In case you missed it...
| Date | 01 March 2020 |
32020 ENVIRONMENTAL LAW REPORTER 50 ELR 10249
IN THE NEWS
IN CASE YOU MISSED IT . . .
In the Courts
"In the Courts" contains full summaries of court cases reported in ELR Update during the month of Januar y 2020. They
are listed under the following categories: Air, Climate Change, Energy, Governance, Land Use, Natural Resources, Toxic
Substances, Water, and Wildlife. The summaries are then arranged alphabe tically by case name within each category. To
access ELR's entire collection of cour t cases and summaries, visit https://www.elr.info/judicial.
AIR
Ass’n of Washington Business v. Washington State Departm ent of
Ecology, No. 95885-8, 50 ELR 20021 (Wash. Jan. 16, 2020).
e Washington Supreme Court invalidated a ru le pro-
mulgated by the state’s Department of Ecology authorizing
regulation via emission standards of businesses t hat do not
directly emit greenhouse g ases (GHGs), but whose products
do. Industry groups and utility companies argued t he De-
partment lacked authority under t he Washington Clean Air
Act to promulgate the rule. e tria l court ruled that the De-
partment’s authority was limited to entities that introduced
contaminants into the ai r and did not include entities selling
commodities, and thus th at the rule was inval id. On appeal,
the Department argued that because the rule was based on a
type of emission— GHGs—it could cover businesses that did
not directly emit GHGs, but whose products eventually d id.
e appellate court found that t he Act’s denition of “emis-
sion standard” plainly limited their applicabilit y to actual
emitters, and thus that t he Department’s attempt to expand
the scope of the standard s exceeded its authority under the
Act. It therefore invalidated the ru le to the extent it regulated
nonemitters via an emission standard, but upheld the autho-
rized portions of the ru le that apply to actual emitters.
California v. United States Environmental Protection Agency,
vious order requiring it to comply with its 2016 Emission
Guidelines and Compliance Times for Municipal Solid
Waste Landlls. Eig ht states had argued t hat the Agency
failed to implement and enforce the guideli nes by, among
other things, failing to promulgate regulations for a federal
implementation plan (FIP) by the deadline imposed in t he
guidelines, in violation of the C AA. e court initially or-
dered EPA to promulgate the FIP no later than November
6, 2019. In response, EPA sought to delay its compliance
by issuing a new deadline for promulgating the regulations
under a separate rulema king. e court denied t he request,
concluding that if the Ag ency were allowed to extend its
own deadlines it would be able to avoid any lawsuit aimed
at forcing it to take action. e Agency t hen sought to stay
the initial order pending its appea l of the court’s later or-
der denying its request for an extension. e court fou nd
that EPA’s compliance with the initial deadline wa s not a
substantial burden bec ause the Agency had a lready promul-
gated and received comments on a proposed FIP, and that
the states continued to be harmed by the latene ss of the plan.
It again denied the Agency’s request to extend the initial
deadline for complying with t he guidelines.
CLIMATE CHANGE
Juliana v. United States, No. 18-36082, 50 ELR 20025 (9th
Cir. Jan. 17, 2020). e Ninth Circuit reversed a district court
ruling that a group of youths had standing to sue the U.S.
government for allegedly fai ling to act on climate change and
violating their right to a safe climate. e youths argued t hat
the government violated their constitutional ri ghts under the
Fifth and Ninth Amendments by continui ng to permit, au-
thorize, and subsidize the use of fossil fuels despite knowing
the risks, and sought to compel the government to develop
a plan to phase out fossil fuel emi ssions and reduce atmo-
spheric carbon dioxide. e district c ourt concluded that the
group had standing to sue, ra ised justiciable questions, and
stated a viable claim for inf ringement of a Fifth Amendment
due process right to a “climate system capable of sust aining
human life.” On appeal, the government argued t he group
lacked standing to pur sue its constitutional claims. e court
held, 2-1, that the group suciently alleged concrete and
particula rized injuries and that those injuries were caused by
carbon emissions from fossil f uel production, extrac tion, and
transportation, but that the injuries could not be redressed
by the court because de velopment of an eective remedial
plan necessari ly requires complex policy decisions that a re
entrusted to the executive and legislative branches, not the
judiciary. It therefore “reluctantly” concluded that the group’s
case must be made to the politica l branches or the electorate
Copyright © 2020 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
50 ELR 10250 ENVIRONMENTAL LAW REPORTER 32020
at large, and remanded to the d istrict court with instructions
to dismiss for lack of stand ing.
