Documents Archive

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Welcome to the Environmental and Natural Resources Law Clinic’s document archive.  Here you can find documents and important information on some of the matters that the Clinic has worked on in recent years.  The litigation documents on this page (briefs, rulings, comments, and filings) can be found in the public records for the case or appeal in which they were filed; we’ve collected them here to make it easier for you to review them.  In addition, we have included resources that the Clinic has made available to the public.

Delaware City Refinery Coastal Zone Act Litigation

These appeals, filed before the Coastal Zone Industrial Control Board and the Environmental Appeals Board, involve a challenge to the Secretary of DNREC’s approval of an air permit amendment for a Marine Vapor Recovery System to be used in controlling emissions during the loading of crude oil onto barges for shipment from the Delaware City Refinery to a sister refinery in Paulsboro, NJ (and potentially to other locations) resulting from the DE City Refinery’s building of a crude oil transfer operation.  The crude oil is brought to the Refinery by rail cars from the Bakken Fields in North Dakota and the tar sands operations in Canada.  The Clinic, on behalf of the Sierra Club and Delaware Audubon, challenge those portions of the Secretary’s Order finding that the operation is not prohibited by the Coastal Zone Act and does not require a permit under that Act.

Inland Bays Pollution Control Strategies Litigation

This appeal, filed in the Delaware Supreme Court, involved a challenge to the Pollution Control Strategy (PCS) for the Inland Bays issued by Delaware’s Department of Natural Resources and Environmental Control to reduce nutrient pollution in the Bays.  Sussex County and certain private developers challenged the provisions of the PCS setting buffers around the Bays on the grounds that they infringed upon Sussex County’s power to zone.  The Superior Court ruled in favor of the the County and developers, striking down the buffer provisions.  DNREC appealed that decision.  The Clinic, on behalf of the Sierra Club,  filed an Amicus Curiae Brief in support of DNREC’s position.  On December  2011, the Delaware Supreme Court ruled to affirm the Superior Court’s decision.

Prime Hook Litigation

This lawsuit, filed in United States District Court for the District of Delaware, challenged the Department of the Interior and the federal Fish and Wildlife Service’s practice of allowing farming and the use of genetically modified crops within the Prime Hook National Wildlife Refuge in Sussex County, DE.  The Complaint alleged violations of the National Wildlife Refuge System Administration Act for failure to determine if the farming was compatible with the Refuge’s purpose, violated the National Environmental Policy Act (NEPA) for failing to prepare an environmental impact statement before allowing the planting of genetically modified crops, and the federal Administrative Procedures Act.  The Court’s March 24, 2009 order granted Plaintiff’s Motion for Summary Judgment and enjoined farming until the government complied with the NWRSAA, NEPA, and APA.  The Clinic assisted in representing Plaintiffs Delaware Audubon Society, Public Employees for Environmental Responsibility, and Center for Food Safety.

Bombay Hook Litigation

This lawsuit, filed in United States District Court for the District of Delaware, follows up on the precedent set in the Prime Hook litigation and challenges the Department of the Interior and the federal Fish and Wildlife Service’s practice of allowing farming and the use of genetically modified crops within the Bombay Hook National Wildlife Refuge in Delaware.  The Complaint alleges violations of the National Environmental Policy Act (NEPA) for failing to prepare an environmental impact statement before allowing the planting of genetically modified crops, and the federal Administrative Procedures Act.  The Clinic represents Plaintiffs Delaware Audubon Society, Public Employees for Environmental Responsibility, and Center for Food Safety.  The matter was settled by agreement between the parties, resulting in the prohibition of farming on the Refuge until there is compliance with NEPA.

Challenge to Emergency Dredging Permit for Delaware City, DE Refinery

This action appeals to the Environmental Appeals Board in Delaware a permit allowing Premcor, owner of the oil refinery complex at Delaware City, DE, to engage in emergency dredging of a cooling water intake channel under Delaware’s Subaqueous Lands Act. The appeal alleges a failure to follow the Act because no public notice of the application was given and the failure of the Order authorizing the permit to require mitigation of the adverse environmental impacts from the dredging and the operation of the cooling water intake system.   The Clinic represents William Moyer in this appeal.

