Clean Air Act Challenges | Clean Water Act Challenges | Hazardous Waste | Hydropower | Maryland Critical Area Cases | Maryland Habitat and Natural Resources Cases | Natural Gas | Virginia Stormwater Management
MARYLAND 126 PETITION DEADLINE SUIT
United States District Court for the District of Maryland
Chesapeake Bay Foundation, Inc, et. al. v. United States Environmental Protection Agency, et. al.
Case No.: 1:17-cv-02873-JKB
Maryland suffers from high concentrations of ground level ozone or smog largely due to the pollution emitted from coal fired power plants (electric generating units) located in upwind states. Despite several meetings between Maryland and those states, none would to take action to curb their pollution. The Clean Air Act (CAA) includes a "Good Neighbor Provision" requiring each state to ensure that its air pollution will not interfere with the air quality standards in downwind or neighboring states. If a state does not comply, a downwind state can file a petition under Section 126 of the Act with US Environmental Protection Agency (EPA) asking it to step in.
On November 16, 2016, the State of Maryland submitted a Petition to the Administrator of the federal Environmental Protection Agency. The Petition requested that EPA make a formal finding that the air pollution from 36 power plant units in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia are emitting air pollutants in violation of the provisions of the CAA and are significantly contributing to Maryland's inability to meet the federal ground level ozone standard thereby creating a human health hazard.
The CAA includes a "Good Neighbor Provision" requiring each state to ensure that its air pollution will not interfere with the air quality standards in downwind or neighboring states. Under the CAA, the EPA is required to hold a public hearing and respond to Maryland's petition within 60 days. EPA did not respond to Maryland's petition nor did it hold a public hearing.
As a result, on July 20, 2017, Maryland and the Chesapeake Bay Foundation ("CBF") filed separate notices with EPA, pursuant to 42 U.S.C § 7604(b), of their intentions to file a citizen suit against the EPA and the Administrator of the EPA for failure to perform a nondiscretionary duty as mandated by Section 126 of the CAA.
EPA failed to respond to Maryland and CBF's notices. On September 27th, Maryland filed a Complaint for Injunctive Relief with the United States District Court for the District of Maryland against the EPA and its Administrator, Scott Pruitt. CBF and our partners, Adirondack Council, Chesapeake Climate Action Network, Environmental Defense Fund, Environmental Integrity Project, Physicians for Social Responsibility, Chesapeake, Inc. and Sierra Club filed a similar Complaint on October 4th. CBF's case was consilidated with the state's case.
On December 19th, Plaintiffs filed a Joint Motion for Summary Judgment based on the fact that the Defendants failed to take action after receiving Maryland’s petition pursuant to section 126 of the Clean Air Act, and therefore the Plaintiffs are entitled to judgment as a matter of law. Plaintiffs also requested the Court to order the Defendants to act on Maryland’s Petition by either granting or denying the petition within sixty days. The United States filed an opposition to Plaintiff’s Motion and a Cross Motion on Remedy requesting until December 31, 2018 to issue a final agency action on the State’s petition. On June 13, 2018, the Court granted Plaintiff's Motion for Summary Judgement and Ordered the EPA to take final agency action by September 15th.
In the interim, the EPA published a notice in the Federal Register on June 8, 2018 proposing to deny the petitions submitted by the state of Maryland and four petitions submitted by the state of Delaware. CBF attended the public hearing held on June 22nd and submitted comments by the July 23rd deadline.
This case is being handled by the Vice President for Litigation Jon Mueller along with litigation staff attorney Ariel Solaski.
United States Court of Appeals for the District of Columbia Circuit
Environmental Defense Fund, et. al. v. United States Environmental Protection Agency
Case No.: 18-1190
A "glider" is a heavy-duty diesel freight truck that combines a brand-new truck body (a "glider" kit) with a rebuilt engine and transmission. While they function similarly as new trucks, gliders emit more air pollution because they do not incorporate pollution controls that new trucks are required to have. One of the pollutants these trucks emit is oxides of Nitrogen (NOx) which is deposited on land and water making it a Chesapeake Bay pollutant.
In 2016, EPA, the Department of Transportation and the National Highway Traffic Safety Administration issued a final Rule restricting the number of glider trucks that could be built each year with the number decreasing each year. Glider trucks built in excess of the cap would be classified as new trucks and subject to the pollution control requirements of the Clean Air Act (CAA). EPA estimated in 2016 that 10,000 glider trucks are constructed per year and glider vehicles on the road in 2025 would emit nearly 300,000 tons of NOx annually without the 2016 Rule restrictions.
