Environmental Law Projects
I. National Environmental Policy Act
A. Public Employees for Environmental Responsibility et al v. Bromwich et al
In late spring 2011, IPR began representing the Wampanoag Tribe of Gay Head (Aquinnah) in its opposition to the Cape Wind Energy Project, a proposed offshore wind farm to be located 3.5 miles off the coast of Massachusetts. The Department of the Interior approved the construction and operation of the 130-turbine generator wind farm in a 25-square mile area of Nantucket Sound, known as Horseshoe Shoal, in April 2011.
The Tribe’s reservation is located on the western side of Martha’s Vineyard Island, and the Tribe has used Horseshoe Shoal for food, religion, and livelihood since “time immemorial.” Construction of the project will irreparably disturb the seabed, which holds cultural and archaeological significance to the Tribe and was recently determined to be eligible for inclusion in the National Register of Historic Places. In addition, operation of the wind farm will disrupt the Tribe’s spiritual ceremonies by obstructing the viewshed of the Eastern horizon and will interfere with the Tribe’s practice of subsistence fishing in the area.
In July, 2011, the Tribe filed a complaint in the U.S. District Court for the District of Columbia against the Department of the Interior and the Bureau of Ocean Energy, Management, and Regulation (formerly known as the Minerals Management Service), alleging that the agencies did not adequately consider the project’s impacts on the Tribe, in violation of the National Environmental Policy Act and the National Historic Preservation Act. In November 2011, one IPR fellow and two IPR students travelled to Boston to give a presentation on the case to Boston University law students and to meet with Tribal representatives on Martha’s Vineyard.
Following Summary Judgment briefing, the District Court for the District of Columbia ruled that the government had violated the Endangered Species Act by failing to adequately consider mitigation measures to protect migrating birds, and by failing to issue an incidental take statement for right whales in the area. The Court ruled against the Tribe, however, holding that the Bureau of Ocean Energy, Management, and Regulation fulfilled all of its procedural requirements under the National Historic Preservation Act and National Environmental Policy Act. The Tribe has decided not to appeal the decision.
II. Endangered Species Act
A. WildEarth Guardians v. United States Department of Agriculture
In this Ninth Circuit National Environmental Policy Act case, IPR filed an amicus curiae brief on behalf of a group of environmental law professors, urging the Ninth Circuit to reverse a District Court ruling that would shut the courthouse doors to environmental activists. IPR filed the brief in October 2013, in support of WildEarth Guardians. That group had challenged the Department of Agriculture’s compliance with the National Environmental Policy Act (NEPA) when it reauthorized a Nevada wildlife extermination program under which federal employees trap, shoot and poison coyotes, wolves, ravens, and other animals. Rather than consider new research on predator ecology and the dangers associated with the agency’s avicides, federal officials had sought to justify the status quo by referencing an environmental analysis last updated in 1997.
The District Court for the District of Nevada dismissed the lawsuit on standing grounds. WildEarth Guardians had submitted affidavits from its members who enjoy viewing the species targeted by the extermination program. However, according to the court, because Nevada state wildlife officials had pledged to take over the extermination program if the federal agency discontinued it, the court could not offer any relief that would redress the plaintiff’s injuries.
IPR’s amicus brief emphasizes the special nature of procedural injuries, particularly those arising under NEPA. It argues that the lower court’s rule ignores the information disclosure purpose of NEPA, and invites courts to engage in unhelpful speculation. It also launches a frontal assault on Goat Ranchers of Oregon v. Williams, 379 Fed. App’x 662 (9th Cir. 2010), an unpublished Ninth Circuit opinion heavily relied on by the District Court. A ruling on the appeal is pending.
III. Highway Beautification Act
A. Scenic America v. United States Department of Transportation
IPR represents Scenic America, Inc. in a challenge to the Federal Highway Authority’s (FHWA’s) authorization of digital billboards along federally regulated highways. In 2008, IPR submitted a petition for rulemaking on Scenic America’s behalf, asking the federal agency to declare a moratorium on construction of digital billboards, which are bright LED displays with advertisements that change approximately every six seconds. FHWA declined to impose a moratorium, and in Fall 2012, Scenic America asked IPR to explore other legal options.
IPR reassessed its earlier legal analysis and identified a viable litigation strategy. In November 2012, one of IPR’s students gave a presentation outlining this strategy to the Scenic America Board of Directors, who voted to authorize a lawsuit. In January of 2013, Scenic America filed a complaint in the U.S. District Court for the District of Columbia against FHWA and the U.S. Department of Transportation.