Blue Mountain Preservation Association Appeal

This permit appeal, filed with the Environmental Hearing Board (EHB) in Pennsylvania, challenged the grant of a NPDES permit for a development on the side of the Blue Mountain in Monroe County, PA allowing the discharge of stormwater into the Aquashicola Creek, a High Quality, Cold Water Fishery stream under Pennslvania regulations.  The appeal argued that PA’s Department of Environmental Protection (DEP) failed to require a full Antidegredation Analysis under 25 Pa. Code. 93.4 because there was no examination of thermal impacts on the stream.  The Board’s September 7, 2006 opinion agreed with the Clinic’s argument and remanded the permit.  In May 2007, the DEP indicated a preliminary desire to approve a revised permit, and the Clinic, on behalf of client Blue Mountain Preservation Association, in August 2007 submitted public comments on the proposed permit.  In May 2009, DEP issued a revised NPDES permit, and the Clinic filed an appeal to the EHB on behalf of BMPA.  The EHB conducted the hearing in this second appeal in January 2011.

Vane Line Bunkering Appeal

This permit appeal, filed in the Superior Court of Delaware, challenged an order of the Coastal Industrial Control Board (CZICB) requiring the grant of a permit under Delaware’s Coastal Zone Act to allow Vane Line Bunkering to begin oil lightering operations in Delaware Bay.  The appeal, on behalf of Clinic Client Delaware Nature Society, argued that the CZICB erred in its interpretation of the Act, and that an appropriate interpretation and application of the Act prohibited the proposed lightering operation.  The Court’s November 16, 2006 ruling agreed with the Clinic’s argument and reversed the CZICB ruling.

Get The Dirt Out – Chesapeake Educational Program

Get The Dirt Out – Chesapeake (GTDO) was a cooperative effort between the Clinic and the Waterkeeper Alliance, the Lower Susquehanna Riverkeeper, and the University of Maryland Environmental Law Clinic.  The focus of GTDO is to train citizen advocates to observe, report, and help to diminish sediment discharges from construction sites and thereby help improve water quality. The Clinic prepared an educational and training program focused on construction sites in Pennsylvania.  The resulting training manual consisted of these parts:

  • Part I: Why Stormwater Matters – A description of the problems created by sediment and erosion from stormwater runoff at construction sites.  GTDo-Why_Stormwater_matters
  • Part II: Regulation of Stormwater – A description of the laws that govern stormwater discharges from construction sites. GTDO_Regulation_Stormwater
  • Part III: Field Guide – A set of instructions and pictorial guide to help citizen advocates observe and report stormwater problems from construction sites in PA. GTDO_FIELD_GUIDE
  • Site Report Card – A handy tool to record observations and data from construction sites for reporting to local county conservation districts. GTDO_Site_Report_Card
  • List of PA County Conservation Districts GTDO_PA_Conservation_Districts (Current as of 10/08)

Citizens Guides re SLAPP Suits

In response to general concerns by citizens about legal challenges to citizen participation in permitting, land use, and other environmental regulatory actions (sometimes called “Strategic Lawsuits Against Public Participation,” or SLAPP Suits), the Clinic prepared these short summaries of the law:

 

Public Comments

Delmarva 2010 IRP – public comments submitted to the Delaware Public Service Commission on behalf of the Sierra Club on the 2010 Integrated Resource Plan of Delmarva Power and Light.  [link to comments]

Crown Landing – Public comments submitted January 2005 in response to a request for a status decision under Delaware’s Coastal Zone Act for a Liquefied Natural Gas (LNG) terminal on the New Jersey side of the Delaware River but within the boundaries of the state of Delaware.  The Comments argue that the facility is a prohibited bulk product transfer facility under the Act.  The Secretary ultimately agreed with the comments and ruled the facility was prohibited under the Act. Crown Landing Memo

Premcor Refining – Public comments submitted April 2008 in response to a request for a Coastal Zone Act permit allowing Premcor to NOx pollution Control Project at the Delaware City Refinery.  The Comments argue that the permit should be denied because the project fails to create a net positive environmental impact and that the project’s proposed “offset” does not meet the Act’s regulatory requirements. Premcor_Public_Comment_Final

Blue Mountain Preservation Association – See section above in Litigation Documents for link to public comments submitted in August 2007 on revised NDPES permit.

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