Environmental and Regulatory Laws Update: New Federal and State Rulings | Pillsbury – Gravel2Gavel Construction and real estate law

The first quarter of 2022 saw a number of agency decisions, cancellations, and adjustments worth noting.

FEDERAL CIRCUIT

United States Court of Appeals for the DC Circuit – Food & WaterWatch c. Federal Energy Regulatory Commission
On March 11, 2022, the court decided the FERC case. On December 19, 2019, the Commission issued a certificate to Tennessee Gas Pipeline and determined that a “modest expansion” and upgrade of the existing 11,000-mile pipeline would not have a significant environmental impact. However, one of the commissioners filed a partial dissent, arguing that the Commission’s treatment of the impacts of climate change was inadequate. A petition for review has been filed, and now the court has ruled that the Commission erred in failing to consider the indirect effects of the expansion, namely the downstream greenhouse gas emissions generated by the delivery gas through the pipeline to its customers. Therefore, the NEPA requirement that a rigorous environmental assessment must be carried out prior to the granting of authorization has been violated. However, the court decided not to overturn the Commission’s orders, which would have had a “disruptive effect” on the project which is, or will soon be, operational.

The United States Court of Appeals for the Sixth Circuit – Mann Construction v. United States of America
On March 3, 2022, the Commission issued this tax ruling, interesting in part because it highlights, once again, the importance of complying with the Administrative Procedure Act (LPA), which is so fundamental for the development of environmental regulations. In 2007, the IRS was authorized by Congress to take action against certain “tax evasion” schemes, and a notice was issued by the Service in 2007 regarding “abusive trust agreements”. Based on this opinion, the complainants were imposed sanctions and their administrative appeals were dismissed. They then filed this lawsuit, and now the appeals court has issued an opinion agreeing with the plaintiffs that the Service’s failure to use the APA’s notice and comment procedures prior to posting this notice to what was, after all, a “legislative rule” required that the notice be rescinded.

The United States Court of Appeals for the Tenth Circuit – Cyprus Amax Minerals Company v TCI Pacific Communications, LLC
On March 7, 2022, Superfund decided this cost recovery case by “piercing the corporate veil.” Cyprus is cleaning up the Tulsa Fuel and Marketing site in Collinsville, Okla., and suing the former owners and operators of Tulsa Fuel and Marketing, which operated a zinc smelter in that area nearly a century ago. The lower court determined that TCI, now part of the Comcast telecommunications family, was related to the New Jersey Zinc Company, and TCI is a successor in interest to New Jersey Zinc. Therefore, TCI is a “Covered Person” under CERCLA and may be liable for up to $14 million in cleanup costs, as well as a large portion of future cleanup costs.

The United States Court of Appeals for the Eleventh Circuit – The Glynn Environmental Coalition, Inc., et al. against Sea Island Acquisition, LLC
In a March 3, 2022 ruling, the appeals court overturned the lower court’s decision dismissing the lawsuit of a local conservationist “who regularly visits an area of ​​wetlands to recreate and enjoy their natural beauty”, and whose status is based on its aesthetic interest. in the wetland. The defendant received a permit from the US Army Corps of Engineers to fill a wetland “with exterior materials”. The plaintiffs also alleged that Sea Island’s claims may be misleading. However, the lower court dismissed the suit because no “factual harm” was shown. The Eleventh Circuit reversed and reversed the court’s decision because at this point in the proceedings, plaintiff’s loss of aesthetic pleasure is sufficient to establish factual harm.

CASE OF TEXAS

The Supreme Court of Texas

Texas Commission on Environmental Quality v. Maverick County, et al.
On February 11, 2022, the court reversed the decision of the Austin State Court of Appeals that the Texas Commission on Environmental Quality (TCEQ) permit applicant, in this case, Dos Republicas Coal Partnership (DRCP), was not eligible to apply for wastewater treatment. discharge authorization because, according to the Court of Appeal, the DRCP was not an “operator” of the mine. In a unanimous decision, the Texas Supreme Court ruled that the lower court erred in “substituting a judicial definition of ‘operator'” that contradicted the relevant TCEQ rule. Indeed, the Court stated that “the duty of a tribunal is to adhere to the test chosen by the decision-makers, neither adding to it nor subtracting from it”.

CenterPoint Energy Resources Corporation c. Ramírez, et al.
In another reversal reported on February 11, 2022, in a personal injury case, the Texas Supreme Court ruled that a limitation of liability provision in a utility tariff granted by the Texas Railroad Commission “excludes liability for service public for damages suffered by a guest of the defendant’s residential customer’s home”, not as a matter of contract, but as “a matter of law”.

The Fifth Court of Appeals for Texas – Panda Power Generation Infrastructure Fund, et al. c.Texas Electrical Reliability Board, Inc.
On February 23, 2022, the court ruled that ERCOT, the Electric Reliability Council of Texas Inc., was not entitled to sovereign immunity, and that the claims presented by the plaintiffs here were not subject to the exclusive jurisdiction of the Texas Public Utility Commission. This was an en banc decision of this court, reversing an earlier decision relating to ERCOT’s claim for sovereign immunity under Texas law. Given the importance of this issue, it is highly likely that the Texas Supreme Court will be called upon to review this decision.

FEDERAL REGULATORY NOTICES

Federal Emergency Management Agency (FEMA)
On March 3, 2022, FEMA issued a final rule, effective April 4, 2022, updating its regulatory procedures, which have at times been criticized for being too opaque. The agency announced that it is changing its use of an APP exception relating to government loans, grants and contracts. See 87 FR 11971.

Environmental Protection Agency (EPA)

  • On March 14, 2022, the EPA issued a direct final rule amending the Standards and Practices for all appropriate investigations, meeting the new ASTM Standard Practices for CERCLA Phase 1 cleanings. 40 CFR Part 312 is being amended. (See 87 FR 14174.)
  • Additionally, on March 14, 2022, the EPA issued a decision notice stating that it reconsidered a 2019 decision to remove California’s exemption from federal authority to regulate emissions control standards for new engines. The EPA administrator determined that the 2019 decision to withdraw California’s exemption was flawed in its assessment of applicable law and the facts at issue. The notice also states that requests for review of this decision must be filed by May 13, 2022. (See 87 FR 14332.)
  • Finally, a new GAO report, “Preventing Chemical Accidents: EPA Should Ensure Regulated Facilities Consider Climate Change Risks,” has been released. The report number is GAO-22-104494.

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