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

Articles Posted in Environmental Law
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The Nuclear Regulatory Commission has asserted that it has authority under the Atomic Energy Act to license temporary, away from reactor storage facilities for spent nuclear fuel. Based on that claim of authority, the Commission issued a license for Interim Storage Partners, LLC, to operate a temporary storage facility on the Permian Basin.Fasken Land and Minerals, Ltd., and Permian Basin Land and Royalty Owners (“PBLRO”) petitioned for review of the license. As did the State of Texas, arguing that the Atomic Energy Act doesn’t confer authority on the Commission to license such a facility.The Fifth Circuit granted Texas’ petition for review and vacated the license, finding that the Atomic Energy Act does not confer on the Commission the broad authority it claims to issue licenses for private parties to store spent nuclear fuel away from the reactor. And the Nuclear Waste Policy Act establishes a comprehensive statutory scheme for dealing with nuclear waste generated from commercial nuclear power generation, thereby foreclosing the Commission’s claim of authority. View "State of Texas v. NRC" on Justia Law

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Several collections of residents near Jefferson Parish Landfill sued the landfill’s owner (Jefferson Parish) and its operators (four companies). This mandamus action arises out of the Eastern District of Louisiana’s case management of two of those lawsuits: the Ictech-Bendeck class action and the Addison mass action. The Ictech-Bendeck class action plaintiffs seek damages on a state-law nuisance theory under Louisiana Civil Code articles 667, 668, and 669. The Addison mass action plaintiffs seek damages from the same defendants, although they plead claims for both nuisance and negligence. The district court granted in part and denied in part Petitioners’ motion for summary judgment against some of the Addison plaintiffs. Then on April 17 the district court adopted a new case management order drafted by the parties that scheduled a September 2023 trial for several of the Addison plaintiffs.   The Fifth Circuit denied Petitioners' petition for mandamus relief. The court explained that mandamus is an extraordinary form of relief saved for the rare case in which there has been a “usurpation of judicial power” or a “clear abuse of discretion.” The court explained that mandamus relief is not for testing novel legal theories. The court wrote that Petitioners’ theory is not merely new; it is also wrong. Rule 23 establishes a mechanism for plaintiffs to pursue their claims as a class. It does not cause the filing of a putative class action to universally estop all separate but related actions from proceeding to the merits until the class-certification process concludes in the putative class action, after years of motions practice. View "In Re Jefferson Parish" on Justia Law

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For decades, a facility has allegedly emitted dangerous levels of a chemical called Ethylene Oxide (“EtO”). The dangerous properties of the chemical were not widely known outside the scientific community, so it was not until a local law firm began advertising potential lawsuits. Fourteen plaintiffs eventually sued. The case was severed, and the instant case is the first to reach the court. The district court granted Shell’s and Evonik’s motions to dismiss. The court concluded that all claims predicated on Plaintiff’s wife’s death were time-barred and that Plaintiff had not properly pleaded damages for the claims based on his own fear of cancer. Plaintiff appealed.   The Fifth Circuit affirmed the finding of improper joinder. The court reversed and remanded Plaintiff’s claims predicated on his wife’s death. The court vacated the denial of leave to amend the claims predicated on Jack’s emotional injuries, as pleaded against Evonik. The court explained that Plaintiff, who had no connections to the plant, had lived in the same small town all his life, was computer illiterate, and had no medical training, could not be expected to hunt down answers to a problem when there was absolutely no suggestion, at the time of the diagnosis, that any out-of-the-ordinary problem existed. Thus the court reversed and remanded this claim to the district court for further factual development as to when Plaintiff reasonably could have discovered the allegedly tortious cause of his wife’s diagnosis and death. View "Jack v. Evonik Corporation" on Justia Law

