The Nickel Report

Earlier this month, the Supreme Court granted a petition for certiorari in Guam v. United States (No. 20-382), a case involving liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The case gives the Court an opportunity to better delineate the boundary between “cost recovery” claims under section 107, and “contribution” claims under section 113. See 42 U.S.C. §§ 9607, 9613(f). The Court will specifically address what kinds of settlement agreements trigger a section 113 contribution claim and its corresponding three-year statute of limitations.

On November 4, 2019, the US Court of Appeals for the Eleventh Circuit upheld the Clean Water Act (CWA) section 404 permit issued by the US Army Corps of Engineers (Corps) for the extension of an existing phosphate mine in central Florida. Center for Biological Diversity v. U.S. Army Corps of Engineers, No. 18-10541 (11th Cir. Nov. 4, 2019). The Corps permit authorizes the discharge of dredged or fill material into waters of the United States that comprise a small portion of the mining extension. Opponents challenged the permit in the Middle District of Florida, claiming the issuance of the permit violated the CWA, the National Environmental Policy Act (NEPA) by not considering “downstream” effects, and the Endangered Species Act (ESA). The district court rejected all of the claims, and the Eleventh Circuit affirmed.

On January 11, 2018, the Federal Energy Regulatory Commission (FERC) denied Constitution Pipeline Company, LLC’s Petition for a Declaratory Order that New York had waived its ability to act under section 401 of the Clean Water Act (CWA) by failing to grant or deny Constitution’s application for a section 401 certification within a “reasonable period of time.” See In re Constitution Pipeline Co., LLC, 162 FERC ¶ 61,014 (Jan. 11, 2018). The decision is another in a sequence of decisions from FERC and the federal courts of appeals concerning the time period for States to act under ...

The federal authorizations required to construct major infrastructure and mineral-extraction projects are the product of years of administrative review and collaboration between agencies and the project proponents. Unfortunately, the issuance of those authorizations is followed quickly by legal challenges from environmental NGOs, which almost always include a demand for preliminary injunctive relief during the pendency of the challenge. If granted, these injunctions can delay the effectiveness of the authorization by years.