warrior Riverkeeper and Defenders of Wildlife appealed a district court’s grant of final summary judgment to the U.S. Army Corps of Engineers, as well as to the Alabama Coal Association and several other intervenor mining companies. Riverkeeper challenges the 2012 version of Nationwide Permit 21 (“NWP 21”), a general permit that allowed surface coal mining operations to discharge dredged or fill materials into navigable waters. Riverkeeper argued that the Corps arbitrarily and capriciously found that NWP 21 would have no more than minimal environmental effects, in violation of both the Clean Water Act and the National Environmental Policy Act. After deciding Riverkeeper has standing to sue, the district court held that Riverkeeper’s lawsuit was, nonetheless, barred by the equitable doctrine of laches. After thorough review, however, the Eleventh Circuit concluded that the intervenors have shown neither inexcusable delay on the part of Riverkeeper nor prejudice resulting from Riverkeeper’s alleged delay. To the extent that Riverkeeper lagged in filing suit, its delay was slight and excused by its need to adequately investigate and prepare its claims in this complex case. Moreover, the Intervenors’ modest showing of harm, stated only at the highest order of abstraction, does not outweigh the potential environmental benefits of allowing Riverkeeper to proceed. As for the merits of Riverkeeper’s environmental claims, the district court concluded, after thorough deliberation, that the Corps’ determinations that NWP 21 would have only “minimal cumulative adverse effect” on the environment, pursuant to the Clean Water Act, and “no significant impact” on the environment, pursuant to the National Environmental Policy Act, were neither arbitrary nor capricious. However, literally on the eve of oral argument before the Eleventh Circuit, the Corps admitted that it had underestimated the acreage of waters that would be affected by the projects authorized under the permit. In the face of this change in facts, the Eleventh Circuit ordered the parties to provide supplemental briefing on the implications of the Corps’ error. The Corps then conceded that the district court’s decision must be reversed and the matter remanded to the Corps for further consideration based on a more accurate assessment of the potential impacts of NWP 21. The Eleventh Circuit agreed. View "Black Warrior Riverkeeper, Inc., et al v. U.S. Army Corps of Engineers, et al" on Justia Law
Bryant, et al. v. United States
Plaintiffs filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671-2680, against the United States, alleging that they experienced various health problems after being exposed to toxic substances in the drinking water while living at Camp Lejeune, a military base in North Carolina. The United States argued that the North Carolina statute of repose, N.C. Gen. Stat. 1-52(16), precluded plaintiffs from bringing the case. The district court disagreed and certified two questions for interlocutory appeal. The court held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9568, does not preempt North Carolina's statute of repose. The court also held that North Carolina's statute of repose applies to plaintiffs' claims and does not contain an exception for latent diseases. Accordingly, the court remanded for further proceedings. View "Bryant, et al. v. United States" on Justia Law
Republic of Ecuador v. Hinchee, et al.
Dr. Hinchee, who resides in Florida, and Chevron appeal the district court's discovery order compelling production of Dr. Hinchee's documents to the Republic of Ecuador. Dr. Hinchee served as a testifying expert for Chevron in a related proceeding. The discovery dispute at issue stemmed from a suit brought by Ecuadorian plaintiffs alleging that Texaco's oil exploration in the Amazonian rain forest polluted private and public lands in Ecuador and that Texaco was responsible for plaintiffs' oil-related health problems and the environmental contamination of plaintiffs' property. The court concluded that Dr. Hinchee's notes and email communications with non-attorneys, including other experts, were relevant within the meaning of Federal Rule of Civil Procedure 26(b)(1), and the Republic was thus entitled to discover these materials. Neither the text of Rule 26(b)(3)(A) nor its structure, history, and rationale support extending the work-product doctrine to all testifying expert materials. To the extent any attorney core opinion work-product was embedded in the 1,200 documents at issue here, Chevron and Dr. Hinchee could appropriately redact such portions. Accordingly, the court affirmed the district court's order compelling discovery. View "Republic of Ecuador v. Hinchee, et al." on Justia Law
Black Warrior Riverkeeper, et al. v. Black Warrior Minerals, Inc.