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The National Marine Fisheries Service promulgated a rule requiring shrimp trawlers 25 feet or longer operating in offshore waters from North Carolina to Texas to install turtle excluder devices (TEDs), subject to a few preconditions. In 2012, NMFS proposed a more restrictive rule requiring TEDs for skimmer trawlers. The Final Rule required TEDs on all skimmer trawlers over 40 feet, including those that operate inshore. Louisiana’s Department of Wildlife and Fisheries (LDWF) sued NMFS under the Administrative Procedure Act, challenging the Final Rule as arbitrary and capricious. Louisiana moved for summary judgment, focusing on the merits of its claims. NMFS opposed and filed a cross-motion for summary judgment. The district court granted NMFS’s motion, holding that Louisiana had not carried its summary judgment burden to establish standing.   The Fifth Circuit affirmed. The court held that based on the record and procedural history of the case, the district court did not err in concluding that Louisiana failed to establish that it has standing to challenge the NMFS’s, Final Rule. The court reasoned that while the Final Rule’s EIS noted that the rule would adversely affect the shrimping industry across the Gulf of Mexico, Louisiana failed to provide evidence, particularly substantiating the rule’s impact on its shrimping industry or, ergo, “a sufficiently substantial segment of its population.” Nor does Louisiana’s invocation of the “special solicitude” afforded States in the standing analysis rescue this argument, or for that matter, the State’s other arguments. View "Louisiana State v. NOAA" on Justia Law

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Gold Coast Commodities, Inc. makes animal feed using saponified poultry and plant fats at its Rankin County, Mississippi facility. Because its production process involves, among other things, old restaurant grease and sulfuric acid, Gold Coast is left with about 6,000 gallons of oily, “highly acidic,” and “extremely hot” wastewater each week. The City of Brandon, Mississippi, told a state agency that it believed Gold Coast was “discharging” that “oily, low-pH wastewater” into the public sewers. As a result, the Mississippi Department of Environmental Quality launched an investigation. Two months before the Department’s investigation, Gold Coast purchased a pollution liability policy from Crum & Forster Specialty Insurance Company. After the City filed suit, Gold Coast—seeking coverage under the provisions of its Policy—notified the insurer of its potential liability. But Crum & Forster refused to defend Gold Coast. The insurer insisted that because the Policy only covers accidents. The district court agreed with Crum & Forster—that the City wasn’t alleging an accident.   The Fifth Circuit affirmed. The court wrote that here, the Policy is governed by Mississippi law. In Mississippi, whether an insurer has a duty to defend against a third-party lawsuit “depends upon the policy's language.” The district court found that the “overarching” theme of the City’s complaint, regardless of the accompanying “legal labels,” is that Gold Coast deliberately dumped wastewater into the public sewers. The court agreed with the district court and held that Gold Coast isn’t entitled to a defense from Crum & Forster. View "Gold Coast v. Crum & Forster Spclt" on Justia Law

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the Biden Administration issued an executive order that re-established an interagency working group (“Working Group”) to formulate guidance on the “social cost of greenhouse gases.” That order directed the Working Group to publish dollar estimates quantifying changes in carbon, methane, and nitrous oxide emissions (collectively, “greenhouse gases”) for consideration by federal agencies when policymaking. Working Group has since published “Interim Estimates” based largely on the findings of its predecessor working group. The Plaintiffs-States (“Plaintiffs”) challenge E.O. 13990 and the Interim Estimates as procedurally invalid, arbitrary and capricious, inconsistent with various agency-specific statutes, and ultra vires. They obtained a preliminary injunction in the district court. Defendants appealed, and the Fifth Circuit panel stayed the injunction.   The Fifth Circuit dismissed this action because Plaintiffs have failed to meet their burden to prove standing. Plaintiffs’ allegations of “injury in fact” rely on a chain of hypotheticals: federal agencies may (or may not) premise their actions on the Interim Estimates in a manner that may (or may not) burden the States. Such injuries do not flow from the Interim Estimates but instead from potential future regulations, i.e., final rules that are subject to their own legislated avenues of scrutiny, dialogue, and judicial review on an appropriately developed record. View "State of Louisiana v. Biden" on Justia Law

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Petitioner Cactus Canyon Quarries, Inc. (“Cactus Canyon”) appeals a decision by an Administrative Law Judge (ALJ) of the Federal Mine Safety and Health Review Commission (“Commission”). In 2020, Cactus Canyon was issued three citations by the Mine Safety and Health Administration (MSHA).   The Fifth Circuit denied Cactus Canyon’s petition, holding that the ALJ properly interpreted Section 56.14101(a)(3) to include the low brake pressure alarm as a component of the truck’s “braking system.” Cactus Canyon contends that the alarm is not such a component because it has no effect on the braking system’s ability to stop and hold equipment. But the plain language and purpose support the inclusion of the alarm in the “braking system.” The court concluded that the braking standard unambiguously supports the Government’s interpretation. Since a “system”—by definition at the time of the standard’s passage—is composed of parts, the Section’s reference to “braking systems” extends to its related components, including those that do not simply function to stop and hold the vehicle. View "Cactus Canyon Quarries v. MSHR" on Justia Law

