Environmental Groups Join DL and NJ Opposing Army Corps Dredging

On October 30th, as described in this earlier post, Delaware filed a suit to stop the U.S. Army Corps of Engineers from dredging the Delaware River for a new shipping channel. New Jersey joined the suit a few days later.

Yesterday, a coalition of environmental groups intervened in the suit, adding their own claims against the project, including alleged violations the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Clean Air Act (CAA), the Endangered Species Act (ESA), the Coastal Zone Management Act (CZMA), the Magnuson-Stevens Act, the Fish and Wildlife Coordination Act, and Delaware State law. The groups include Delaware Riverkeeper Network, National Wildlife Federation, New Jersey Environmental Federation, Clean Water Action, and the Delaware Nature Society. You can read the groups' press release here, and an article from the Press of Atlantic City here. A hearing on a preliminary injunction is scheduled for December 8th.

Federal District Court Finds Army Corps Liable for Hurricane Katrina Flooding

As you can read on CNN here and NPR's website, here. The opinion, from the U.S. District Court for the Eastern District of Louisiana, can be read here.

The Corps' liability was in tort, rather than statutory environmental law. But the entire theory of the case, and the causal link between the Corps' work and the damage from Katrina, is based on the premise that the Corps, knew it was destroying the surrounding environment in a manner that would endanger nearby residents in how it built and maintained the Mississippi River Gulf Outlet shipping canal. Judge Duvall explains in great detail how it caused massive erosion, along with salination of surrounding lakes and wetlands that destroyed plant life and limited the ability of those bodies of water to absorb Katrina's fury.

Although only about $750,000 was at stake in this case, if allowed to stand, it will set a major precedent, not just for Katrina victims, but also possibly for those living in the shadow of other major water re-routing projects built and maintained by the Corps. Some folks in Civil Appellate are going to be slammed for the next year or so, as appeal to the Fifth Circuit is inevitable.

Interior Continues Slow Process of Revoking Midnight Regulation on MTR

Advanced notice of proposed rulemaking won't result in rule until early 2011

In more regulatory activity, the Department of Interior, Office of Surface Mining Reclamation and Enforcement (OSM) announced its intention to issue an advanced notice of proposed rulemaking by the middle of this month for the rule meant to overturn the Bush Administration's December 2008 change in the Stream Buffer Zone Rule under the Surface Mine Reclamation and Enforcement Act (SMREA), 30 U.S.C. § 1292. That rule, they promise, will be out as soon as early 2011.

Another Federalism Battle Brewing

On Friday, Delaware filed suit in the U.S. District Court for the District of Delaware to stop Army Corps (re)dredging the Delaware River for a shipping channel, as the Philadelphia Inquirer reports here, and the Delaware News Journal, here. The Army Corps says this is routine maintenance of an interstate shipping channel over which it has jurisdiction under the Commerce Clause, whereas Delaware is seeking to to protect its environment--including listed species under the federal ESA.

Delaware rejected the Army Corps' application under the state Subaqueous Lands and Wetlands Acts for the project in July, but the Army Corps decided to go ahead anyway on October 25, finding that the federal government's right to maintain navigability on interstate waterways trumps Delaware's rights in this case. Delaware is seeking an injunction to stop the Corps, saying that the "decision by the Army Corps of Engineers to begin deepening Delaware waters is a direct challenge to the territorial authority of the State of Delaware and violates federal and state law.”

The Delaware Attorney General's press release--in which he notes that New Jersey is also on board in the fight--can be read here.

[Update: New Jersey, at the behest of Governor Corzine, has joined Delaware in its actions, filing a suit in U.S. District Court in New Jersey. The Philadelphia Inquirer reports on this development, here.]