Justia U.S. 5th Circuit Court of Appeals Opinion Summaries

Articles Posted in Environmental Law
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The Fifth Circuit affirmed the district court's dismissal with prejudice of Gordon Plaza's complaint, filed under the citizen suit provision of the Resource Conservation and Recovery Act (RCRA) against the City. Plaintiffs allege that a former landfill site remains contaminated with hazardous chemicals causing residents to suffer from cancer and other health conditions.Because the court found that the City raised its defense under 42 U.S.C. 6972(b)(2)(B)(iv) in both the 2018 Litigation and in its motion to dismiss in the instant suit, the court held that the district court did not abuse its discretion by considering it. The court also held that neither Chevron nor Skidmore deference is warranted; the City's maintenance obligations under the Decree are "removal" actions under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA); and Gordon Plaza has failed to plausibly plead that the City was not "diligently" conducting a removal action. Finally, based on Gordon Plaza's repeated failure to cure its pleadings and lack of diligence to present any indication of the factual allegations with which it seeks to amend its complaint, the court held that the district court did not abuse its discretion in denying leave to amend. View "Residents of Gordon Plaza, Inc. v. Cantrell" on Justia Law

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BP retained the Responders (O’Brien’s and NRC) for nearly $2 billion to assist with the cleanup of the Deepwater Horizon oil spill. Thousands of the Responders' workers filed personal injury lawsuits against BP, which were consolidated and organized into “pleading bundles.” The B3 bundle included “all claims for personal injury and/or medical monitoring for exposure or other injury occurring after the explosion and fire of April 20, 2010.” In 2012, BP entered the “Medical Settlement” on the B3 claims with a defined settlement class. The opt-out deadline closed in October 2012. The Medical Settlement created a new type of claim for latent injuries, BackEnd Litigation Option (BELO) claims. After the settlement, plaintiffs could bring opt-out B3 claims if they did not participate in the settlement, and BELO claims if they were class members who alleged latent injuries and followed the approved process. Responders were aware of the settlement before the district court approved it but neither Responder had control over the negotiations, nor did either approve the settlement.In 2017, BP sought indemnification for 2,000 BELO claims by employees of the Responders. The Fifth Circuit held that BP was an additional insured up to the minimum amount required by its contract with O’Brien’s; the insurance policies maintained by O’Brien’s cannot be combined to satisfy the minimum amount. O’Brien’s is not required to indemnify BP because BP materially breached its indemnification provision with respect to the BELO claims. View "O'Brien's Response Management, L.L.C. v. BP Exploration & Production, Inc." on Justia Law

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In the first suit between the parties, the state trial court entered judgment against plaintiffs in August 2018. Plaintiffs then filed this second suit in federal court, asserting the same state law claims in addition to claims under the federal Clean Water Act (CWA).The Fifth Circuit affirmed the district court's dismissal of the state law claims as precluded by res judicata; dismissal of the CWA claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim; and denial of plaintiffs' motion for injunctive relief. In this case, the non-CWA claims existed at the time of the state court judgment, and are the same as those asserted in the state court litigation. Furthermore, plaintiffs have forfeited any argument that the district court erred in dismissing the CWA allegations in the original, first, and second amended complaints. The court also affirmed the district court's denial of plaintiffs' subsequent Rule 59(e) motion for reconsideration, which included a request for leave to file a third amended complaint. View "Stevens v. St. Tammany Parish Government" on Justia Law

