Justia Zoning, Planning & Land Use Opinion Summaries

Coal residuals, “one of the largest industrial waste streams,” contain myriad carcinogens and neurotoxins. Power plants generally store it on site in aging piles or pools, risking protracted leakage and catastrophic structural failure. Regulations implementing the 1976 Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901, were long delayed. The Environmental Protection Agency (EPA), facing public outrage over catastrophic failures at toxic coal residual sites, and directed by a federal court to comply with its obligations under RCRA, promulgated its first Final Rule regulating coal residuals in 2015, 80 Fed. Reg. 21,302. Opponents challenged that Rule under the Administrative Procedure Act and RCRA, which requires EPA to promulgate criteria distinguishing permissible “sanitary landfills” from prohibited “open dumps.” Each claim relates to how coal residuals disposal sites qualify as sanitary landfills. EPA announced its intent to reconsider the Rule. The D.C. Circuit denied the EPA’s abeyance motion; remanded as to pile-size and beneficial-use issues; vacated 40 C.F.R. 257.101, which allows for the continued operation of unlined impoundments and a provision that treats “clay-lined” units as if they were lined; found the Rule’s “legacy ponds” exemption unreasoned and arbitrary; rejected claims by industry members that EPA may regulate only active impoundments; found that EPA provided sufficient notice of its intention to apply aquifer location criteria to existing impoundments; and held that EPA did not arbitrarily issue location requirements based on seismic impact zones nor arbitrarily impose temporary closure procedures. View "Utility Solid Waste Activities v. Environmental Protection Agency" on Justia Law

In a discretionary appeal, the issue reviewed by the Pennsylvania Supreme Court centered on whether the Commonwealth Court erred in reversing the decision of the Lycoming County Court of Common Pleas, which, in turn, had reversed the decision of the Fairfield Township Board of Supervisors (the “Board”) to allow for the drilling, construction, development and operation of unconventional natural gas wells as a conditional use in a district zoned Residential-Agricultural (“R-A”). The Supreme Court determined after review of the evidentiary record, the Board's decision was not supported by the evidence, and because the proposed use was not similar to any permitted use in the R-A district as required under the Fairfield Township Zoning Ordinance (the “Ordinance”), the Court reversed the decision of the Commonwealth Court. View "Gorsline v Bd. of Sup. of Fairfield Twp." on Justia Law

Petitioners Mary Allen, Fred Ward, and other interested parties, appealed the decision of the New Hampshire Site Evaluation Committee (Committee) authorizing respondent Antrim Wind Energy, LLC (Antrim Wind), to construct and operate nine wind turbines in the town of Antrim. Antrim Wind originally filed an application (Antrim I) with the Committee in 2012, seeking authorization to construct ten wind turbines. Six of the turbines would be equipped with red flashing aviation obstruction lights. The project also included four miles of new gravel surfaced roads, a joint electrical system, an interconnection substation, and a maintenance building. Antrim Wind further proposed to construct a meteorological tower between turbines three and four to obtain wind data, dedicate 800 acres of land to conservation easements, and install a radar activated lighting system. Antrim I was initially denied; a few years later, Antrim II was filed and ultimately approved by the Committee, finding the second application reflected a “substantial change” from the first application, and as such, would not “have an unreasonable adverse effect on the health, safety, or aesthetics of the region. On appeal, petitioners argued the Committee’s ultimate decision was unreasonable, unlawful, and unjust because: (1) the subcommittee was unlawfully constituted; (2) the denial of Antrim I barred Antrim Wind’s Antrim II application under the doctrine of res judicata as well as the subsequent application doctrine as set forth in Fisher v. City of Dover, 120 N.H. 187 (1980); and (3) there was insufficient evidence in the record to support the subcommittee’s finding that the project proposed in Antrim II would not have an unreasonable adverse impact on aesthetics, public health, and safety. After review of the record, the New Hampshire Supreme Court concluded there was competent evidence to support all of the subcommittee’s factual findings. The subcommittee deliberated about each of these assessments and impacts and determined which experts it found to be more credible. The subcommittee also imposed certain mitigation measures and conditions to address remaining concerns and to ensure regulatory compliance. Accordingly, the Court concluded petitioners failed to show reversible error. View "Appeal of Allen et al." on Justia Law

The 74-acre Washington County parcel, near the Ohio River, is subject to a 1980 oil and gas lease between the then-owners and Collins-McGregor, to permit “mining and operating for oil and gas and laying pipe lines, and building tanks, powers, stations, and structures thereon, to produce, save and take care of said products.” Collins-McGregor committed to make royalty payments based on the gas produced and to deliver a portion of the oil produced from the land to the lessors. The lease “shall remain in force for a term of One (1) years from [the effective] date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.” A well was drilled in 1981 and has produced oil and gas in paying quantities since then from the “Gordon Sand” formation. The Landowners contend that production of oil and gas has occurred near their property from below that formation but Collins-McGregor has not explored deep formations for lack of equipment or financial resources. They sought a judgment that the portion of the lease covering depths below the Gordon Sand has terminated because it has expired or been abandoned and that Collins-McGregor has breached implied covenants, including implied covenants of reasonable development and to explore further. The Supreme Court of Ohio affirmed dismissal. Ohio law does not recognize an implied covenant to explore further separate from the implied covenant of reasonable development. View "Alford v. Collins-McGregor Operating Co." on Justia Law