In 2017, EPA proposed a new rule that would essentially gut the 2016 glider rule claiming that the engines were not new under the CAA, and therefore EPA did not have authority to regulate the glider truck industry. CBF filed comments in opposition as the failure to implement the 2016 rule would add additional nitrogen loads to the Chesapeake Bay watershed.
On July 6, 2018, in his last day in office, former EPA Administrator Scott Pruitt took an unprecedented and illegal action and issued a memorandum providing assurance to the glider tuck industry that it would not enforce the terms of the 2016 Rule without going through the proper judicial review procedures. As a result, on July 17th, Environmental Defense Fund (EDF), Center for Biological Diversity and Sierra Club filed an emergency motion with the D.C. Circuit Court of Appeals asking the court to issue an emergency order halting the effectiveness of EPA's "No Action Assurance" and declare it illegal and void. The court granted the request for an emergency stay. CBF filed a Motion to Intervene in this proceeding on July 25th. Thereafter, Acting EPA Administrator, Andrew Wheeler, revoked the "no action assurance" and EPA asked the Court to dismiss the appeal.
This case was being handled by CBF's Vice-President for Litigation, Jon Mueller and litigation staff attorney Brittany Wright.
U.S. Court of Appeals for the D.C. Circuit
White Stallion Energy Center, et al. v. EPA
Case No.: 12-1100
Since 2005, CBF has successfully partnered with other organizations in court to require stringent controls on coal-fired power plants to reduce air borne pollution. In collaboration with others, CBF’s legal actions led to the creation of federal regulations, called the Mercury and Air Toxics Standards (MATS), which are designed to limit the emission of mercury and other toxic air pollutants. The reduction of airborne mercury will reduce the amount of mercury present in fish found within the Chesapeake Bay watershed and protect brain development in children, among other things. However, the MATS have been repeatedly challenged in court by the electric generating industry and some states. While those actions have been defeated in the lower courts, the challengers asked the U.S. Supreme Court to overturn those decisions and vacate the MATS.
CBF joined in the filing of a brief opposing the challengers' petition for certiorari. Unfortunately, the petition was granted and the case was heard by the Supreme Court on March 25, 2015, to consider whether EPA should have evaluated the costs of the new rule versus the benefits to human health and the environment before it decided to develop the regulations.
On June 19, 2015, in a 5-4 decision, the United States Supreme Court ruled against EPA and remanded the case back to the United States Court of Appeals for the D.C. Circuit for review of the economic impacts of the rule. The Supreme Court found EPA should have considered industry's costs to comply with the standards before it developed the rule. This, despite the fact that EPA did consider those costs after deciding that mercury and other hazardous pollutants emitted by power plants presented a significant health risk requiring regulation.
After the case was remanded, the National Mining Association and other parties asked the court to throw the standards out. On December 15, 2015, the D.C. Circuit rejected this attempt and remanded the proceedings to EPA without vacating the Mercury and Air Toxics Standards final rule. Undeterred, on March 14, 2016, the coal-industry allied states filed another Petition for Writ of Certiorari with the United States Supreme Court. The Petitioners are requesting the Court review the D.C. Circuit Court's decision not to vacate the MATS rule. CBF joined the Intervenor's Brief in Opposition to the Petition on April 13th. On June 13th, the United States Supreme Court denied the industries Petition and the case continued in the Circuit Court.
EPA completed its economic analysis supporting the rule and on April 25, 2016, submitted its Supplemental Findings in response to Michigan v. EPA. A day later, Murray Energy and other industry groups filed a petition seeking review of EPA's findings in the United States Court of Appeals for the D.C. Circuit. CBF and other environmental groups and organizations filed a Motion For Leave to Intervene opposing the petition. Our Motion to Intervene was granted on August 3, 2016.
Oral Arguments were scheduled for May 18, 2017 in the United States Court of Appeals for the D.C. Circuit. However, the government moved to hold the hearing in abeyance while it reconsidered its position supporting the rule in response to a recent Presidential Executive Order. The government must give the court periodic status reports on its progress reviewing the rule. It is expected that the agency will go through administrative rulemaking and attempt to rescind the rule. We continue to monitor the Federal Register for any developments and will take appropriate action to protect the rule which is already in place and with the majority of affected power plants in compliance reducing mercury and air toxics.
