Gravel2Gavel Construction & Real Estate Law blog — May 20, 2025

THE U.S. SUPREME COURT

City & County of San Francisco v. EPA(March 4, 2025).
In its first major environmental decision in the 2024 Term of the Court, the Court’s analyses of the Clean Water Act concluded there was no provision within the Act that supported the imposition of an ambiguous standard The majority of the Court lamented the lack of a concrete plan to achieve compliance. This new standard could also threaten the Act’s “permit-shield,” which deems a permittee in compliance with the laws if they adhere to the terms of their permit. The opinion fails to mention the recent revocation by the Supreme Court of the Chevron doctrine which put many agency decisions beyond the reach and review of reviewing courts. The city of San Francisco operates a complex wastewater facility that is covered by a municipal Clean Water Act NPDES Permit issued by EPA. The Supreme Court ruled that the new provisions in the latest permit renewal make the permittee responsible for the quality of any water body into which they discharge pollutants. Moreover, even if a permittee “punctiliously” follows every requirement of the permit, if the quality of the receiving water falls below the applicable standard–which the permit does not set forth in any particularity–the Court suggests that the city could be heavily penalized for such a transgression even though it was never obligated by the permit to take any specific steps other than those it undertook.

Alabama et al v California, et al.

(March 10, 2025).The Court denied the request from several states to exercise its original jurisdiction in hearing their complaints against other states who were using state tort laws to bring lawsuits against energy companies before their local courts over various climate change transgressions. Justice Thomas, joined by Justice Alito, observed that the Court all too quickly dismisses the use of its original jurisdiction to settle disputes between the states, and that the use of state courts to affect national energy policy is unwise.
ExxonMobil Corporation v. Environment Texas Citizens Lobby

(March 11, 2025)On March 11, 2025, Exxon Mobil Corporation filed a petition for certiorari seeking the Court’s review of a Fifth Circuit en banc decision in a prolonged and hard-fought Clean Air Act Citizen Suit controversy.
FEDERAL COURTS OF APPEAL

The Fourth Circuit

State of Maryland v. 3M Company

(March 7, 2025)In a 2-to-1 decision, the court held that 3M Company’s invocation of the “federal officer removal statute” warrants further review by the trial court in a PFAS lawsuit filed against 3M by the State of Maryland. The majority was persuaded that 3M’s argument that it produced the foam retardment product for the U.S. military needs to be weighed by the trial court.
The Fifth Circuit

Texas, et al v. Environmental Protection Agency, et al

. (March 25, 2020)In 2016, EPA revised the “ozone standard,” which triggered states’ obligations under Clean Air Act to modify State Implementation Plans to implement the changes. Many states submitted their revised SIPs for EPA’s review and approval. EPA rejected several plans and the states filed suits to contest EPA’s actions in eight different federal appeals courts. The Tenth Circuit agreed that the U.S. Court of Appeals, DC Circuit can only review the EPA’s actions disproving the SIPS. The Fifth Circuit, however, held that these actions reflect local conditions or interests and are not an issue of national concern. The Fifth Circuit decided that the SIP challenges filed by Texas (and Louisiana and Mississippi), as well as the Fifth Circuit, were properly heard. The court held, on the merits, that while Texas can interpret the Clean Air Act in a way that suits its needs, the Clean Air Act also requires EPA make its own analysis. Insofar as EPA disagrees with Texas’s (and Louisiana’s) arguments, the court upholds EPA. The Mississippi SIP was vacated by EPA for being arbitrary and capricious. The Circuit conflict over the proper venue may be settled by to the Supreme Court.
Inclusive Louisiana et al. v. St James Parish et al.