Scenic America’s suit challenges the validity of a guidance memo issued by FHWA in September 2007, which directs agency personnel not to apply certain regulations–those prohibiting signs with “flashing,” “moving,” or “intermittent” lights—to digital billboards. The practical effect of the guidance memo was to eliminate federal oversight of the placement of digital billboards near federally funded highways. Scenic America’s complaint alleges that FHWA violated the Administrative Procedure Act (APA) and the Highway Beautification Act (HBA) by issuing a rule change without notice and comment, and by adopting a rule that is inconsistent with the HBA’s substantive requirements.
During Spring 2013, an IPR student interviewed Scenic America members and prepared affidavits in anticipation of the government and industry intervenor’s motion to dismiss on standing grounds. Scenic America members described injuries, including the aesthetic impacts of a digital billboard in close proximity to the home, reduced highway safety, and the drain on Scenic America’s resources, resulting from FHWA’s authorization. In May of 2013, the government and industry defendants filed their motions to dismiss, which Scenic America opposed. The Court agreed with Scenic America that the group had standing to challenge FHWA’s Guidance Memorandum, which was a final agency action.
During Spring 2014, IPR filed motions to supplement the administrative record submitted by FHWA, as well as summary judgment briefing on the merits. The Court upheld the motion to supplement the record, but ruled against Scenic America on summary judgment, reasoning that FHWA reasonably interpreted the term “intermittent lighting” to exclude LED digital billboard technology that cycles through thousands of advertising messages per day. In August of 2014, IPR filed a notice of appeal with the D.C. Circuit Court of Appeals.
IV. Surface Mining Control and Reclamation Act
A. Coal Riving Mountain Watch v. United States Department of Interior
IPR represents Coal River Mountain Watch (“Coal River”), in litigation challenging the Office of Surface Mining Reclamation and Enforcement’s (OSM’s) approval of a West Virginia policy that unlawfully extends permits for several hundred proposed coal mining operations beyond their termination date. The Surface Mining Control and Reclamation Act states that a permit “shall terminate,” if a permittee does not begin mining operations within three years of a permit’s issuance. In West Virginia, however, state regulatory officials have enacted a policy that requires the state to give a mine owner notification before its permit expires and allows the state to grant extensions for mining permits after the three-year expiration date.
In 2012, IPR’s client Coal River contacted West Virginia officials to ask them to terminate Marfork Coal Company’s Eagle No. 2 mining permit because the company had failed to initiate permitted activities within three years of its permit issuance. West Virginia officials instead granted the Company a “retroactive extension” of its permit. Coal River filed a petition challenging the extension with OSM’s Charleston field office. The field office ruled that West Virginia had violated the Surface Mining Control and Reclamation Act. However, West Virginia appealed the field office decision, and OSM’s national headquarters overturned it, reasoning that “shall” means “may” in certain contexts.
In Fall 2013, after IPR students developed alternative jurisdictional theories of the case, IPR filed suit on behalf of Coal River in the United States District Court for the District of Columbia (“DDC”) and in the United States District Court for the Southern District of West Virginia (“SDWV”). IPR’s complaints allege that OSM’s approval of the West Virginia permit extension policy was arbitrary and capricious, and that the approval unlawfully bypassed notice and comment rulemaking procedures. During Spring 2014, IPR agreed to stay its West Virginia litigation and responded to a motion to dismiss its complaint in the District of Columbia on venue grounds. A decision on that briefing is pending.
V. Land and Water Conservation Fund Act
A. Friends of DeReef Park v. National Park Service
IPR represents Friends of DeReef Park in an action challenging the conversion of a neighborhood park, created with federal funding, into a site for a luxury residential development. DeReef Park is located in Charleston, South Carolina. In 1980, state and municipal authorities agreed to maintain the site in perpetuity for recreational purposes, in exchange for federal funding under the Land and Water Conservation Fund Act (LWCFA). That law enabled the City to acquire the property for the site and to develop it as a neighborhood park, but it prohibits the conversion of the site to non-recreational use without the approval of federal officials.
Nevertheless, in 2003, the City of Charleston sold DeReef Park to private developers. Five years later, city and state officials sought federal approval of the conversion, arguing that they were contractually obligated to allow the developers to build on the park site and, therefore, the NPS had no alternative but to transfer the covenants on the park property to another park, in a different part of the city. Regulations under the LWCFA and the National Environmental Policy Act (NEPA) require federal officials to conduct an environmental assessment and ensure that city and state officials have provided for public notice and participation prior to approving a park’s conversion. Neither city nor state officials, however, notified residents that DeReef Park was protected under federal law, and the National Park Service issued its decision to approve the conversion of the park without the benefit of an environmental assessment. Five years later, private development plans for the park began to move forward, and a local resident then discovered that the park was protected.