ENERGY
Briggs v. Southwestern Energy Production Co., No. 63 MAP
2018, 50 ELR 20027 (Pa. Jan. 22, 2020). e Pennsylva-
nia Supreme Court vacated a lower court ru ling that found
an energy developer trespa ssed on neighboring landowners’
property by extract ing natural gas from their propert y by way
of hydraulic fracturi ng without permission. e developer ar-
gued that the ext raction did not amount to trespass bec ause
of the rule of capture, which ma intains that t here is no li-
ability for draina ge of oil and gas from under another prop-
erty so long as there ha s been no trespass. e appellate court
concluded that hydraulic fract uring was dist inguishable
from conventional drilling because it extracted ga s trapped
in a shale formation by using ar ticial mean s to stimulate
the ow of the resource rather tha n tapping into reservoirs
within which gas ows freely, and thus that the rule of cap-
ture did not apply to such unconventional drillin g. e high
court, however, rejected the notion that the rule of captu re
was inapplicable. It thus ruled that the appellate court erred
by assuming th at either the use of hydraulic fracturing altered
the rule of capture or that where hydrau lic fracturing is used,
physical intrusion is a necess ary precondition for draina ge to
occur from underneath a nother property. It therefore vacated
and remanded to the appellate cour t for further proceedings.
GOVERNANCE
Advisory Opinion to the Attorney General re Right to Com-
petitive Energy Market for Customers of Investor-Owned Utili-
ties, No. SC19-328, 50 ELR 20029 (Fla. Jan. 9, 2020). In
an advisory opinion to Florida’s attorney general, the Florida
high court concluded that a proposed i nitiative to amend t he
Florida Constitution to restructu re the state’s electricity ma r-
kets should not be placed on the ballot. e attorney general
argued that the initiative’s title and summary fa iled to ade-
quately inform voters of the “true meaning a nd ramications
of the proposed amendment.” e court found that the ballot
summary a rmatively misleads voters to believe that the ini-
tiative grants a persona l right to sell electricity when, in fact,
the initiative at no point grants a free standing constitutiona l
right to sell electricity, and thus that the summary d id not
satisfy the state’s clarity requirements. It therefore concluded
that the initiative should not be included in the ba llot.
Center for Biological Diver sity v. Bern hardt, No. 18-35629, 50
ELR 20015 (9th Cir. Dec. 30, 2019). e Ninth Circuit af-
rmed a district cou rt’s dismis sal of an environmental group’s
request to compel DOI to reinstate the Refuges Rule, which
prohibited Alaska’s predator-control methods on national
wildlife refu ges as well as cer tain methods of hunting bears
and wolves. e group argued that C ongress’ joint resolution
disapproving the rule violated t he Take Care Clause by re-
quiring DOI to revoke a rule that t he Department deemed
necessary for ma naging the federa l wildlife ref uge system,
and thus prevented the Department from implementing its
constitutional duty to faith fully execute the laws. e court
found that the group failed to state a plau sible claim because
validly enacted legi slation requiring an agency to take a spec i-
ed action did not impinge on the Take Care Clause or vio-
late separation-of-powers principles. Congress properly enact-
ed the joint resolution, validly amending DOI’s authority to
administer nationa l wildlife refu ges in Alask a, and thus did
not prevent the president from exercising his constitutional
duty to faithfu lly execute the laws. e group also a rgued
that DOI acted ultra vire s in adhering to the joint resolution
and rescinding the ru le because the resolution was inva lid.
But the court found it lacked jurisdict ion to consider that
claim because enacting a joint resolution of disapproval is
an action under the Congressional Review Act (CR A), and
Congress intended for the CR A to preclude judicial re view. It
therefore armed dismissal.
El Paso, Texas, County of v. Trump, No. 19-51144, 50 ELR
20017 (5th Cir. Jan. 8, 2020). e Fifth Circuit blocked a
preliminary i njunction issued by a district court that had
barred the Trump Administration from using militar y funds
to build portions of a border wall along the U.S.-Mexico bor-
der. e district court had found that the Consolidated Ap-
propriations Act expressly forbade the Admi nistration from
diverting fund s appropriated for general military c onstruc-
tion to fund specic border barrier const ruction. On appeal,
the appellate court found th at the Administration was en-
titled to the same relief that it wa s aorded by the Supreme
Court’s decision to stay a similar injunction in the Ninth
Circuit because of the substa ntial likelihood that the parties
who led suit lacked standi ng. It therefore granted, 2-1, the
Administrat ion’s motion to stay the preliminary injunction.
Indigenous Environmental Network v. President Donald J.
Trump, No. CV-19-28-GF-BMM, 50 ELR 20005 (D. Mont.
Dec. 20, 2019). A district court denied a motion to dismiss
a challenge to President Trump’s issuance of a permit autho-
rizing a pipeline company to construct a cross-border seg-
ment of the Keystone XL oil pipeline. Environmental g roups
argued the permit’s unilateral aut horization of the pipeline
conicted with Congre ss’ exclusive power to regulate under
the Foreign Commerce Clause. e president moved to dis-
miss, but the court found the groups pled a plausible cla im
that merited further a rgument and analy sis. e groups next
argued the president lacked authority to gr ant permission to
construct the segment across por tions of federal land because
only Congress possesse d power through the Property Clause
to dispose and make r ules and regulat ions respecting federal
land. e court aga in denied the motion to dismiss, nding
that Congress posse ssed “complete control” over federal land
and that the president arguably interfered with Congress’
constitutional power by issuing t he permit without requiring
the congressionally approved comprehensive State Depart-
ment review process set forth in E xecutive Order No. 13337.
e groups also argued t he president violated Executive Or-
Copyright © 2020 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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