(April 9, 2025).The plaintiffs were described by the court to be “two faith-based and community-based organisations” joined by a St James Parish church. They brought seven claims against the parish for violations of their civil rights. The plaintiffs claim that the Parish authorities have discriminated against them for many years by “directing that hazardous facilities be developed in majority-Black districts and their residents have had to bear the environmental burdens associated such development.” In fact, the Parish has granted every request by corporations to place their heavy industrial facility in majority-Black areas, and even Black Churches have suffered discrimination by the Parish authorities. However, the federal trial court dismissed each and every claim The lower court ruled, in brief, that the plaintiffs did not have standing to bring these claims, and that state statutes of limitations had expired. This further justified dismissal. The Fifth Circuit reversed lower court and this case is likely to be tried. The statute of limitations defense has been rejected because many actions taken by the Parish authorities are alleged to have been racially biased. Standing can also be created by local zoning decisions that affect the plaintiffs. Many Louisiana coastal communities have sued energy companies in state courts to recover financial compensation for their damages. Federal Communications Commission v. AT&T Corporation
(April 17 2025)

The Court held that AT&T had a right to a jury to review EPA’s enforcement order against AT&T for $57 million. The agency’s enforcement unit investigated AT&T and determined that this fine was appropriate. EPA had to pay the fine first before requesting a judicial review. The court was impressed by these facts and concluded that AT&T had the right to exercise its constitutional rights as outlined in the Seventh Amendment. The Supreme Court’s decision in Jarkesy, countenancing the availability of Seventh Amendment trials in federal administrative actions, had its origins in the Fifth Circuit.The Ninth Circuit
Litekyan v.

United

States Air Force (February 6, 2025)In a 2-1 ruling on this important RCRA permitting case, the court reversed the lower court’s dismissal of a complaint that the Air Forces’ proposed renewal of a RCRA permit authorizing the disposal of unexploded ordnance at Tarague Beach in Guam was violative of NEPA because no NEPA environmental impact statements were prepared by the Air Force in connection with its latest RCRA permit renewal application. The Air Force has managed the disposal of hazardous waste generated from ordinance activities at this facility on Guam for many years. The Guam EPA is responsible for the permitting. On appeal, the Air Force asserted that there was no “final action” here because the Guam EPA had not reviewed or made any determination regarding the permit application.Accordingly, the Air Force asserted that there was no “find act” to review because the Guam EPA had made the decision regarding the new permit application. The majority of the court disagreed, stating that the decision to submit a renewed application and the details regarding the operation reflected the commitment and legal obligations of the Air Force, which determined the agency’s legal obligations. Therefore, it was engaged in a judicial review under the Administrative Procedure Act. A strong dissent argued that there could not be a final action triggering APA if the permit renewal request has not been approved or denied. The dissent stressed the point that a perfunctory action, such as preparing and filing for a permit renewal is not enough on its own to qualify as “final agency action.” Also, “taken to its logical conclusion,” the majority’s novel and broad theory would subject almost every operational action to judicial review.” A petition seeking a rehearing has been filed by the Air Force.
The Eleventh Circuit

Daniels v. Executive Director of the Florida Fish and Wildlife Conservation Commission (FWC)

(February 6, 2025)

Daniels is a commercial fisherman, and his fishing vessels were operating in waters constituting the Exclusive Economic Zone (EEZ). In April 2020, he took his father’s Florida-registered fishing boat into the Gulf of Mexico EEZ to pursue Florida pompano. This fish is protected by Florida. Officers from the Florida FWC were on patrol in federal waters when Daniels caught pompano using gillnets. He was arrested for harvesting pompano against state law. Daniels argued that federal law preempted the state rules and that they were constitutionally invalid. He also argued the state rules had no place in federal waters. The trial court dismissed both the constitutional and this claim. On appeal, the Eleventh Circuit affirmed, holding that the relevant federal statute, the MagnusonStevens Fishery Conservation Act, does not preempt the state’s role in protecting the Florida pompano. Okeelanta Corporation, et al. U.S. Army Corps of Engineers et al. (ACOE)
(May 25, 2025).