CBF has intervened in another industry lawsuit targeting the mercury and air toxics standards for power plants. In this challenge, industry groups have appealed EPA's denial of their petitions asking the agency to reconsider the standards. This case is pending in the United States Court of Appeals for the District of Columbia Circuit and on hold pending resolution of the above appeal challenging the MATS rule.
These matters are being handled by counsel for Earthjustice and CBF Vice President for Litigation Jon Mueller. CBF is participating with a number of other environmental groups, including Sierra Club and the Natural Resources Defense Council, as well as public health organizations like the American Lung Association.
FEDERAL CONSTRUCTION STORMWATER PERMIT
United States Court of Appeals for the District of Columbia Circuit
Chesapeake Bay Foundation, Inc and Potomac Riverkeeper v. United States Environmental Protection Agency
Case No.: 17-1039
The U.S Environmental Protection Agency ("EPA") released a draft stormwater Construction General Permit (‘Permit") in 2015. The Permit covers basic erosion and sediment control runoff from construction sites under the Federal Clean Water Act. The Permit covers the states and tribal jurisdictions that have not been delegated authority to issue such permits. In the Chesapeake Bay watershed, only the District of Columbia is covered under this federal Permit. CBF provided comments on the draft Permit that was issued in 2015 with both American Rivers and the Potomac Riverkeeper joining us. In their comment letter, CBF raised issues related to the relatively small size of the District and the need for the permit to provide standards for the District alone, as well as shortening the standard period for how long soils on construction sites may remain un-stabilized from fourteen days to seven.
After reviewing the comments filed, on January 25, 2017, EPA issued the current Permit which became effective on February 16th. The National Association of Homebuilders ("NAHB") filed a Petition for Review of the Permit in the United States Courts of Appeals for the District of Columbia Circuit. CBF and Potomac Riverkeeper filed a separate Petition for Review on May 25th out of concern that NAHB could further challenge the minimum standards in the Permit. Since the standards in the federal Permit serve as the regulatory "floor" for States that issue their own construction stormwater permits, any weakening of the Permit would harm water quality in the Chesapeake Bay by allowing the discharge of additional sediment into local tributaries.
On May 25th, the Court issued an Order consolidating CBF and NAHB's cases. After months of settlement negotiations, EPA has agreed to reconsider and/or modify the general permit through the federal notice and comment proceedings. The Court ordered EPA to file status reports every 120 days beginning October 11, 2018. CBF will continue to monitor the federal proceedings and file comments on the permit, if necessary.
This case is being handled by CBF Litigation Attorney Paul Smail.
United States District Court for the District of Maryland
Potomac Riverkeeper and Chesapeake Bay Foundation v. Washington Suburban Sanitary Commission
Case No.: 14-CV-00417-TDC
The Potomac Water Filtration Plant, owned and operated by Washington Suburban Sanitary Commission (WSSC), provides the majority of the public drinking water supply in Montgomery County and Prince George's County, Maryland. The facility is located on the south branch of the Potomac River approximately 10 miles northwest of Washington, D.C. and within the Chesapeake Bay watershed. The plant removes water from the Potomac River, filters and disinfects it, transfers the treated water to a drinking water reservoir, and discharges the remaining wastewater back into the Potomac River. WSSC has chronically failed to meet monthly and daily effluent limitations for sediment and aluminum in the wastewater.
On February 12, 2014, CBF and Potomac Riverkeeper filed a lawsuit in the U.S. District Court of Maryland against WSSC for significant and ongoing violations of the Clean Water Act including National Pollutant Discharge Elimination System (NPDES) permit violations. Thereafter, the Maryland Department of the Environment (MDE) filed a Notice of Intent to Sue WSSC. CBF served WSSC with Interrogatories and Request for Production of Documents while settlement negotiations were ongoing and a consent decree was pending.
After over six months of settlement negotiations between CBF, co-plaintiff Environmental Integrity Project, WSSC and MDE, on October 20, 2015, WSSC's board voted unanimously to approve the Consent Decree and significantly reduce the amount of chemicals it releases into the Potomac River from one of its water purification plants. WSSC also agreed to pay a $100,000 state penalty and implement up to $8.5 million worth of short-term pollution control projects at the plant. After receiving comments from the United States Department of Justice pursuant to the Clean Water Act, the United States District Court granted an Order for Entry of the Consent Decree on April 15, 2016. Entry of the Consent Decree by the Court begins the process of planning and implementing Supplemental Environmental Projects CBF and its partner negotiated as a term of the Consent Decree.
