Petitions for Certiorari Filed With Supreme Court in Two Environmental Cases

Petitions for certiorari have been filed with the Supreme Court of the United States regarding two recent rulings of the U.S. Court of Appeals for the Fifth Circuit. In both Aransas Project v. Shaw and In re: Deepwater Horizon, petitions for en banc review were denied, but a significant number of dissents have encouraged the petitioners to seek further review in the Supreme Court.

In Aransas Project v. Shaw, The Aransas Project is seeking a review of the Fifth Circuit’s ruling, reported at 756 F. 3d 801 (5th Cir. 2014), which reversed the lower court’s finding that the Texas Commission on Environmental Quality’s (TCEQ) water management practices has the effect of adversely impacting an endangered species, the whooping crane, by denying sufficient flowing quantities of fresh water into the Aransas National Wildlife Refuge, located along the Texas coast. The Court of Appeals, argues the petitioners, held that the lower court misunderstood the “proximate cause” evidentiary component of the Endangered Species Act (ESA), thereby allowing the Court of Appeals to disregard the lower court’s fact findings, made after a long trial. A request for en banc review was denied, but four dissenters complained that the majority was re-weighing the facts, something it is not permitted to do in the exercise of its appellate responsibilities. The petitioners also argue that the Court of Appeals’ ruling is in conflict with other ESA rulings in other circuits.

In another petition, Anadarko Petroleum Corporation is seeking the Supreme Court’s review of a Fifth Circuit ruling that defined “discharge” under the Clean Water Act (CWA) to include “a loss or absence of controlled confinement”–which happened as a result of the Deepwater Horizon oil spill in the Gulf of Mexico. The original decision of the Fifth Circuit panel is reported at 753 F.3d 570(5th Cir. Jun. 4, 2014), and the decision to deny an en banc review, based on a 7 to 6 vote of the Fifth Circuit judges, is reported at 775 F.3d 741 (5th Cir. Jan. 9, 2015). Anadarko’s argument is that the United States “seeks over $1 billion from Anadarko alone, even though all agree Anadarko was merely a non-operating investor and minority owner of the Well with no control over the vessel that both caused the spill and was a direct source from which oil entered the environment”, and that under this decision, and the circuit’s “new and expansive interpretation of ‘discharge'”, the government can seek penalties from the owners and operators of every facility and vessel connected with a spill, including a facility that did not release any oil into the environment. The majority of the court, however, was persuaded that a plain reading of the CWA required this result.