The U.S. District Court for the District of Minnesota recently granted summary judgment for the defendants in Sierra Club v. Clinton, Case No. 09-cv-02622, which concerned permits that federal agencies issued to Enbridge Energy for an oil pipeline expansion project, which includes pipeline in Illinois. Here's how the Court described the project:
"This case involves the construction and operation of the [Alberta Clipper] AC and [Southern Lights Diluent] SLD Pipelines in the United States. These pipelines are being constructed by Enbridge as part of a pipeline expansion project. The AC Pipeline is an underground pipeline that extends from Hardisty, Alberta, Canada, to Superior, Wisconsin. The AC Pipeline crosses the U.S.-Canada border near Neche, North Dakota. In the United States, the AC Pipeline consists of approximately 326 miles of a 36-inch diameter pipeline extending from Neche, North Dakota, across Minnesota, to Superior, Wisconsin. At Superior, the AC Pipeline will connect with an existing mainline to Chicago, Illinois. The AC Pipeline will transport heavy crude oil, or bitumen, extracted from tar sands in Canada. The AC Pipeline project will have the capacity to transport approximately 450,000 barrels-per-day ('bpd') of crude oil. The AC Pipeline will be installed primarily within or adjacent to an existing Enbridge pipeline corridor.
"The SLD Pipeline is a 20-inch diameter pipeline extending from Manhattan, Illinois, to Clearbrook, Minnesota. At Clearbrook, it will connect with an existing Enbridge pipeline, Line 13. Enbridge intends to reverse the flow of Line 13 to create a diluent delivery line to transport diluent from Illinois to Canadian oil sands producers. Diluent is a light petroleum liquid used to facilitate the flow of heavy crude oil, which must be diluted in order to be transported through a pipeline. The new segment of the SLD Pipeline that will run from Superior, Wisconsin, to Clearbrook, Minnesota, will also be 'installed primarily within or adjacent to the existing Enbridge pipeline corridor' and will be constructed at the same time as the AC Pipeline."
The Plaintiffs, nonprofit environmental organizations, claimed that the defendants, federal agencies and the heads of those agencies, violated the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act when they issued final Environmental Impact Statements ("EIS") and permits for the new projects. The trial court denied the plaintiffs' motion for summary judgment but granted the defendants' motion for summary judgment, thereby ending the case.
Generally, NEPA requires federal agencies to prepare an EIS for major Federal actions significantly affecting the quality of the human environment. The EIS must contain a "detailed statement" on the environmental impact of the proposed action, any avoidable adverse environmental effects of the proposed action, the resource commitments involved in the proposed action, and alternatives to the proposed action. However, the standard is deferential to the agencies: "NEPA imposes procedural requirements, not substantive results, on agencies. NEPA does not allow a court to substitute its judgment for that of an agency as to the environmental consequences of the agency's actions. A court's review is to "insure that the agency has taken a 'hard look' at the environmental consequences."
In a detailed forty-one page opinion, the trial court ruled that the defendants did not violate NEPA and indeed did take a "hard look" at the environmental consequences of the new pipeline project.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Showing posts with label Permits. Show all posts
Showing posts with label Permits. Show all posts
Monday, November 22, 2010
Tuesday, October 5, 2010
In Disjointed Opinion, IL Appellate Court Affirms Grant of Petition to Delist Residue as Hazardous Waste
The Appellate Court of Illinois, Third District, recently issued an opinion in Sierra Club v. Illinois Pollution Control Board, Case No. 3-09-0120, which concerned Peoria Disposal Company's ("PDC") permit to operate a waste stabilization facility near Peoria, Illinois, for the storage and treatment of hazardous and nonhazardous waste. PDC filed a petition with the Illinois Pollution Control Board to delist residue resulting from the treatment of electric arc furnace dust ("EAFD") as a hazardous waste for disposal purposes, after the EAFD is treated and stabilized.
The Pollution Control Board issued an order granting PDC's petition, subject to several conditions. Two groups, Sierra Club and Peoria Families Against Toxic Waste, filed an appeal seeking reversal of the Board's order, arguing that the Board erred in (1) failing to consider the factors set forth in the relevant statute, (2) not requiring PDC to address future permit modifications; (3) finding that local citing approval was not required; and (4) not requiring reopener language. PDC and the Board argued that the opposition groups did not have standing to appeal the Board’s order.
Each appellate court justice on the three-justice panel came to a different conclusion concerning this appeal:
(1) Justice Lytton (delivering the "opinion of the court") found that the opposition groups had standing because they were persons "adversely affected or threatened" by the delisting. However, Justice Lytton affirmed the Board's order on the merits of the case, finding that the Board properly granted PDC's petition.
(2) Justice Carter specially concurred in the judgment, reasoning that the opposition groups did not have standing to bring the appeal.
(3) Justice Wright concurred in part and dissented in part, reasoning that the opposition groups did have standing, but concluding that the Board's decision was arbitrary and capricious because the Board did not make required factual findings.
The opinions of Justices Lytton and Carter combined to dismiss the appeal. However, it will be interesting to see what will happen with the standing issue if this case gets decided by the Illinois Supreme Court.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
The Pollution Control Board issued an order granting PDC's petition, subject to several conditions. Two groups, Sierra Club and Peoria Families Against Toxic Waste, filed an appeal seeking reversal of the Board's order, arguing that the Board erred in (1) failing to consider the factors set forth in the relevant statute, (2) not requiring PDC to address future permit modifications; (3) finding that local citing approval was not required; and (4) not requiring reopener language. PDC and the Board argued that the opposition groups did not have standing to appeal the Board’s order.