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Plaintiffs, in this case, are a group of Mississippi municipalities and associations harmed and threatened by this turn of events. They sued the Army Corps of Engineers (the “Corps”) under Administrative Procedure Act (APA) Section 706(1) for the Corps’ refusal to prepare a supplemental Environmental Impact Statement (EIS) as assertedly required by NEPA and accompanying regulations. Invoking the federal government’s sovereign immunity, the Corps moved to dismiss for lack of subject matter jurisdiction. The parties agreed on the legal question at issue—namely, whether NEPA and related regulations impose on the Corps a discrete duty to act that a federal court can compel it to honor under APA Section 706(1)—but disagreed on the answer to the question.   The Fifth Circuit affirmed the district court’s ruling granting summary judgment to the Corps. The court explained that because the Corps has no duty to prepare the supplemental EIS the plaintiffs seek, Plaintiffs have no APA claim for unlawful agency inaction, and the Corps is immune from their suit claiming otherwise. For better or worse, Congress and the Corps have authority to act on Plaintiffs’ dire environmental concerns. The federal courts do not. View "Harrison County, MS v. U.S. Army Corps" on Justia Law

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Plaintiff began working as an environmental, safety, and health specialist at Targa’s Venice, Louisiana plant. He alleged that Targa violated the Louisiana Environmental Whistleblower Statute (“LEWS”) by discharging him after he refused and reported a manager’s directive to dilute sewage samples. The district court denied Targa’s motion for summary judgment and, following a bench trial, rendered judgment for Plaintiff. Targa argues on appeal that Plaintiff’s report of the manager’s directive and refusal to comply do not constitute “protected activities” under LEWS.     The court certified questions to the Louisiana Supreme Court, explaining that certification is necessary because the court lacks clear guidance from the Louisiana Supreme Court on how to resolve these issues, and the outcome is determinative of the entire appeal. The certified questions are: (1) Whether refusals to engage in illegal or environmentally damaging activities are “disclosures” under the current version of the Louisiana Environmental Whistleblower Statute, La. Stat. Ann. 30:2027; and (2) Whether the Louisiana Environmental Whistleblower Statute affords protection to an employee who reports to his supervisor an activity, policy, or practice of an employer which he reasonably believes is in violation of an environmental law, rule, or regulation, where reporting violations of environmental law, rules, or regulations, is a part of the employee’s normal job responsibilities. View "Menard v. Targa Resources" on Justia Law

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Petitioners Shrimpers and Fishermen of the RGV, Sierra Club, and Save RGV from LNG (collectively, “Petitioners”) challenge the issuance of a Clean Water Act (“CWA”) permit by the U.S. Army Corps of Engineers (the “Corps”). Petitioners allege that the Corps’ permit issuance violated the CWA and its implementing regulations.   The Fifth Circuit denied the petition for review, holding that the Corps approved the least environmentally damaging practicable alternative presented before it during the permitting process and did not act arbitrarily in its evaluation of pipeline construction impacts and mitigation efforts. The court explained Petitioners’ first set of arguments centers on the Corps’ estimation that restoration will occur within one year. They state that the Corps did not consider the full construction period when quantifying the duration of impacts, which they allege is improper. However, they supply no evidence that the construction period must be, or even that it typically is, included when assessing whether impacts are temporary.   Further, the Corps’ analysis also comports with the EIS, which estimates that herbaceous vegetation will regenerate “within 1 to 3 years.” The EIS estimation necessarily includes the finding that vegetation may revegetate in one year, as the Corps concluded. Finally, the EPA feedback Petitioners relied upon does not consider the approved compensatory mitigation plan or the special conditions of the permit because the comments are from 2015 and 2018— well before the current permit (and even the original permit) was approved. The Corps considered this feedback and aligned its ultimate approach with the EPA’s recommendations. View "Shrimpers v. United States Army Corps" on Justia Law