On October 29, 2024 in Dawson v. Murphy, et al., the New Jersey Superior Court Appellate Division affirmed the trial court’s order denying Plaintiffs leave to amend their complaint to assert a claim that New Jersey’s investment of state pension funds into oil and gas companies which allegedly harm the environment constitutes a violation of plaintiffs’ rights under the New Jersey Civil Rights Act (“NJCRA”).  No. A-3083-22, 2024 WL 4601708 (N.J. Super. App. Div. Oct. 29, 2024).  In an unpublished opinion, the Court held that that the New Jersey Constitution does not guarantee a right to a stable environment and therefore the state’s investments did not violate Plaintiffs’ constitutional rights.  Read More »

Share | Email| Comments|  Topics: Citizen Suit, Climate Change, Environmental Justice, Greenhouse Gas, New Jersey, New Jersey Civil Rights Act, Oil and Gas, Public Trust Doctrine

On January 3, 2024, the United States Court of Appeals for the Tenth Circuit reversed a district court decision that held that a Colorado gold mining company’s operation of four settling ponds constituted an unpermitted discharge of pollutants into navigable waters under the Clean Water Act (“CWA”).  In Stone v. High Mountain Mining Company, No. 22-1340 (10th Cir. 2024), the Tenth Circuit held that the district court did not correctly follow the Supreme Court’s decision in County of Maui v. Hawaii, 140 S. Ct. 1462 (2020) regarding the CWA’s applicability to indirect discharges to navigable waters. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, NPDES, Tenth Circuit

In an issue of first impression, in Matter of Proposed Construction of Compressor Station (CS327), No. A-3616-20, 2023 WL 5614411 (N. J. Super. Ct. Aug. 31, 2023), the New Jersey Superior Court rejected the New Jersey Department of Environmental Protection (“DEP”)’s interpretation of the Highlands Water Protection and Planning Act (the “Highlands Act”) and found that a permittee’s project upgrade must be “routine” to be exempted from the strict permitting requirements of the Highlands Act. Read More »

Share | Email| Comments|  Topics: Chevron Deference, Citizen Suit, New Jersey, Oil and Gas, Permits, Pipelines, Wetlands

On July 25, 2023, a Third Circuit panel rejected an environmental group’s challenge of federally approved changes to Pennsylvania’s State Implementation Plan (“SIP”),  holding that the Environmental Protection Agency (“EPA”) emissions-based analysis did not violate the Clean Air Act (“CAA”). Ctr. for Biological Diversity v. U.S. Env’t Prot. Agency, 2023 WL 471884, at *6 (3d Cir. 2023). The panel’s reasoning focused on a close statutory reading of §7410 of the CAA, which prevents EPA from approving any SIP revision that would “interfere with any applicable requirement for attainment and reasonable further progress” in reaching the National Ambient Air Quality Standards (“NAAQS”). Id. at *4. NAAQS are air quality benchmarks that each state must work toward by reducing their air pollution levels. Id. at *1. Ultimately, the Third Circuit held that Pennsylvania’s revisions did not interfere with NAAQS attainment because Pennsylvania reasonably concluded that emissions would likely decrease under the source specific requirements imposed by the revised plan. Id. at *4. Read More »

Share | Email| Comments|  Topics: Air, Citizen Suit, Clean Air Act, Climate Change, Greenhouse Gas, HAPs, Hazardous Air Pollutants, Legislation, Pennsylvania, Rulemaking, Third Circuit

This post was authored by Alice Douglas, with contributions from Summer Associate Reilly Wright 

On July 5, 2023, the United States Department of the Interior’s Bureau of Ocean Energy Management (BOEM) approved the largest offshore wind energy project to date—known as Ocean Wind 1—which will entail the construction of up to 98 wind turbines and up to 3 offshore substations off the coast of New Jersey over the next two years.  Ocean Wind 1, financed by the Danish company Orsted, is the third offshore wind energy project to gain approval by the Biden administration, following the Vineyard Wind project off the coast of Massachusetts and the South Fork Wind project off the coast of Rhode Island and New York, which are both currently under construction. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Citizen Suit, Climate Change, Endangered Species Act, Energy, NEPA, Permits, Standing

That federal agencies enjoy numerous advantages in defending against legal challenges to their administrative decision-making is a fact of administrative law.  But these advantages extend beyond the favorable standards of review that typically apply to their decisions.  An agency can, for example, sometimes short circuit what might be a meritorious appeal by seeking a “voluntary remand” from the Court, thereby potentially affording itself more control over any reconsideration while avoiding creating unfavorable precedent.  As a reminder of this, the Sixth Circuit recently held that EPA was entitled to reconsider one of its Clean Air Act (CAA) rulemakings, namely its decision to remove the air nuisance rule (ANR), a broad standard that generally prohibited nuisance emissions that endangered the “health, safety, or welfare of the public,” from Ohio’s State Implementation Plan (SIP), without the Court vacating EPA’s underlying decision.  Sierra Club et al. v. EPA, No. 21-3057, 2023 WL 1873168, at * 1 (6th Cir. Feb. 10, 2023).    Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Citizen Suit, Clean Air Act, Sixth Circuit, Standing