In Fall 2013, IPR filed suit against the National Park Service and the South Carolina Department of Parks, Recreation and Tourism in the District Court for the District of South Carolina, alleging violations of the LWCFA, NEPA, and the National Historic Preservation Act. The City of Charleston intervened as a defendant in the case. An IPR student interviewed the leadership of Friends of DeReef Park and prepared a declaration in support of standing.Following a failed settlement negotiation, IPR filed its opening summary judgment brief and standing declaration. The National Park Service filed a motion for voluntary remand, conceding that the agency had not followed required procedures prior to approving the conversion. The City of Charleston has asked the court to grant remand, but leave the conversion approval in place, so that private developers can continue construction activities. IPR has opposed that request. The court’s decision is pending.
VI. Clean Air Act
A. EPA v. EME Homer City Generation, L.P.
In September 2013, IPR filed an amicus curiae brief in support of EPA in a case before the Supreme Court on behalf of the American Thoracic Society, an international educational and scientific organization that works to prevent and fight respiratory disease around the world through research, education, patient care, and advocacy. The case addressed whether EPA’s Cross State Air Pollution Rule (“CSAPR”) was a permissible interpretation of the Clean Air Act, which requires that states prevent emissions originating within their borders from significantly contributing to downwind states’ noncompliance with Clean Air Act pollution thresholds. The D.C. Circuit had vacated the Rule for exceeding EPA’s statutory authority under the Clean Air Act.
IPR’s brief highlights air pollution’s serious public health impacts and the significant harm the D.C. Circuit’s decision would cause to the public. It also addressed two of the arguments for upholding the decision, namely that air pollution is actually decreasing, and that CSAPR was not necessary to achieve compliance in downwind states. Air pollution, IPR’s brief explained, continues to threaten public health, and existing regulations were not a viable means of protection.
In April 2014, the Court issued its opinion and ordered CSAPR upheld, reversing the D.C. Circuit’s decision.
B. Utility Air Regulatory Group v. EPA
In January 2014, IPR filed another amicus curiae brief on behalf of the American Thoracic Society, once again in support of EPA in a case before the Supreme Court. This case considered EPA’s Timing and Tailoring Rules, which provide for the regulation of greenhouse gas (“GHG”) emissions from stationary sources under the Clean Air Act’s Prevention of Significant Deterioration (“PSD”) program. The D.C. Circuit had upheld EPA’s rules after hearing various challenges to their validity under the Clean Air Act;the Supreme Court granted certiorari from that decision on a narrow question: Did EPA permissibly determine that its regulation of GHG emissions from new motor vehicles triggered permitting requirements under the CAA for stationary sources that emit GHGs?
IPR’s brief focuses on the impacts of GHG emissions and global climate change on human health, highlighting the scientific community’s consensus that mortality will increase due to the effects of anthropomorphic climate change, and noting that regulating GHG emissions from stationary sources would yield the co-benefit of reducing emissions of other air pollutants. IPR’s brief also pointed out that adopting petitioners’ proposals would curtail EPA’s authority to regulate all non-criteria pollutants—not just GHGs.
In June 2014, the Court issued an opinion that charted a middle path between EPA’s request that the Rules be upheld in full and challengers’ argument that those Rules should be vacated. The Court’s decision leaves EPA’s Rules intact in terms of their effect—it is expected that they will address sources of 83% instead of 86% of the GHG emissions from facilities subject to the Clean Air Act’s PSD program. However, the decision also approaches GHG emissions as a category of air pollutant distinguishable from pollutants traditionally regulated under the CAA—an approach that is sure to have implications for future rules regulating GHG emissions based on the CAA.