The agreement is an important victory for clean water in the Potomac River and the Chesapeake Bay. In addition to the other commitments, WSSC will pay $1 million to for environmental projects that help reduce sediment pollution in the Potomac drainage area. WSSC will have up to ten years to complete the long term improvements to the plant.
CBF's role continues as it evaluates WSSC's progress in fulfilling the terms of the Consent Decree.
This matter is being handled by CBF Litigation Attorneys Paul Smail and Ariel Solaski, along with counsel from the Environmental Integrity Project.
The Sparrows Point steel mill is located on the banks of the Patapsco River in Baltimore, Maryland. The original owner, Bethlehem Steel Corporation (BSC), operated on the roughly 2,300 acre site for more than 80 years, making iron and steel and building ships. Hazardous wastes were deposited on the site and in the adjacent waterways.
In the late 1990s, the U.S. Environmental Protection Agency (EPA) and the Maryland Department of the Environment (MDE) sued BSC for numerous hazardous waste violations. The case was settled in 1997 when the parties signed a consent decree that required BSC and any subsequent owner to correct the violations, perform the necessary studies to fully evaluate the site, and cleanup the pollution both on- and off-site. BSC declared bankruptcy in 2000 and ownership of the property has changed hands several times since. The Russian steel company Severstal took ownership from ArcelorMital in 2008 but sold the site in 2011 – RG Steel (a subsidiary of The Renco Group) took control of the mill at this time. RG Steel went on to file for bankruptcy protection in Delaware federal court a year later.
The Chesapeake Bay Foundation has been directly involved in a number of federal lawsuits and bankruptcy proceedings related to the Sparrows Point facility, including Chesapeake Bay Foundation et al v. RG Steel Sparrows Point, RG Steel Sparrows Point v. EPA and MDE, and RG Steel's filing for bankruptcy in federal court in Delaware.
Cleaning-Up Sparrows Point
It has been nearly two decades since EPA and MDE signed a consent decree with the then owners of the Sparrows Point Steel Mill resolving litigation for numerous federal and state hazardous waste violations. However, other than removal of chromium from groundwater beneath the Rod and Wire Mill, very little clean-up of hazardous waste has occurred since then. In fact, environmental monitoring suggests that hazardous waste continues to leave the site from the Coke Point area, contaminating the adjacent Patapsco River and Bear Creek.
The new owner of the site, Sparrows Point Terminal, LLC, now known as Tradepoint Atlantic (TPA), entered into a settlement agreement with EPA and an administrative consent order with MDE. The agreement with EPA waives claims for contamination found offshore of the plant site which left the site prior to SPT's purchase of the property. In exchange, TPA committed $3 million to investigate and remediate offshore contamination. Under the consent order, TPA has committed $46 million to undertake investigation and remediation work on the former steel mill property.
CBF continues to monitor the progress of the on-site work, the offshore investigation, and the new owner’s voluntary cleanup efforts. When EPA refused to study the toxicity of the sediments offshore from the plant site, we hired an outside consultant to analyze sediment collected from the river bottom for toxicity. Several of those samples were found to be toxic to bottom dwelling organisms and fish. CBF also continues to advocate for the new owners’ compliance with state and federal environmental laws and to ensure it will undertake all necessary on-site work in accordance with the consent decree as well as federal and state law.
CBF and Blue Water Baltimore have filed joint comments on several environmental remediation measures, including the proposed remedy for Tin Mill Canal, which has long been recognized by EPA and MDE for hazardous waste activities. CBF's litigation team continues to press EPA and MDE for adequate groundwater monitoring for the Tin Mill Canal site. We also continue to monitor and comment on authorizations for dredging associated with the redevelopment of the site.
All Sparrows Point matters are being handled by CBF Vice President for Litigation Jon Mueller and Litigation Attorney Paul Smail, along with counsel for Blue Water Baltimore, Inc.