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Plaintiff filed suit alleging that neoprene production from the Pontchartrain Works Facility (PWF) exposed residents of St. John the Baptist Parish, Louisiana, to unsafe levels of chloroprene. Plaintiff filed suit against Denka and DuPont—the current and former owners of the facility—as well as the DOH and DEQ in state court. After removal to federal court, the district court denied plaintiff's motion to remand, granted each defendants' motion to dismiss, and dismissed the amended petition for failure to state a claim.After determining that removal was proper under the Class Action Fairness Act (CAFA) and that the state agencies have consented to federal jurisdiction, the Fifth Circuit concluded that the equitable doctrine of contra non velentem tolls prescription of plaintiff's claims against DuPont and DOH. Consistent with Louisiana's contra non valentem analysis as to what plaintiff reasonably knew or should have known at the time, the court disagreed that, on the record before it, plaintiff had constructive knowledge sufficient to trigger the running of prescription over a year before she filed suit in June 2018. Therefore, the court reversed the district court's holding that plaintiff's claims were prescribed.The court concluded that plaintiff's custodial liability claims against DuPont fail for the same reason as her claims against Denka: a failure to state a plausible duty and corresponding breach. The court agreed with the district court's grant of Denka's motion to dismiss for failure to state a plausible claim of negligence and strict custodial liability arising from Denka's past and current neoprene manufacturing at the PWF. In this case, plaintiff fails to adequately allege a duty owed by Denka, and consequently whether Denka breached such a duty. Finally, the court affirmed the district court's dismissal of plaintiff's declaratory relief claims against DEQ. The court remanded for further proceedings. View "Butler v. Denka Performance Elastomer, LLC" on Justia Law

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Petitioners filed a petition for review challenging the EPA's 2017 Rule, "Promulgation of Air Quality Implementation Plans; State of Texas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan." Petitioners also sought reconsideration of the 2017 Rule, contending that the 2017 Rule was adopted without following notice and comment requirements and that it was unlawful, arbitrary, and capricious in various ways. Petitioners and the EPA then filed a joint motion requesting the petition for review of the 2017 rule be held in abeyance pending the EPA's resolution of the petition for reconsideration and the completion of any reconsideration process. The Fifth Circuit granted the motion. The EPA subsequently issued the 2020 Rule. Petitioners sought review of the 2020 Rule and filed a motion requesting the D.C. Circuit to confirm that venue was proper in that court. Respondent-Intervenors jointly moved for reconsideration of an order denying without prejudice their motion to confirm venue and order transferring this consolidated proceeding to the Court of Appeals for the D.C. Circuit.The Fifth Circuit explained that it has employed a "first-filed" rule, much like the rule set forth in 28 U.S.C. 2112, when faced with a competing challenge to the same administrative action in another court of appeals. The court concluded that the 2020 Rule should be the agency action relied upon for purposes of section 2112 and the "first-filed" rule. Because petitioners first filed their challenge to the 2020 Rule in the D.C. Circuit, that court should be the first to determine the venue question. Finally, Respondent-Intervenors can show no prejudice from the court's orders consolidating and transferring the consolidated cases. Therefore, the court denied the motion for reconsideration. View "National Parks Conservation Ass'n v. EPA" on Justia Law

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The Fifth Circuit denied petitions for review of the Service's incidental take statement and biological opinion in connection with the construction and operation of a liquefied natural gas terminal in south Texas (the Annova project). The court held that the Service complied with its obligations under the Endangered Species Act in authorizing the harm or harassment of one ocelot or jaguarundi and in determining that the proposed project was not likely to jeopardize the continued existence of either cat.In this case, the incidental take statement is not arbitrary and capricious because it clearly specifies the anticipated take and specifies the amount or extent of the anticipated take. Furthermore, the reinitiation trigger is clear and enforceable. Finally, the failure to include the reasonable and prudent measures word-for-word in the terms and conditions does not render the incidental take statement arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. The court explained that the no-jeopardy conclusion is not arbitrary and capricious where the Service's conclusion was reached after evaluating both the direct and indirect effects of an action on the cats. The court rejected petitioners' challenge to the opinion's mitigation measures, namely the conservation of acreage, as arbitrary and capricious. View "Sierra Club v. Department of Interior" on Justia Law