Plaintiffs, several citizens of Alabama, filed suit against Black Warrior Minerals, which operates a coal mine in Alabama, for violations of the new source performance standards. Congress has provided citizens a limited role in the enforcement of the Clean Air Act, 33 U.S.C. 1365(b), and ordinarily a citizen must provide notice of alleged violations to a discharger and federal and state authorities and wait 60 days before filing suit against a discharger. The Act required a citizen who sues a permit holder to sue for a violation of that permit and wait 60 days after giving notice of that violation before filing suit. Here, plaintiffs failed to wait the required 60 days before they filed suit against Black Warrior Minerals. Accordingly, the court affirmed the district court's grant of summary judgment in favor of Black Warrior Minerals. View "Black Warrior Riverkeeper, et al. v. Black Warrior Minerals, Inc." on Justia Law
Gulf Restoration Network, Inc., et al. v. Administrator, EPA
This appeal concerned the district court's summary judgment order validating a majority of the water nutrient standards established by the EPA's rule and setting a deadline for the EPA to publish new rules, or explain its reasons for not doings so, pursuant to the terms of an existing consent decree. The court concluded that it lacked jurisdiction to review the order because it was not a final judgment under Rule 54(b); the collateral order doctrine did not apply; and the order was not an immediately appealable injunction under 28 U.S.C. 1292(a)(1). Accordingly, the court granted the EPA's motion to dismiss and dismissed this appeal with prejudice for lack of appellate jurisdiction. View "Gulf Restoration Network, Inc., et al. v. Administrator, EPA" on Justia Law
Defenders of Wildlife, et al. v. U.S. Dept. of the Navy, et al.
Plaintiffs filed suit against the Navy under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.; the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq.; and the Administrative Procedure Act (APA), 5 U.S.C. 701-706. Plaintiffs challenged the Navy's decision to install and operate an instrumented Undersea Warfare Training Range (the range) in waters adjacent to the only known calving grounds of the endangered North Atlantic right whale, and the NMFS's biological opinion assessing the impact of the range on threatened and endangered species. The court concluded that plaintiffs have not pointed to any provision in NEPA requiring an agency to authorize all phases of a proposed action evaluated in an environmental impact statement (EIS) at the time it issued a record of decision (ROD). Therefore, the court found that it was not an independent violation of NEPA, warranting reversal of the district court's judgment, for the Navy to enter into a construction contract after it signed an ROD authorizing construction and after having its NEPA analysis upheld by the district court. Accordingly, the court affirmed the district court's judgment that the Navy complied with NEPA. The court affirmed the district court's grant of summary judgment for the Navy as to plaintiffs' remaining claims. View "Defenders of Wildlife, et al. v. U.S. Dept. of the Navy, et al." on Justia Law
Alabama Environmental Council v. Alabama Power Co.
The United States filed suit under the Clean Air Act, 42 U.S.C. 7401 et seq., against Alabama Power, alleging principally that Alabama Power made major modifications at three of its coal-fired power plants without obtaining a permit or installing modern pollution control devices. The court reversed the district court's wholesale exclusion of the expert testimony of two experts, a power plant reliability engineer (Mr. Koppe) and an environmental permitting engineer (Dr. Ranajit), in Alabama Power I, vacated the judgment in favor of Alabama Power, and remanded for further proceedings. The Koppe-Sahu model, as utilized here, was sufficiently reliable to establish a relationship between potential generation of electricity and expected pollutant emissions at Alabama Power's modified plants. Moreover, the Seventh Circuit's decision in United States v. Cinergy Corp did not preclude admission of the expert testimony. The court affirmed the district court's striking of the additional statements and calculations in Dr. Sahu's supplemental declaration in Alabama Power II. View "Alabama Environmental Council v. Alabama Power Co." on Justia Law
Miccosukee Tribe of Indians of FL v. United States, et al
The Tribe filed a complaint regarding the government's management of the Central and Southern Florida Project for Flood Control in the Everglades. The gist of the four-count complaint the Tribe filed was that the project diverted excessive flood waters over tribal lands. The district court dismissed three of the complaint's counts for failure to state a claim for relief and the fourth on summary judgment. The court concluded that the district court properly dismissed Count I because the complaint contained nothing to support Count I's allegation that the Corps had an obligation to protect and not interfere with the Tribe's rights; the district court properly dismissed Count II because it contained no allegation of the process the Tribe claimed was due, much less that it was inadequate; the district court properly dismissed Count III because it failed for the same reasons the court found Count I insufficient to state a claim; and the district court properly dismissed Count IV because its allegations were vague and ambiguous. Accordingly, the court affirmed the judgment. View "Miccosukee Tribe of Indians of FL v. United States, et al" on Justia Law
Alabama Environmental Council, et al. v. U.S. Environmental Protection Agency
These consolidated appeals focus on a Clean Air Act, 42 U.S.C. 7401 et seq., visible emissions regulation promulgated by the State of Alabama and submitted to the EPA as a revision to Alabama's State Implementation Plan (SIP). The court held that the EPA's 2011 disapproval was unauthorized by the Act because the EPA failed to make the statutorily required error determination. The court rejected the EPA's reliance on its inherent authority and the court's remand order as authorization for the 2011 disapproval. Finally, the court dismissed challenges to the 2008 approval and affirmed the validity of the action. View "Alabama Environmental Council, et al. v. U.S. Environmental Protection Agency" on Justia Law