Federal Energy Regulatory Commission
Project No.: P-405-106
Since its construction in 1928, the Conowingo Dam on the Susquehanna River in Maryland has been trapping sediment and phosphorus pollution in the reservoir behind the structure. Today researchers estimate the reservoir is almost completely filled and, as a result, has lost much of its capacity to trap sediment and nutrients. In particular, during big storms when the flow through the dam is high, these sediments are scoured from the reservoir and released into the river below.
In August 2013 CBF intervened in the Federal Energy Regulatory Commission’s (FERC) relicensing proceedings for the dam. Intervention ensures CBF’s voice is heard in the process, and positions CBF for a legal challenge if necessary. CBF has provided comments on FERC’s Draft Environmental Impact Statement (DEIS). FERC issued the Final EIS on March 11, 2015 recommending the relicensing of all three projects (Conowingo, Muddy Run, and York Haven) with certain modifications and additional measures. FERC will decide whether to issue a license after Exelon conducts a sediment study and after the Maryland Department of the Environment ("MDE") issues a Water Quality Certification for the projects under Section 401(a)(1) of the Clean Water Act. On May 17, 2017, Exelon’s submitted their application for a Water Quality Certification. CBF filed comments on the application on August 23, 2017 detailing the impacts of the Dam on Maryland's water quality and the achievement of the water quality standards associated with the Chesapeake Bay TMDL for nutrients and sediments. CBF also presented oral comments during a public hearing held on December 5, 2017 and filed additional comments on January 16, 2018. MDE issued its Certification on April 27, 2018 requiring Exelon to account for and reduce the amount of nitrogen and phosphorus discharged through the dam due to its inability to continue trapping these pollutants.
In response to MDE's Certification, Exelon filed two judicial actions against MDE on May 25th. One action was a Complaint for declaratory and injunctive relief filed in the U.S. District Court for the District of Columbia and a similar action was filed in the Baltimore City Circuit Court. Both Complaints are essentially asking the court to Order MDE to withdraw their Certification as the requirements exceed the State's authority under the CWA and violate the United States Constitution. Exelon also lodged a "Protective Provision and Administrative Appeal" with MDE requesting the Department reconsider and stay its decision.
By filing these judicial actions, Exelon is attempting to avoid the appropriate administrative proceedings and appeals process. CBF has intervened in the judicial actions to ensure the proper and established process for challenging the Certification has been met.
This matter is being handled by CBF Litigation Staff Attorneys Paul Smail and Brittany Wright, CBF senior scientist Beth McGee, and CBF's Maryland Office.
Anne Arundel County Board of Appeals
In the Matter of Snyder Development Corporation and Snyder/Gladstone, LLC.
Case No.: BA 8-16A
Snyder Development Corporation proposed to build a subdivision, known as Turtle Run, directly on the banks of Deep Cove Creek in Churchton, Maryland. The subdivision was to be located entirely within the Critical Area. On March 2, 2016, the Anne Arundel County Office of Planning & Zoning (OPZ) granted a Conditional Sketch Plan approval for the Turtle Run subdivision. The approval allowed the developer to transfer building density between non-contiguous parcels and concentrate 11 homes on a separate 37-acre parcel located entirely within the Resource Conservation Area (RCA). Among other things, this transfer would have allowed the developer to concentrate density in the RCA and habitat protection areas in violation of the density limitations of the Critical Area Law. The OPZ's approval was contrary to the purpose and intent of Critical Area and county law.
On April 1, 2016, CBF filed an appeal of OPZ's Conditional Sketch Plan with the Anne Arundel County Board of Appeals. A similar appeal was filed by SACReD, West/Rhode Riverkeeper and local property owners. Hearings in this case began on September 7, 2016 and continued through March 1, 2018. Initially the hearings before the Board addressed whether CBF, the local property owners and the other local organizations had legal standing to challenge the sketch plan approval (both the County and Snyder Development argued that they did not). After ten hearings, the Board of Appeals granted standing to CBF, SACReD, the West/Rhode Riverkeeper, and some of the community residents, but denied standing to other nearby residents.
On February 7, 2018, the Critical Area Commission, exercising its statutory authority to protect the Critical Area, voted that Anne Arundel County's program lacks standards that meet the Commission's regulations for the consolidation and reconfiguration of lots in the Critical Area. In addition, the Commission made any approvals of lot consolidations or reconfigurations of nonconforming parcels in the Critical Area null and void until the deficiency is corrected.