Each appellate court justice on the three-justice panel came to a different conclusion concerning this appeal:
(1) Justice Lytton (delivering the "opinion of the court") found that the opposition groups had standing because they were persons "adversely affected or threatened" by the delisting. However, Justice Lytton affirmed the Board's order on the merits of the case, finding that the Board properly granted PDC's petition.
(2) Justice Carter specially concurred in the judgment, reasoning that the opposition groups did not have standing to bring the appeal.
(3) Justice Wright concurred in part and dissented in part, reasoning that the opposition groups did have standing, but concluding that the Board's decision was arbitrary and capricious because the Board did not make required factual findings.
The opinions of Justices Lytton and Carter combined to dismiss the appeal. However, it will be interesting to see what will happen with the standing issue if this case gets decided by the Illinois Supreme Court.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Tuesday, September 7, 2010
Deferring to Illinois EPA, Environmental Appeals Board Rules That PSD Permits Are Not Required to Regulate Greenhouse Gas Emissions
U.S. EPA's Environmental Appeals Board recently issued an interesting decision concerning greenhouse gas requirements of air permits in the case of In re: Power Holdings of Illinois, LLC, PSD Appeal No. 09-04. This case involves a petition for review filed by the Sierra Club challenging certain conditions of a prevention of significant deterioration (“PSD”) permit issued by the Illinois Environmental Protection Agency, under delegated federal authority, to Power Holdings of Illinois, LLC for construction of a synthetic natural gas (“SNG”) manufacturing plant in Jefferson County, Illinois.
The Sierra Club raised three issues on which it sought review. The first two issues were: (1) the permit fails to include a flare minimization plan as part of the final permit and allows Power Holdings to develop such a plan without full public participation; (2) the permit allows SNG or natural gas to be used to fire “superheaters” at the plant without addressing emissions associated with the manufacture of SNG. The Appeals Board rejected the Sierra Club's challenge on these two issues. The Board first held that the flare minimization plan supplements other permit requirements and properly requires Power Holdings to develop methods to reduce emissions from flaring events based on actual operating experience. The Board then held that Sierra Club failed to demonstrate the presence of collateral environmental impacts that would justify eliminating SNG as a fuel for the superheaters.
The third issue raised by Sierra Club was that the permit failed to regulate greenhouse gases (carbon dioxide and methane), and thus violated a State emissions limitation at Ill. Admin. Code tit. 35 § 201.141 incorporated into Illinois’ approved state implementation plan (“SIP”). Section 201.141 provides, in part, as follows:
"No person shall cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as, either alone or in combination with contaminants from other sources, to cause or tend to cause air pollution in Illinois . . . ."
According to Sierra Club, greenhouse gases constitute "contaminants" causing or contributing to "air pollution" under Section 201.141. However, the Illinois EPA disagreed and made clear to the Board that it does not interpret Section 201.141 as requiring regulation of greenhouse gas emissions. The Board deferred to Illinois EPA's interpretation and rejected Sierra Club's argument:
"Because the State of Illinois has interpreted the disputed provision of its state SIP as inapplicable to greenhouse gases, and because this interpretation does not strike the Board as so unreasonable as to not be entitled to the substantial deference afforded state interpretations of their own laws, the Board declines to substitute its judgment for that of the IEPA in this instance. Review is therefore denied on this issue."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
The Sierra Club raised three issues on which it sought review. The first two issues were: (1) the permit fails to include a flare minimization plan as part of the final permit and allows Power Holdings to develop such a plan without full public participation; (2) the permit allows SNG or natural gas to be used to fire “superheaters” at the plant without addressing emissions associated with the manufacture of SNG. The Appeals Board rejected the Sierra Club's challenge on these two issues. The Board first held that the flare minimization plan supplements other permit requirements and properly requires Power Holdings to develop methods to reduce emissions from flaring events based on actual operating experience. The Board then held that Sierra Club failed to demonstrate the presence of collateral environmental impacts that would justify eliminating SNG as a fuel for the superheaters.
The third issue raised by Sierra Club was that the permit failed to regulate greenhouse gases (carbon dioxide and methane), and thus violated a State emissions limitation at Ill. Admin. Code tit. 35 § 201.141 incorporated into Illinois’ approved state implementation plan (“SIP”). Section 201.141 provides, in part, as follows:
"No person shall cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as, either alone or in combination with contaminants from other sources, to cause or tend to cause air pollution in Illinois . . . ."
According to Sierra Club, greenhouse gases constitute "contaminants" causing or contributing to "air pollution" under Section 201.141. However, the Illinois EPA disagreed and made clear to the Board that it does not interpret Section 201.141 as requiring regulation of greenhouse gas emissions. The Board deferred to Illinois EPA's interpretation and rejected Sierra Club's argument:
"Because the State of Illinois has interpreted the disputed provision of its state SIP as inapplicable to greenhouse gases, and because this interpretation does not strike the Board as so unreasonable as to not be entitled to the substantial deference afforded state interpretations of their own laws, the Board declines to substitute its judgment for that of the IEPA in this instance. Review is therefore denied on this issue."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
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