VII. Clean Water Act
A. American Farm Bureau Federation v. EPA
In May 2014, IPR filed an amicus curiae brief in a case before the Third Circuit on behalf of a coalition of non-profit advocacy organizations in support of EPA, which had issued a regulation limiting the total maximum daily load (“TMDL”) of several pollutants found to be damaging to the Chesapeake Bay. Those pollutants flow chiefly from nonpoint sources, such as agricultural fields and construction sites. EPA had formulated the TMDL in collaboration with the District of Columbia and the six states that comprise the Chesapeake watershed—Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia. The American Farm Bureau Federation, the National Association of Home Builders, and others challenged the TMDL in federal district court, arguing that it impermissibly interfered with state and local land use decisions, and thereby exceeded the authority granted to EPA by the Clean Water Act. After their challenge was rejected by the court, the Farm Bureau appealed. Twenty-one states attorneys general filed an amicus brief in support of that appeal. Their brief recapitulated the federalism arguments made by the Farm Bureau, and also asserted that EPA’s oversight of nonpoint source pollution in the Chesapeake and elsewhere was unwarranted because states are competent to address it as needed.
The coalition represented by IPR included the National Parks Conservation Association, the Alliance for the Great Lakes, the Environmental Law and Policy Center and over 20 waterkeepers and other water quality advocacy organizations, hailing from each of the 21 states whose attorneys general filed in support of the Farm Bureau’s opposition to the TMDL. Two students and a fellow contributed to the drafting of IPR’s brief, which takes note of water quality degradation in several of those states owing to pollution from nonpoint sources. The brief also pointed out states’ frequent inability or unwillingness to address such pollution, whether it originated within or beyond a particular state’s borders. Finally, the brief argued that the Clean Water Act provided clear statutory authority for the TMDL, particularly in light of the long history of cooperation among states and EPA toward understanding and ameliorating Chesapeake Bay water quality degradation.
The Third Circuit’s decision in the case is pending.
VIII. Surface Mining Reclamation and Control Act
A. To’ Nizhoni Ani et al. v. Office of Surface Mining and Reclamation Enforcement
IPR represents a coalition of non-profit organizations in an administrative appeal of a coal mine permit renewal. The coalition includes To’ Nizhoni Ani, Diné Citizens Against Ruining Our Environment, Black Mesa Water Coalition, Sierra Club, and the Center for Biological Diversity (collectively, “To’ Nizhoni Ani”).
The Peabody Western Coal Company (“PWCC”) has been mining at the Kayenta mine, on Black Mesa in northeastern Arizona, since the 1960s. In 1990, the company received a life-of-mine permit under the Surface Mining Control and Reclamation Act (“SMCRA”) from Office of Surface Mining Reclamation and Enforcement (“OSM”).SMCRAestablishes environmental standards for strip mining and requires that permittees seek a permit renewal every five years.
In 2010, the PWCC sought to renew its permit for the fourth time. OSM renewed the permit on January 6, 2012. To’ Nizhoni Ani filed an administrative appeal of the renewal on February 17, 2012. The appeal raised claims under SMCRA, the National Historic Preservation Act, the National Environmental Policy Act, and the Administrative Procedure Act. PWCC and To’ Nizhoni Ani filed cross motions for summary judgment. The Administrative Law Judge issued an order denying both motions with respect to all claims and dismissing a National Environmental Policy Act claim on which no party had sought judgment.
The parties engaged in settlement negotiations from February 2013 to March 2014. An IPR staff attorney traveled to Phoenix in March 2013 for mediation with all of the parties, and an IPR staff attorney and student traveled to Denver in April for a follow-up meeting with OSM. The parties executed a settlement agreement in May 2014 and IPR filed a petition to recover its costs in the case, which OSM opposed. A ruling on the costs award is pending.
IIX. Food Safety Modernization Act
A. Produce Safety Rule and Preventive Controls Rule
The Food Safety Modernization Act (“FSMA”) was passed in January 2011. The statute amends the Food, Drug, and Cosmetic Act by increasing the FDA’s regulatory authority over food production. Specifically, FSMA directs the FDA to promulgate science-based preventive controls governing farm produce safety and off-farm packing, manufacturing, and processing. In January 2013, the U.S. Food and Drug Administration (“FDA”) published draft “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption” (the proposed produce safety rule) and “Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food” (the proposed preventive controls rule) pursuant to the Food Safety Modernization Act (“FSMA”). After publication of these rules, IPR reached out to Future Harvest—A Chesapeake Legal Alliance (“Future Harvest CASA”), a network of farmers, agricultural professionals, landowners, and consumers living and working in the Chesapeake Bay region.
In November of 2013, on behalf of Future Harvest CASA, IPR filed comments on both rules, focusing on their environmental and economic effects. In the course of drafting, IPR students collaborated with Harvard’s Food Law and Policy Clinic and with the National Sustainable Agriculture Coalition, of which Future Harvest CASA is a member. In response to the comments filed, including IPR’s FDA indicated that it would substantially revise its preliminary draft rules.