The Eleventh Circuit returned a Clean Water Act NPDES case to the trial court, because it did have jurisdiction because the U.S. Army Corps of Engineers had not taken a “final action”. The plaintiffs filed the case under the Administrative Procedure Act in relation to an ACOE permit request that affects Comprehensive Everglades Restoration Act. The Corps argued the plaintiffs failed to prove their standing to contest the action because the Corps hadn’t made a final decision, as required by APA. The court found that the plaintiffs did not have standing after a thorough review of the administrative record. The case was remanded to the U.S. District Court for the Southern District of Florida.STATE CASES
Texas Supreme Court

Save Our Springs Alliance v. TCEQ (April 11, 2025)

The court issued a unanimous ruling interpreting the Texas Water Code and the TCEQ’s permitting rules and procedures. Save Our Springs Alliance joined other opponents in opposing the TCEQ decision to grant a wastewater permitting to the city Dripping Springs, Texas. The permit allows Dripping Springs, a rapidly growing city, to discharge large amounts of treated wastewater into Onion Creek. Local environmental groups opposed the permit, arguing that this discharge would degrade water quality in Onion Creek based on numerical changes to individual parameters. The agency claimed that its “antidegradation” rules permitted the TCEQ the discretion to assess the water-quality of Onion Creek as a “whole” and that it was within its rights to do so. The executive director of TCEQ approved the permit. It was then reviewed by an administrative law judge in a contested hearing. A settlement agreement with Dripping Springs also led to the addition of conditions to the permit. The Texas Supreme Court issued its unanimous decision after all parties except SOS withdrew. This is an important case which interprets the Texas Water Code, the implementation of the Code by the TCEQ’s rules, and the actions taken by EPA in its routine supervision of state agency permitting.

REGULATORY NOTES
On March 13, 2025, the Federal Energy Regulatory Commission (FERC) published a Federal Register notice that it was withdrawing an earlier determination that “miscellaneous gas products” qualify as “covered products” under the Energy Policy and Conservation Act, and accordingly, will not be subject to the energy conservation standards that apply to many products in household use. (See 90 FR).

On 17 March 2025, the S. Coast Guard changed its regulations to replace the Gulf of Mexico with the “Gulf of America” effective March 17,2025. The Coast Guard regulations that are published in 33 CFR and 45 CFR may be affected. (See 90 FR 12235. (See 90 FR 12235.) The Council on Environmental Quality published a Federal Register announcement on March 19, 2025 announcing that the agency’s NEPA regulations would be removed from the Code of Federal Regulations. (See 90 FR).

In April 2025, the Senate Environment & Pacific Works Committee started working on a bipartisan effort that would “streamline” superfund remedial cleaning program prices. The committee is concerned about prolonged delays resulting from the administration of the CERCLA cleanup program, and statutory changes may be required.

• Public Law 117-58, The Infrastructure Investment and Jobs Act, reinstated the Superfund Chemical Taxes, effective on July 1, 2022.These are federal excise taxes imposed on a host of chemical substances to generate funds for Superfund cleanups. The IRS published the most recent Federal Register notices on May 6, 2025 at page 19245. Three substances may be added. Also, note that the Department of Energy has published in the May 16, 2025, edition of the Federal Register several notices of proposed rulemaking regarding the department’s decision to rescind many special Energy Conservation rules that apply to household appliances.
• The Congressional Review Act
• The House of Representatives has exercised its authority under the Congressional Review Act (see Chapter 8 of Title 5 of the United States Code) to pass three House Joint Resolutions to disapprove the decisions of EPA to grant a waiver of preemption to the California Air Resources Board pursuant to Section 209 of the Clean Air Act. House Joint Resolutions 87, 88, and 89 record the Congressional rejection of EPA waivers. These new EPA regulations related to various motor vehicles “zero emissions” as well as other new requirements codified CARB, which would conflict with federal government’s authority under the Clean Air Act to regulate such emission. These measures will be sent to the Senate for consideration. The EPA Administrator said that waiver decisions are not rules, and therefore are not subject to the Congressional Review Act. The Government Accountability Office (GAO) has also expressed this view, but it is not clear what impact the Supreme Court’s ruling in the “Chevron Deference and Loper Bright Enterprises V. Raimondo Cases” will have.

  Story originally seen here