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The Fifth Circuit denied petitions for review of the Service's incidental take statement and biological opinion in connection with the construction and operation of a liquefied natural gas terminal in south Texas (the Rio Grande project). The court held that the Service complied with its obligations under the Endangered Species Act in authorizing the harm or harassment of one ocelot or jaguarundi and in determining that the proposed project was not likely to jeopardize the continued existence of either cat.In this case, the incidental take statement is not arbitrary and capricious because it clearly specifies the anticipated take and specifies the amount or extent of the anticipated take. Furthermore, the reinitiation trigger is clear and enforceable. Finally, the failure to include the reasonable and prudent measures word-for-word in the terms and conditions does not render the incidental take statement arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. The court explained that the no-jeopardy conclusion is not arbitrary and capricious where the Service's conclusion was reached after evaluating both the direct and indirect effects of an action on the cats. View "Sierra Club v. Department of Interior" on Justia Law

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Since 2011, Jonesboro’s wastewater system has spewed sewage onto Stringer’s property and into her home during heavy rains. Stringer repeatedly complained to the town and its mayor, then brought a “citizen suit” under the Clean Water Act (CWA), 33 U.S.C. 1365, with constitutional claims under 42 U.S.C. 1983 for the uncompensated taking of her property and the mayor’s retaliation. Stringer ran against the mayor in 2014 and claims he retaliated by ignoring her pleas, getting the town to sue her frivolously, and refusing to provide sandbags. The Louisiana Departments of Health (LDOH) and Environmental Quality (LDEQ) have long known about the problems. LDEQ sent the town warning letters and issued compliance orders about unauthorized discharges, including those afflicting Stringer. LDOH issued a compliance order about the discharges on Stringer’s property, imposed mandatory ameliorative measures, and assessed a daily fine. The district court dismissed, finding that the CWA prohibits such suits when a state is addressing the problem through “comparable” state law and finding her section 1983 claims untimely under Louisiana’s one-year prescriptive period. The Fifth Circuit affirmed as to the section 1983 claims. Stringer was long aware of the underlying facts and failed to sue within a year. The Fifth Circuit reversed in part. The enforcement action to which the court pointed—the state health department’s enforcement of the sanitary code—is not “comparable” to the CWA under circuit precedent. View "Stringer v. Town of Jonesboro" on Justia Law

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The Fifth Circuit denied petitions for review by the State of Texas and Sierra Club, challenging the EPA's action designating Bexar County, Texas as in nonattainment and three neighboring counties as in attainment with the 2015 Ozone National Ambient Air Quality Standards (NAAQS).After determining that venue is proper in the Fifth Circuit, the court held that the relevant statutory language in the Clean Air Act grants EPA discretionary authority to make the changes it "deems necessary." The court also held that EPA's interpretation and implementation of the statute is reasonable. In this case, because Bexar County was not compliant with the 2015 NAAQS when EPA promulgated its designation, the court concluded that the Clean Air Act and the Administrative Procedure Act allowed the change. In regard to the three counties, the court concluded that EPA has not arbitrarily reversed its interpretation of "contribution" and EPA did not fail to articulate a rational connection between the facts in the record and its decision not to designate the disputed counties as nonattainment. In this case, EPA used a permissible, multi-factor analysis to determine that the contributions of Atascosa, Comal, and Guadalupe Counties to Bexar County's ambient ozone levels were insufficient to merit a nonattainment designation. View "Texas v. Environmental Protection Agency" on Justia Law

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The Fifth Circuit denied the petition for rehearing, withdrew its prior opinion, and substituted the following opinion.After ExxonMobil sought a revised Title V permit under the Clean Air Act concerning an expansion of a plant in Baytown, Texas, petitioners asked EPA to object on the grounds that the underlying Title I preconstruction permit allowing the expansion was invalid. EPA rejected petitioners' arguments and declined to object.The Fifth Circuit denied the petition for review, holding that EPA's interpretation that Title V permitting is not the appropriate vehicle for reexamining the substantive validity of underlying Title I preconstruction permits is independently persuasive. Therefore, EPA's interpretation is entitled to the mild form of deference recognized by Skidmore v. Swift & Co., 323 U.S. 134 (1944). View "Environmental Integrity Project v. Environmental Protection Agency" on Justia Law