IX. DC FOIA
A. McMillan Park Committee v. District of Columbia
In spring 2009, IPR began assisting the McMillan Park Committee (MPC) with its efforts to protect the historic resources and open green space of McMillan Park. The District of Columbia plans to transfer the McMillan Park historic sand filtration site to a private developer, who proposes to remove most of the historic structures and construct apartments, condominiums, and retail facilities. Many community members and groups in addition to MPC are concerned about the intensity of the proposed development, lack of usable public space, and failure to incorporate the park’s unique historic resources.
In February 2009, IPR submitted District of Columbia Freedom of Information Act (“D.C. FOIA”) requests on behalf of MPC to gather information about the new redevelopment proposal and its environmental and historic resource impacts. IPR also sent a letter to the mayor of D.C., urging him to conduct an environmental analysis before transferring the property to the developer. With the exception of the Deputy Mayor’s Office, IPR received adequate responses to its D.C. FOIA requests. The Deputy Mayor’s Office refused to disclose an indefinite number of emails between it and Vision McMillan Partners, the private developer for McMillan Park.
In March 2010, MPC filed a complaint for declaratory and injunctive relief in D.C. Superior Court. MPC then filed a Motion for Summary Judgment arguing that the District’s Vaughn index was inadequate and that the District had failed to justify withholding responsive records. In March 2011, the court held that the District had failed to provide sufficient information to justify non-disclosure of the withheld records and issued an order holding in abeyance MPC’s Motion for Summary Judgment pending the District’s issuance of a revised Vaughn index that further describes the withheld documents and specifically addresses the ability to segregate the withheld information. The District filed a revised Vaughn Index and two new supporting affidavits in September 2011. The District also filed all the contested documents, suggesting the court might review them in camera. In August 2012, after undertaking in camera review of the documents, the court again concluded that the District’s justification for withholding the documents was inadequate and ordered the District to revise its Vaughn index again. In December 2012, the District filed a revised Vaughn index, and MPC renewed its arguments in favor of summary judgment. In August of 2013, the court granted MPC’s motion for summary judgment and ordered the District to release dozens of contested documents. After prevailing in the case, IPR settled with the District for recovery of over $50,000 in attorneys’ fees.
During the course of this litigation, development activities at McMillan Park have continued, and community members have continued to voice opposition to Vision McMillan Partners’ development plan. In March of 2013, on behalf of the McMillan Park Committee, an IPR student gave testimony before the D.C. Historic Preservation Review Board, arguing that the revised plan is inconsistent with the District’s historic preservation laws. In the spring of 2013, IPR also represented the MPC in talks with DC Water to secure a commitment regarding restoration and mitigation measures associated with that agency’s use of water filtration cells for emergency storm water storage.
X. Federal Clean Water Act Compliance
A. Virginia General Permit for Construction-Related Stormwater Discharge.
IPR began its representation of the Potomac and Shenandoah Riverkeepers in September 2013, when the Riverkeepers sought IPR’s help with their effort to persuade Virginia to revise its requirements for developers responsible for pollution flowing from construction sites. The Riverkeepers’ work to protect the Potomac and Shenandoah watersheds focuses on maintain water quality and habitats for aquatic and other wildlife.
Pursuant to the state’s authority under the Clean Water Act, Virginia’s State Water Control Board (“SWCB”) reissues a “general permit” every five years for various designated polluting activities, such as construction. To operate—and pollute—legally, a person or entity whose activities qualify under a general permit must register with Virginia’s Department of Environmental Quality (“DEQ”) and agree to abide by the conditions specified in the general permit.Starting in 2013, the SWCB held hearings and invited public comments on a proposed reissuance of Virginia’s Construction General Permit.
In November 2013, on behalf of the Potomac and Shenandoah Riverkeepers, IPR filed comments with the SWCB to suggest changes to the proposed Construction General Permit. In particular, the comments encouraged the SWCB to revise the permit to provide for greater public notice regarding construction plans and greater public access to site owners’ plans for mitigating pollution from those sites.
The SWCB did not take up the suggested changes in the final version of the Permit, and in in February 2014, IPR filed suit on behalf of the Riverkeepers in the Virginia Circuit Court for the City of Richmond, challenge the Permit for violating public participation and other requirements of the federal Clean Water Act.. DEQ, represented by Virginia’s Attorney General, responded by filing procedural objections, which allege that the suit was not timely filed and served. IPR has filed responses on behalf of the Riverkeepers to contest these objections. A decision on these motions is pending.