The US Supreme Court will not review a Second Circuit decision holding that the New York State Department of Environmental Conservation was justified in denying a Clean Water Act Section 401 certification for a proposed natural gas pipeline. Constitution Pipeline, LLC argued that states had abused their Clean Water Act certification authority to block federally approved interstate pipelines, raising national security concerns.
The court also rejected the North Coast Railroad Authority's petition to review a California Supreme Court decision holding that federal railroad regulations administered by the Surface Transportation Board had pre-empted the California Environmental Quality Act for privately owned railroads, but not for the state-owned North Coast Railroad Authority.
It also rejected the Public Service Company of New Mexico's petition for review of a Tenth Circuit decision that barred the renewal of a right of way through land allotted to Navajo Nation tribal members for a high-voltage power line. The Navajo Nation had acquired a partial ownership interest in two of the 57 allotted parcels along the right of way, blocking its renewal and – the Tenth Circuit ruled – prohibiting condemnation of the parcels. The Public Service Company of New Mexico argued that the Tenth Circuit's ruling threatened the renewal of many pipeline and power line rights of way that would soon expire.
The Supreme Court is still considering a petition to review a Montana Supreme Court decision holding that the Comprehensive Environmental Response, Compensation and Liability Act's bar on pre-enforcement review does not prohibit state common law tort claims that demand restoration damages which could impose stricter clean-up requirements than those imposed by the Environmental Protection Agency (EPA). The Superfund site at issue is a copper smelter where a company has spent 35 years and $470 million on remediation. Landowners within the site's boundaries are seeking damages to be placed in a trust account for remedial activities that are more stringent than those required by the EPA.
For further information on this topic please contact Samuel B Boxerman or Jim Wedeking at Sidley Austin LLP by telephone (+1 202 736 8000) or email ([email protected] or [email protected]). The Sidley Austin LLP website can be accessed at www.sidley.com.
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