As a result of the Commission's order, the Board of Appeals dismissed the Sketch Plan appeal. Thereafter, on May 10, 2018, Snyder Development appealed the decision by filing a Petition for Judicial Review with the Anne Arundel County Circuit Court. However, in a win for the Bay, on August 15th, Snyder Development Corporation sold the proposed development areas (a total of 190 acres) of Deep Cove West and Turtle Run to Anne Arundel County for forest preservation, reforestation, and recreation uses. The sale of the property ensures that the subdivision will not be built and important habitat in the critical area will be protected.
CBF will continue to monitor the improvements to the Anne Arundel County's critical area program to ensure the critical area law is enforced.
This case is being handled by CBF Litigation Attorneys Ariel Solaski, Paul Smail, and Jon Mueller.
Maryland Court of Special Appeals
Vieglais v. Dep't of Natural Resources
Case No.: CSA-REG-0080-2017
The owners of Beehive Beach Farm, which consists of approximately 28.09 acres of land and is located on Sahlin Farm Road in Annapolis, Maryland, sought a variance to construct a home near steep slopes descending to Hopkins Creek on the Severn River. The Administrative Hearing Officer (“AHO”) denied the variance after a hearing on December 2, 2014 stating that the conditions for granting a variance were not met.
Prior to the AHO decision, the Maryland Department of Natural Resources (“DNR”) disapproved the proposed development of the property, asserting that it violated the terms of the Forest Conservation Easement (“FCE”). The purpose of the FCE is to restrict and limit the use of land and contiguous waters to preserve the state's forests and protect the Chesapeake Bay Critical Area shoreline and aquatic habitat. The FCE prohibits construction of new structures within the Critical Area Buffer. Approximately 19.07 acres of the Vieglais property is located in the critical area and is classified Resource Conservation Area ("RCA").
As a result, the property owners filed a lawsuit against DNR in the Circuit Court for Anne Arundel County on July 31, 2015 alleging breach of contract and requesting injunctive and declaratory relief pertaining to the provisions of the FCE. They claim DNR violated the terms of the FCE, by not allowing them to construct a new dwelling on their waterfront property at the location they desired. They also appealed the AHO decision. However, the administrative appeal was stayed pending the outcome of the suit against DNR.
Conservation easements serve a critical role in preserving riparian forests and other sensitive lands from development in the Chesapeake Bay watershed. CBF filed a Motion to Intervene in the Circuit Court action on December 11, 2015, as an interested person on the side of DNR to ensure enforcement and interpretation of the FCE and on March 15th CBF's Motion to Intervene was granted. After Discovery was completed, DNR, CBF and fellow co-intervenors (James and Sylvia Earl, Sherwood Forest Company and Sherwood Forest Club, Inc.) filed Motions for Summary Judgement asserting that Defendants are entitled to Judgment in their favor as a matter of law. Plaintiffs also filed a Motion for Summary Judgement. A Complex Motions Hearing was held on December 19, 2016 and on January 26th, Judge Goetzke Ordered summary judgment as to liability and damages in favor of DNR and the Intervenors against the Plaintiffs under Count 1 of the Complaint (Breach of Contract). However, the Judge denied judgment under Counts II through V (Declaratory Relief). Plaintiff's Motion for Summary Judgment was also denied. Trial was held the week of February 6, 2017. At the conclusion of trial, Judgment was granted in favor of DNR and the Intervenor Defendants.
On March 30, 2017, Plaintiff's noted an Appeal to the Maryland Court of Special Appeals based on the following Issues:
- Whether the Circuit Court erred in granting Motion to Intervene as to James and Sylvia Earl, The Sherwood Forest Club and Chesapeake Bay Foundation.
- Whether the Circuit Court erred in granting Summary Judgment as to liability and damages in favor of the Defendant and Intervening Defendants.
- Whether the Circuit Court erred in granting Motion for Judgment in favor of Defendants and Intervening Defendants.
- Whether the Circuit Court erred in its Declaratory Judgment in favor of Defendants and Intervening Defendants.
Briefing on the issues is complete and Oral Arguments were held on April 4, 2018 in front of a three-judge panel in the Maryland Court of Special Appeals located in Annapolis, Maryland. A decision has not been issued by the Court to date.
This case is being handled by CBF Litigation Attorney Paul Smail.
DOMINION ATLANTIC COAST PIPELINE
U.S. Court of Appeals for the Fourth Circuit
Chesapeake Bay Foundation, et al. v. State Water Control Board, et. al.