Under the federal environmental laws, the owner of property contaminated with hazardous substances or a person who arranges for the disposal of hazardous substances may be strictly liable for subsequent clean-up costs. The United States owned national forest lands in New Mexico that were mined over several generations by Chevron Mining Inc. The question presented for the Tenth Circuit’s review was whether the United States is a “potentially responsible party” (PRP) for the environmental contamination located on that land. The Tenth Circuit concluded that under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the United States is an “owner,” and, therefore, a PRP, because it was strictly liable for its equitable portion of the costs necessary to remediate the contamination arising from mining activity on federal land. The Court also concluded the United States cannot be held liable as an “arranger” of hazardous substance disposal because it did not own or possess the substances in question. The Court reversed the district court in part and affirmed in part, remanding for further proceedings to determine the United States’ equitable share, if any, of the clean-up costs. View "Chevron Mining v. United States" on Justia Law

Statoil Oil & Gas LP appealed judgments dismissing without prejudice its actions against numerous defendants, seeking a determination of the proper distribution of oil and gas revenues from Williams and McKenzie County wells on land adjacent to the Missouri River and under Lake Sakakawea. It was undisputed that the United States claimed an interest in the property and, although the United States waived sovereign immunity regarding real property title disputes, those actions against the United States had to be brought and resolved in a federal court. The parties therefore agreed that joinder of the United States was not feasible for purposes of N.D.R.Civ.P. 19(a). The provisions of N.D.R.Civ.P. 19(b) come into play:"(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. Considering N.D.R.Civ.P. 19(b)(1), the district court noted the United States would be prejudiced to some extent by its absence in the proceedings because, although it would not be bound by a state court judgment, a judgment in favor of other mineral owners would cloud its record title to the disputed property. This could force the United States to institute a proceeding to protect its interests in the property, resulting in a waste of judicial and party resources. The trial court concluded there was a risk of substantial prejudice to the United States (including both its mineral interests and its sovereignty) if this matter proceeded in its absence, and therefore the first factor favors dismissal. The North Dakota Supreme Court affirmed, concluding the district court did not abuse its discretion in dismissing the actions because Statoil failed to join the United States as an indispensable party. View "Statoil Oil & Gas, LP v. Abaco Energy, LLC" on Justia Law

The circuit court affirmed the Trempealeau County Environment & Land Use Committee’s denial of a conditional use permit application for non-metallic mineral mining submitted by AllEnergy Corporation and allEnergy Silica, Arcadia, LLC (collectively, AllEnergy). The court of appeals affirmed the circuit court’s order. The Supreme Court affirmed, holding (1) the Committee applied the factors and considerations set forth in the applicable ordinance and thus kept within its jurisdiction in denying AllEnergy’s application for a conditional use permit; (2) there is substantial evidence to support the Committee’s decision to deny AllEnergy a conditional use permit; and (3) this court does not adopt the new legal doctrine urged by AllEnergy that a conditional use permit applicant is entitled to the permit under certain conditions. View "AllEnergy Corp. v. Trempealeau County Environment & Land Use Committee" on Justia Law

Substantively, in three somewhat interconnected claims, Joe and Yvette Hardesty (collectively, Hardesty) attacked State Mining and Geology Board (Board) findings, contending the trial court misunderstood the legal force of his 19th century federal mining patents. He asserted he had a vested right to surface mine after the passage of SMARA without the need to prove he was surface mining on SMARA’s operative date of January 1, 1976. He argued the Board and trial court misapplied the law of nonconforming uses in finding Hardesty had no vested right, and separately misapplied the law in finding that his predecessors abandoned any right to mine. These contentions turned on legal disputes about the SMARA grandfather clause and the force of federal mining patents. Procedurally, Hardesty alleged the Board’s findings did not “bridge the gap” between the raw evidence and the administrative findings. Hardesty also challenged the fairness of the administrative process itself, alleging that purported ex parte communications by the Board’s executive director, Stephen Testa, tainted the proceedings. The Court of Appeal reviewed the facts, and found they undermined Hardesty’s claims: the fact that mines were worked on the property years ago does not necessarily mean any surface or other mining existed when SMARA took effect, such that any right to surface mine was grandfathered. However, the Court agreed with the trial court’s conclusions that, on this record, neither of these procedural claims proved persuasive. Accordingly, the Court affirmed the judgment denying the mandamus petition. View "Hardesty v. State Mining & Geology Board" on Justia Law

Two companies applied for permits to expand their oil terminals on Grays Harbor. The issue here this case presented was whether the Ocean Resources Management Act (ORMA), applied to these expansion projects. The Shoreline Hearings Board (Board) and the Court of Appeals held that ORMA did not apply to these projects based on limited definitions in the Department of Ecology's (DOE) ORMA implementation regulations. The parties also contested whether these projects qualify as "ocean uses" or "transportation" under DOE's regulations. The Washington Supreme Court held that the Court of Appeals’ interpretation improperly restricted ORMA, which was enacted to broadly protect against the environmental dangers of oil and other fossil fuels. The Supreme Court also held that these projects qualified as both ocean uses and transportation. And though not discussed by the parties or the Court of Appeals, the Supreme Court found these projects qualified as "coastal uses" under DOE's regulations. Accordingly, it reversed the Court of Appeals and remanded for further review under ORMA's provisions. View "Quinault Indian Nation v. City of Hoquiam" on Justia Law

Plaintiffs appealed the district court’s denial of their request for a preliminary injunction to prevent the drilling of certain oil and gas wells in the Mancos Shale formation of the San Juan Basin in New Mexico. The district court concluded that Plaintiffs had failed to satisfy three of the four elements required to obtain a preliminary injunction: (1) Plaintiffs had not demonstrated a substantial likelihood of success on the merits of their claims; (2) the balance of harms weighed against Plaintiffs; and (3) Plaintiffs failed to show that the public interest favored an injunction. Finding no reversible error in the district court's denial, the Tenth Circuit affirmed. View "Dine Citizens v. Jewell" on Justia Law