A backyard seat: OSHA, Air and Waters | Pillsbury – Gravel2Gavel Construction and Real Estate Law

The courts have rendered several new and important decisions on environmental and administrative law in recent weeks.

UNITED STATES COURT OF APPEAL FOR THE DISTRICT OF COLUMBIA CIRCUIT

Truck Trailer Manufacturers Association, Inc. v. EPA
On November 12, 2021, the DC Circuit ruled in a split decision that neither Section 202 (a) (1) of the Clean Air Act nor the Energy Independence and Security Act of 2017 authorizes these agencies to regulate emissions. greenhouse gases emitted by trailers. pulled by tractors — most often the 18-wheeler that carries many products to market on the country’s highways. According to the court, the trailers do not have an engine and therefore cannot be subject to the greenhouse emissions and energy efficiency standards promulgated in 2016. (See 81 FR 73478.) The majority, after a review stringent of these laws, determined that the Clean Air Law did not allow this part of the EPA rule as it applies to heavy-duty trailers, and since the Energy Independence Act focuses on fuel economy and as trailers do not use fuel, the NHTSA also did not have the authority to employ. Justice Millett agreed with the majority on the EPA rules, but would find that NHTSA’s inclusion of commercial trailers in its fuel efficiency rule was a reasonable interpretative judgment that “falls squarely within its statutory delegation ”.

UNITED STATES COURT OF APPEAL FOR THE FIFTH CIRCUIT

BST Holdings, et al. against OSHA
On November 12, 2021, the court reiterated its recent ruling that OSHA’s new temporary emergency standard COVID-19 affecting employers with 100 or more employees must be put on hold pending judicial review. As a result of its review and consideration of the new briefing it received, the tribunal again highlighted what it considered “serious statutory and constitutional issues” with OSHA’s new mandate, which was published in 86 FR 61402. prejudice of any kind whatsoever, ”the court concluded, while companies seeking a suspension“ will suffer irreparable damage ”. In a footnote, the court observed that “the Mandate affects every person in America in one way or another.” Usually, a trial on the merits would follow soon.

UNITED STATES COURT OF APPEAL FOR THE NINTH CIRCUIT

Inland Waterkeeper v. Corona Clay Company
On September 20, 2021, the court ruled that environmental plaintiffs had standing to pursue this citizen lawsuit under the Clean Water Act, which alleged that the defendant was illegally discharging pollutants into a navigable body of water in violation of its law. State of California General Stormwater Discharge Permit. . The basis of this complaint was the defendant’s alleged failure to monitor its stormwater discharges and report violations of its permits. The case was tried by a jury, which ruled for the defendant on certain issues, including whether there was indeed a jurisdictional discharge in the navigable waters. The Ninth Circuit held that the lower court erred in holding that in its interpretation of the Supreme Court’s decision in Gwaltney v. United States, a continuous discharge was a prerequisite for maintaining a citizen prosecution arguing for continuous monitoring and reporting of violations. Nonetheless, whether there was indeed a discharge of jurisdiction in light of the Supreme Court’s decision in the 2020 County of Maui case is a question to be decided by the trial court while in custody. provisional.

California River Watch v. City of Vacaville
On September 27, 2021, the Ninth Circuit rendered a decision in this RCRA lawsuit, the plaintiffs arguing that the City of Vacaville, by transporting a solid hazardous waste, hexavalent chromium, to its residents as part of its municipal service of water, was nonetheless in violation of RCRA section 6972 (a). Although the city has nothing to do with the actual production of hexavalent chromium, a chemical used and released into groundwater by wood processing facilities located near Elmira, Calif., A “transporter” of solid waste can still be held liable under RCRA. The court also ruled that the discarded hexavalent chromium was solid waste subject to RCRA; here, it is alleged that wood treatment plants released this chemical into groundwater, which was the primary source of water supplied to residents of Vacaville, triggering the application of RCRA. Oddly, the EPA agreed that the operation of the municipal water plant was otherwise in compliance with applicable state and federal drinking water law standards. There was dissent, with the dissenting judge stating that the City had to have played an active role in the creation of this waste before it could be held responsible.

Upper Missouri Waterkeeper v. EPA
On October 6, 2021, the court ruled on the controversy, which concerned new Montana water quality standards that the state proposed and approved by the EPA. The plaintiffs argued that Montana, by promulgating water quality standards for nitrogen and phosphorus in “fording streams”, could not account for the costs of compliance. The trial court and the court of appeal agreed that the Clean Water Act and implementing water quality regulations do not preclude the use of an economic test in certain circumstances, and since the text of the Clean Water Act is not decisive, so Chevron deference must be applied to a reasonable interpretation of the law. However, the trial court challenged the 17-year waiver conditions provided by Montana, but the Ninth Circuit could not find any authority for that ruling, and it was overturned.

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