Case No.: 18-1077
The Atlantic Coast Pipeline ("ACP") is an expansive operation spanning the distance of more than 600 miles from the Allegheny Mountains through North Carolina, including streams, rivers and wetlands in the Chesapeake Bay watershed throughout Virginia. More than twenty-one miles of line will cross national forest lands in Virginia and West Virginia. In addition, the proposed pipeline will create additional sediment and nutrients resulting in an unprecedent risk to these waterbodies, as well as wetlands and forests in the Chesapeake Bay watershed. Forests are vital to the health of the Bay as they prevent pollution from entering waterways, protect clean air, and provide habitat to wildlife throughout the region. Thousands of acres of forests will be destroyed to construct the pipeline.
The Virginia Department of Environmental Quality is responsible for ensuring that the proposed project complies with all state water quality standards, including obtaining a section 401 water quality certification as defined in Section 401 of the Clean Water Act, 33 U.S.C. § 1341(a). Section 401 certification process requires states to assess whether a federal-permitted project, that discharges into the states navigable water, violates the state's water quality standards.
The Commonwealth of Virginia's Department of Environmental Quality ("DEQ") and the Virginia State Water Control Board issued the 401 Water Quality Certification to ACP on December 20, 2017. CBF along with local co-plaintiffs filed a Petition for Review of this decision with the United States Court of Appeals for the Fourth Circuit located in Richmond, VA on January 19, 2018. CBF and our co-plaintiffs allege that DEQ and the Water Control Board lacked sufficient information to find "reasonable assurance" that the proposed ACP would not violate state water quality standards, as required by Section 401 of the Clean Water Act. In addition, the certification was issued without providing adequate public notice and comment opportunities throughout the certification process.
CBF's case was consolidated with an appeal filed by Southern Environmental Law Center ("SELC") representing several organizations, including Appalachian Voices, Sierra Club, and Chesapeake Climate Action Network. Briefing in this case has concluded and Oral Arguments have been scheduled for September 28, 2018.
In the meantime, Petitioners filed a Motion for Stay of the effectiveness of the 401 Certification for the Pipeline based on recent findings by the Virginia State Water Control Board questioning whether the construction of the pipeline would not violate Virginia water quality standards after the Board opened a public comment period on the adequacy of a federal Nationwide 12 permit to protect Virginia's waterways from harm caused by the construction of the ACP. The Motion to Stay was denied by the 4th Circuit on August 7, 2018.
MORE INFORMATION ABOUT THE ATLANTIC COAST PIPELINE
BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION
In the Matter of Atlantic Coast Pipeline, LLC
Docket Nos CP15-554-000, et. al.
In October 2014, Atlantic and Dominion were granted approval for pre-filing review of the proposed Atlantic Coast Pipeline project by the Federal Energy Regulatory Commission ("FERC"). FERC reviews applications for construction and operation of interstate natural gas pipelines under Section 7 of the Natural Gas Act. In February 2015, FERC published a Notice of Intent to prepare an Environmental Impact Statement (EIS) and requested public comments. CBF along with other organizations filed comments and motions to intervene to protest the proposed pipeline project. In September 2015, Atlantic and Dominion filed applications with FERC for certificates of public convenience and necessity. This certificate is required for the construction or expansion of natural gas facilities used for the sale or transportation of natural gas and must be issued by FERC, along with an environmental impact statement.
Despite the significant environmental impacts associated with the proposed pipeline, the Commission issued the final EIS on July 21, 2017 and granted the certificate of public convenience and necessity on October 13, 2017 without considering relevant evidence in the record.
On November 13, 2017 SELC, on behalf of CBF and other organizations, filed a request for a rehearing and Stay of the Certificate Order with FERC requesting that the Certificate Order and final EIS be withdrawn and the environmental analysis and public convenience and necessity analysis be redone in compliance with 42 U.S.C. § 4321 of the National Environmental Policy Act ("NEPA") and 15 U.S.C. § 717 of the Natural Gas Act ("NGA"). However, rather than ruling on Petitioners' rehearing request, FERC indefinitely postponed a ruling without issuing a stay while construction of the pipeline has begun. As a result, on March 9, 2018 SELC, on behalf of several organizations, filed a Petition for a Writ Staying the FERC Order with the United States Court of Appeals for the Fourth Circuit asking the Court to stay construction of the Atlantic Coast Pipeline until FERC issues a final Order on the rehearing request filed on November 13th. On March 21, 2018, the 4th Circuit Denied SELC's Petition.
