Reversing the Fourth Circuit, the Supreme Court on Monday issued its opinion in United States Forest Service v. Cowpasture River Preservation Association, No. 18-1584 (June 15, 2020). In a 7-2 decision, Justice Thomas wrote for the majority that the Appalachian National Scenic Trail’s passage through United States National Forest land is best viewed as a grant of an easement to the National Park Service rather than a transfer of ownership of the underlying land. In doing so, the Court upheld the Forest Service’s right to permit a pipeline to run beneath the Trail under the Mineral Leasing Act (MLA). Read More »

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Today, the Supreme Court altered Clean Water Act jurisprudence when it vacated and remanded a closely-watched Ninth Circuit decision which pertained to the federal government’s authority to oversee of the migration of pollution through groundwater to navigable waters. See County of Maui, Hawaii v. Hawaii Wildlife Fund et al., No. 18-260, 590 U.S. ____ (Apr. 23, 2020). In writing for the 6-3 majority, Justice Breyer presented the central issue of the litigation as “whether the [Clean Water] Act ‘requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,’ here, ‘groundwater.’” Id. at 1 (internal citations omitted). The Court held that a permit issued under the Clean Water Act is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” Id. Because the “functional equivalent” standard is slightly amorphous, the Court introduced several factors to aid courts, the Environmental Protection Agency (EPA), and the regulated community in making permitting determinations. See Breyer Factors, below. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Contamination, Effluents, Groundwater, NPDES, Permits, Supreme Court, United States Supreme Court, Water

In a highly anticipated decision, on April 20, 2020, the U.S. Supreme Court ruled that state courts may award restoration damages to landowners who seek, under state law, a more expensive cleanup than that selected by EPA, but as potentially responsible parties under CERCLA they must first receive EPA’s approval of their alternative cleanup plan before they would be entitled to those damages. Atlantic Richfield Co. v. Christian, et al., No. 17-1498 (U.S. Apr. 20, 2020). Beyond its fact-specific holding, the opinion’s broader implications may have a significant impact on CERCLA cleanups and litigation going forward.   Read More »

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On June 21, 2019, the Supreme Court handed down a 5-4 decision in Knick v. Township of Scott, Pennsylvania, shaking up Fifth Amendment takings claim jurisprudence. Knick v. Township of Scott, Pennsylvania, 139 S.Ct. 2162 (2019). In Knick, the Court held that a property owner has an actionable Fifth Amendment takings claim at the moment a state or local government takes her property without paying just compensation, and that violation of the Fifth Amendment can be remedied in federal court via a civil rights action under 42 U.S.C. § 1983. The ruling overturned years of precedent that held that a plaintiff could not bring a takings claim in federal court against a state or local government until she had first exhausted her state court remedies. Knick specifically overruled Williamson County, the 1985 case which established the state-litigation requirement. Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Read More »

Share | Email| Comments|  Topics: Deeds, Due Process, Fair Market Value, Pennsylvania, Procedure, Property Value, Real Estate, Subject Matter Jurisdiction, Supreme Court, Takings, Takings Clause, United States Supreme Court, Zoning

Last month, a bare majority of the Supreme Court held in Kisor v. Wilkie, No. 18-15, 588 U.S. ___, that federal courts should still defer to an agency’s interpretation of its own regulations, a practice known as Auer deference, but only sometimes. In doing so, the Supreme Court narrowed the circumstances in which Auer deference is warranted by adopting a new five-part test that must be satisfied for it to apply. The decision has important ramifications for environmental practitioners because of the significance of regulations in environmental law. Read More »

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Late last month the Supreme Court of the United States kept alive private landowners’ challenge to a final rule that designated their land as “critical habitat” for the endangered Dusky Gopher Frog. Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., No. 17-71, 2018 WL 6174253 at *6 (2018) (slip opn.). The U.S. Fish and Wildlife Service designated the 1544-acre parcel in Louisiana—known as “Unit 1”—after it found the site “essential for the conservation of the species.” Id. The District Court and Fifth Circuit Court of Appeals deferred to the Service’s conclusion and upheld the designation. Id. The Supreme Court vacated and remanded. Id. at *7–8, 10. Focusing on the text of the Endangered Species Act, the Court held that: (1) a proposed site must be “habitat” for an endangered species before the Service can designate it as “habitat that is critical,” and (2) federal courts should review for an abuse of discretion the Service’s decision not to exclude a site from designation. Id. Read More »

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