On June 11, 2018, the Supreme Court summarily affirmed the Ninth Circuit’s opinion in United States v. Washington through a 4-4 split, with Justice Kennedy taking no part in the decision due to his involvement in similar cases during his time as a circuit judge on the Ninth Circuit. The immediate effect of the high court’s decision will be to require the State of Washington to replace or modify, at the State’s expense, several hundred culverts placed in streams under roads and bridges throughout the State. In the longer run, however, the decision could have much more far-reaching impacts related to federal and state obligations to protect against habitat degradation of salmon and other aquatic species pursuant to their obligations under several Nineteenth Century treaties reached with Native American Tribes in the Pacific Northwest.
Last week, the Center for Biological Diversity, Water Keeper Alliance, and a coalition of other organizations served a Notice of Intent to Sue the U.S. EPA and Army Corps of Engineers (the “Agencies”), alleging the Agencies’ delay in implementing the Obama-era Waters of the U.S. (“WOTUS”) Rule violated the Endangered Species Act.
On January 8, 2018, the United States Supreme Court heard oral argument on the decision issued by Special Master Ralph Lancaster in the long-running dispute between Florida and Georgia over the fate of water use in the Apalachicola-Chattahoochee-Flint (ACF) Basin. The Special Master sided with Georgia, less on the merits than for procedural reasons, finding that Florida had failed to meet its burden of showing how Florida’s proposed remedy of a consumption cap on Georgia would be effective to curb alleged excessive water use by Georgia due to control of impoundments on the Chattahoochee River by the U.S. Army Corps of Engineers (“the Corps”), not a party to the suit.
The GeoProfessional Business Association (GBA) – formerly known as ASFE – has released a new study on the standard of care for conducting Phase I environmental site assessments. This document is the fourth in a series of studies the organization has produced since the inception of the due diligence process in the early 1990’s. The study is an evaluation of approximately 200 Phase I reports from across the country, written between 2007 and 2010. The results of the study will be a valuable tool in determining whether a Phase I conducted during that time period meets the standard of care or not.
The United States Supreme Court announced today that it will hear oral argument in the Florida v. Georgia lawsuit on January 8, 2018. In that case, Florida sought to mandate a statewide water usage cap for Georgia but was held to have failed to establish by clear and convincing evidence that such a remedy would be effective where the U.S. Army Corps of Engineers, a major manager of impoundments along the Chattahoochee River, was not a party to the lawsuit. The lawsuit represents the most recent battle in the long-running “water wars” among the Southeastern states over the Apalachicola-Flint-Chattahoochee River Basin.
A new chapter opened last week in the perennial water wars between Georgia and Florida. After briefing by both sides, including amici, relative to whether Special Master Ralph Lancaster correctly decided that Florida had failed to carry its burden in this original jurisdiction action, the Supreme Court in an October 10, 2017 Order granted oral argument in the case to be heard “in due course.” Presumably, that will yield an argument during the Court’s October Term which usually completes in June or July. Spokesmen for Georgia and Florida welcomed the opportunity to address the Court on the merits.
The dispute involves the water of the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”), a network of rivers, dams, and reservoirs that begins in northern Georgia and ends in the Florida panhandle. Georgia and Florida have been disputing the extent of each state’s use of the ACF Basin waters for years but recently, in 2014, the dispute made its way to the United States Supreme Court. There, Florida argued that overconsumption of waters in Georgia, particularly in connection with agribusiness uses on the Flint River, have led to dangerously low flows of waters into Florida from the ACF Basin and the downfall of the Apalachicola Bay’s oyster fishery. Florida requested that the Court cap the amount of water Georgia can use at levels that existed in 1992. Continue Reading Supreme Court Orders Oral Argument On GA-FL Water Wars
A key brief from the United States has set the United States Supreme Court on a path towards finally resolving the original jurisdiction dispute between Georgia and Florida over the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”). On August 7, 2017, the Trump Administration filed a brief in the United Stated Supreme Court as an Amicus Curiae in the disputed “water wars” case between Georgia and Florida. Postured where Florida is asking the Court to set aside the ruling of the Special Master who found that it had stated no redressable injury, the government brief sided with the Special Master’s ruling.
On July 14, 2017, three environmental groups (Environmental Integrity Project, Sierra Club, and Earth Justice) petitioned the Court of Appeals for the D.C. Circuit for a full review of its May decision that the EPA properly withheld testing data in response to a Freedom of Information Act (“FOIA”) request. The petition for rehearing en banc asks that the full Court of Appeals for the D.C. Circuit reconsider the environmental groups’ arguments as opposed to the three judge panel that originally heard the case.
An Act that was recently passed by the General Assembly has limited the damages private parties can recover against agricultural or forestry operations in civil actions for nuisance claims.
Attorney General Jeff Sessions recently issued a memorandum rolling out a new policy prohibiting settlement payments to third parties. The policy, which is effective immediately, prohibits DOJ attorneys from entering into settlement agreements that include payments to non-governmental organizations or third-party organizations that were not parties to the dispute. The memorandum aims to ensure that settlement funds are used to compensate victims, redress harm, or punish and deter unlawful conduct.