On August 10, 2018, FERC denied the rehearing request filed by SELC and the other citizen groups. As a result, SELC filed a Petition for Review of this decision with the U.S. Court of Appeals for the 4th Circuit on behalf of CBF and the other citizen groups. This case is docketed under case number: 18-1956.
In addition, On January 19, 2018, FERC issued a limited notice to ACP requiring that all tree cutting activities in Virginia cease on March 15, 2018 and not resume until August 31, 2018 to minimize impacts on both migratory bird species and threatened and endangered species. On March 15, 2018, Atlantic and Dominion requested to modify certain time-of-year restrictions for tree felling and asked FERC to allow vast areas of forest destruction to continue until May 15, 2018. CBF filed comments with FERC opposing the extension request. On March 28th, FERC denied ACP's request and tree cutting in Virginia cannot resume until August 31, 2018.
This case is being handled by Vice President for Litigation Jon Mueller, litigation staff attorney Ariel Solaski, and staff counsel in the Virginia office.
United States District Court For the Western District of Virginia
Norfolk Southern Railway Company v. City of Roanoke
Case No.: 7:16-v-cv-00176
The Commonwealth of Virginia instituted a program allowing localities the ability to assess fees from landowners, including corporate and individual citizens, to address stormwater carrying pollution that runs into local streams and rivers. As a result, The City of Roanoke established an Ordinance which generates revenue for stormwater management activities. The Ordinance institutes a fee assessment structure based upon the amount of impervious surface identified on improved parcels of land.
Norfolk Southern Railway Company (NSR) filed suit in the U.S. District Court for the Western District of Virginia, on April 12, 2016, seeking a partial exemption from the City's fee assessment. NSR claims the fees are unlawful under the Federal Railroad Revitalization Reform Act of 1976 because railroad tracks are not exempted from the City's Ordinance, but lawns are exempted. NSR also claims that the Ordinance violates the anti-discrimination provisions of the Federal Railroad Reform Act. The City of Roanoke filed a Motion to Dismiss the lawsuit on June 6th.
CBF filed a Motion For Leave to Intervene on July 8th as NSR's suit attacking the fee assessment threatens to challenge an important program by Virginia to fund stormwater management locally and reduce pollutants to the Chesapeake Bay.
A Hearing on CBF's Motion to Intervene was held on September 14, 2016 and on October 19th, the Court Granted CBF's Motion to Intervene under Federal Rules of Civil Procedure 24(b) allowing permissive intervention. As a result, CBF is now an intervenor-defendant in this case supporting the City of Roanoke and the fee assessment.
The Court also heard the City of Roanoke's Motion to Dismiss on September 14th. CBF provided arguments supporting the City's motion. After hearing arguments on both sides, on October 6th, the Court issued an opinion Denying Without Prejudice the Motion to Dismiss filed by the City. However, the Court narrowed the issues to whether the City's stormwater utility fee is a "tax" for purposes of the NSR, and not a fee. In addition, the Court allowed limited discovery on this single issue. The Discovery period closed on March 6, 2017. All parties filed cross motions for summary judgment on April 3rd. The City of Roanoke also renewed its Motion to Dismiss and a Motions Hearing was held on May 15, 2017. During the hearing, the Court instructed the City of Roanoke and CBF to respond to a newly minted argument presented by NSR related to the City's stormwater management system. Briefing on this issue was completed on June 15, 2017. On December 26, 2017 the Honorable Judge Conrad with the U.S District Court Granted the City of Roanoke and Chesapeake Bay Foundation's Motion for Summary Judgment ruling that the utility charge at issue in this case is a fee, rather than a tax. This is an important victory for the Chesapeake Bay as the City's program is designed to ensure proper management of urban stormwater.
On January 11, 2018, Norfolk Southern filed an appeal with the United States Court of Appeals for the Fourth Circuit located in Richmond, Virginia. A mediation conference was held on February 13th without a resulting settlement. Hence, the parties have continued to litigate the case. Oral Arguments have been scheduled for November 1, 2018.
This case is being handled by CBF's Vice President for Litigation, Jon Mueller, litigation staff attorney Brittany Wright, and staff counsel in the Virginia Office.