In order to bring a citizen suit in federal district court under the Clean Water Act, 33 USC  § 1365(a)(1), the plaintiff must first give “notice of the alleged violation” to the alleged violator, the EPA, and the State at least 60 days prior to commencing suit. In  Shark River Cleanup Coalition v. Township of Wall; Estate of Fred McDowell Jr., (No. 21-2060, 3d Cir. August 24, 2022), the Third Circuit Court of Appeals found that the district court erred in its finding that the notice was inadequate because it had not adequately identified the location of the alleged violation as required by the EPA regulations implementing the statutory notice requirement, but upheld the dismissal of the lawsuit on an alternate ground not reached by the district court – that the notice that was given was inadequate because it did not provide “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated” also as required by EPA’s regulations. 40 C.F.R. §135.3(a). Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Federal Jurisdiction, New Jersey, Statutory Notice, Subject Matter Jurisdiction, Third Circuit, Waste

Can plaintiffs in a citizen suit piggyback on existing governmental enforcement action and enforce the same alleged violation under the Clean Water Act (“CWA”)? Yes, as long as the citizen suit does not seek civil penalties, according to the First Circuit in The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, No. 19-2095, __ F. 4^th __ (1st Cir. 2022).  The First Circuit, sitting en banc, held that under the CWA, administrative enforcement action by the government precludes only a citizen’s “civil penalty action,” which the Court interpreted to mean an action seeking civil penalties.  A citizen suit seeking other forms of relief, i.e. injunctive or declaratory, however, could proceed notwithstanding the government’s action.   Read More »

Share | Email| Comments|  Topics: Citizen Suit, Civil Penalties, Clean Water Act, Cleanup, Declaratory Relief, Enforcement Action, First Circuit, Injunction, Stormwater, Water

This Blog Post was authored by Omar Khodor, a summer associate.

On June 23, 2021, the Ninth Circuit, in directing the lower court to dismiss a citizen’s suit claim under the Clean Water Act (“CWA”), held that the CWA did not abrogate tribal sovereign immunity. Deschutes River All. v. Portland Gen. Elec. Co., No. 18-35867, 2021 WL 2559477 (9th Cir. June 23, 2021). To abrogate a Tribe’s sovereign immunity, the Ninth Circuit explained that a statute must convey “perfect confidence” that Congress intended to abrogate tribal sovereign immunity. Id. at 14. It further found that the CWA does not unequivocally do so because Section 1365 – a section explicitly dealing with United States and governmental sovereign immunity – does not mention tribal sovereign immunity. Id. at 15-16. Rather, Section 1365 states that “any citizen may commence a civil action on his own behalf . . . against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution).” 33 U.S.C. § 1365. Although Section 1362(5) of the CWA goes on to define “any person” as a municipality (among other things), and Section 1362(4) further defines a “municipality” as including an “Indian Tribe or an authorized Indian Tribal organization,” the court determined that Congress had not clearly intended to abrogate tribal sovereign immunity because Tribes are not included in Section 1365. Deschutes River All., 2021 WL 2559477 at *15-16. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Energy, Federal Procedure, Ninth Circuit, Procedure, Sovereign Immunity, Tribal Lands

This Blog Post was authored by Timothy Johnson, a summer associate.

Earlier this month, the Commonwealth Court of Pennsylvania concluded that the Pennsylvania Environmental Hearing Board (EHB) erred in its dismissal of the petitioners’ appeal of the approval of a compressor station plan by the Pennsylvania Department of Environmental Protection (PADEP) for lack of subject matter jurisdiction. Cole v. Pennsylvania Dep't of Env't Prot., No. 1577 C.D. 2019, 2021 WL 2420667 (Pa. Cmwlth. 2021). In doing so, the Court held that Section 717r(d)(1) of the federal Natural Gas Act, which provides that federal courts have exclusive jurisdiction over “civil actions” for review of an approval or denial of a permit or approval required by federal law, does not preclude state administrative agency review of state permitting decisions. Accordingly, the EHB’s review of the matter was not preempted. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Air, Citizen Suit, Clean Air Act, EHB, Federal Energy Regulatory Commission, FERC, Hearing Board, Natural Gas Act, Oil and Gas, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Preemption, Subject Matter Jurisdiction