On November 17, 2017, the United States District Court for the Southern District of Florida – for a second time – denied a Motion to Dismiss filed by defendant Florida Power & Light Company in a federal Clean Water Act citizen suit filed by Davis & Whitlock on behalf of the Southern Alliance for Clean Energy (SACE), the Tropical Audubon Society, and Friends of the Everglades.
The Plaintiffs brought the lawsuit to address past and ongoing illegal discharges of pollutants, including radioactive tritium, from the unlined cooling canal system at FPL’s Turkey Point Nuclear Power Plant near Miami into the Biscayne Bay and the Biscayne Aquifer. These discharges are in violation of FPL’s National Pollutant Discharge Elimination System (NPDES) Permit issued under the Clean Water Act, and moreover threaten the Outstanding National Resource Waters of the Biscayne Bay and the Biscayne Aquifer, the water supply for Miami-Dade County and the Florida Keys.
FPL’s novel argument that Plaintiffs lacked standing to challenge its illegal, ongoing discharges of pollutants was first denied by U.S. Magistrate Judge Alicia Otazo-Reyes in a Report and Recommendation filed on September 20, 2017. FPL objected to Magistrate Judge Otazo-Reyes’ Report and Recommendation; however, after hearing arguments of the parties on November 16, 2017, District Judge Darrin P. Gayles took little more than a day to Affirm and Adopt the Magistrate Judge’s Report and Recommendation and to deny FPL’s motion to dismiss.
FPL is also concurrently asking its ratepayers to pay over $200 million in costs relating to its attempts to clean-up the groundwater contamination in the Biscayne Aquifer discussed above.
Davis & Whitlock has prevailed on appeal to the Fourth Circuit Court of Appeals and obtained the reversal of a 2016 decision of the District Court for the Western District of North Carolina. The case involves four threatened grizzly bears who are confined to two tiny, virtually barren and archaic concrete pits at the Cherokee Bear Zoo in Cherokee, North Carolina. Davis & Whitlock, on behalf of two enrolled members of the Eastern Band of Cherokee Indians, brought suit against this roadside zoo in 2013, alleging that such treatment constituted the unlawful “take” of these protected grizzly bears in violation of the federal Endangered Species Act. On appeal, in a published opinion, the Fourth Circuit agreed with Davis & Whitlock and held that the District Court’s interpretation of the regulatory definition of “harass” under the Act – and specifically the definition’s exception for captive held wildlife – was legally incorrect, and vacated the District Court’s decision and remanded the case to the District Court for further proceedings consistent with its opinion. This is a landmark decision, not only for the potential it presents for a better future for these four grizzly bears, but also because it is the first time a Circuit Court of Appeals has applied Section 9 of the Endangered Species Act to protected wildlife held in captivity. On behalf of our clients, we look forward to taking the next steps to ensure that these four bears are removed from these outdated pit enclosures and are allowed to live out the rest of their lives in an appropriate natural habitat with meaningful environmental enrichment.
Davis & Whitlock, in conjunction with the Mickel & Chapman law firm out of Conway, Arkansas, has obtained an settlement which will conclude litigation filed against the ExxonMobil Pipeline Company on behalf of residents of Mayflower, Arkansas arising out of the March 29, 2013, rupture of ExxonMobil’s Pegasus Pipeline, which captured national attention. On Good Friday, 2013, the Pegasus Pipeline ruptured in a residential subdivision in Mayflower, causing 5,000 barrels of heavy Canadian Tar Sands crude oil to flow into residents’ yards, under their homes, through the town of Mayflower, and into Lake Conway. The rupture led to the evacuation and permanent displacement of many residents, the presence of toxic petroleum fumes in and around Mayflower for many weeks, and a year long clean-up which transformed much of Mayflower into an industrial work zone. Davis & Whitlock is pleased to announce that the matter was concluded on terms that were satisfactory to the Plaintiffs.
Davis & Whitlock achieved an important settlement in a federal Clean Air Act citizen suit filed on behalf of landowners who reside in close vicinity to Scepter Greeneville Inc.’s secondary aluminum production facility in Midway, Tennessee. The settlement, which was accomplished through a Consent Decree approved by the Department of Justice and the United States District Court for the Eastern District of Tennessee, required that Scepter completely replace the hoods which capture the emissions from the furnaces used in the secondary aluminum production process at the Scepter facility. This will ensure that all emissions from the facility’s operations are properly routed to air pollution control devices prior to being released into the atmosphere. This settlement will result in improved air quality in East Tennessee, and will allow Plaintiffs and others in the vicinity of the Scepter facility to use and enjoy their properties without having to worry about the health concerns associated with the smoke, emissions, and noxious vapors previously emitted by the Scepter facility.