Abraham v. St. Croix Renaissance Group

May 17: In the U.S. Court of Appeals, Third Circuit, Case No. 13-1725. Appealed from the District Court of the Virgin Islands. The St. Croix Renaissance Group, L.L.L.P. (SCRG) sought leave under the Class Action Fairness Act (CAFA), to appeal an order of the District Court of the Virgin Islands remanding a civil action to the Superior Court of the Virgin Islands. The Appeals Court granted SCRG's request saying it concluded, "that the civil action here is not a removable 'mass action' under CAFA. . ." The Appeals Court affirmed the order of the District Court.  

 

    SCRG purchased a former alumina refinery on the south shore of St. Croix in 2002. The plaintiffs alleged that "[f]or about thirty years, an alumina refinery located near thousands of homes on the south shore of the island of St. Croix was owned and/or operated by a number of entities." According to the complaint, the "facility refined a red ore called bauxite into alumina, creating enormous mounds of the by-product, bauxite residue, red mud, or red dust." In addition to these hazardous materials, friable asbestos was present. All of the substances described were dispersed by wind and disseminated as a result of erosion.

 

    The plaintiffs averred that the improper maintenance of the facility, inadequate storage and containment of the various hazardous substances, as well as failure to remediate the premises, caused them to sustain physical injuries, mental anguish, pain and suffering, medical expenses, damage to their property and possessions, loss of income and the capacity to earn income, and loss of the enjoyment of life. On December 7, 2012, the District Court granted the plaintiffs' motion to remand this action to the Superior Court of the Virgin Islands. The Appeals Court noted that the District Court considered several district court decisions that addressed whether an action qualified as a mass action.

 

    The Appeals Court said, "The issue in this case is one of statutory interpretation. We must determine the meaning of the phrase 'an event or occurrence' as it appears in the mass-action exclusion. The Appeals Court indicates, "In short, treating a continuing set of circumstances collectively as an 'event or occurrence' for purposes of the mass-action exclusion is consistent with the ordinary usage of these words, which do not necessarily have a temporal limitation. Giving the words 'event' or 'occurrence' their ordinary meaning is not at odds with the purpose of the statutory scheme of CAFA. . .

 

    "We conclude that the District Court did not err in its interpretation of the "event or occurrence" exclusion in § 1332(d)(11)(B)(ii)(I). Our broad reading of the words "event" and "occurrence" is consistent with their ordinary usage. Further, such a reading does not thwart Congress's intent, which recognized that some aggregate actions are inherently local in nature and better suited to adjudication by a State court. Accordingly, there is no reason to consider the legislative history of the CAFA to interpret the phrase 'event or occurrence' in the mass-action exclusion. . .

    "In light of our determination that the words "event" or "occurrence" in § 1332(d)(11)(B)(ii)(I) should be given their ordinary meaning, we turn to whether the plaintiffs' complaint falls within this exclusion for mass actions. . . We conclude that the complaint sufficiently alleges that all of the plaintiffs' claims arise from "an event or occurrence" in the Virgin Islands where the action was filed and that allegedly resulted in injuries there. . . We agree with the District Court that the complaint was not a removable mass action because "all of the claims in the action arose from an event or occurrence" that happened in the Virgin Islands and that resulted in injuries in the Virgin Islands. Accordingly, the District Court appropriately remanded the plaintiffs' action to the Superior Court of the Virgin Islands. . ."

    Access the complete opinion(click here). [#Toxics, #CA3]

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Center For Food Safety v. Vilsack (USDA)

May 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-15052. Appealed from the United States District Court for the Northern District of California. The panel affirmed the district court's summary judgment in favor of Federal officials and intervenor-defendants, comprised of corporate seed manufacturers and industry trade groups, in an action brought by environmental groups and farmer organizations challenging the Record of Decision issued by the United States Department of Agriculture's (USDA's) Animal Plant and Health Inspection Service (APHIS) unconditionally deregulating Roundup Ready Alfalfa, a plant genetically engineered or modified by the Monsanto Company.

 

    The Appeals Court explains that the appeal represents another chapter in USDA's regulation of Roundup Ready Alfalfa (RRA). RRA is a plant genetically "engineered" or "modified" by the Monsanto Company and Forage Genetics International to be resistant to the herbicide glyphosate, which Monsanto sells under the trade name Roundup. Farmers do not normally apply an herbicide like Roundup to alfalfa fields because the herbicide kills not only the weeds, but also the alfalfa crop. RRA's tolerance to Roundup thus allows farmers to control weeds through herbicide application without harming the alfalfa plant. Monsanto markets RRA and Roundup together as a single crop system. From the outset, Monsanto and Forage Genetics's attempts to introduce RRA have been met with criticism and lawsuits from environmental groups concerned about the adverse effects that the plant may have on the environment and the organic food industry.

 

    Concerned about these environmental harms, the plaintiffs in this appeal argue that APHIS's unconditional deregulation of RRA was improper for three reasons: First, APHIS violated the Plant Protection Act (PPA) and the Administrative Procedure Act (APA) in concluding that RRA was not a plant pest and failing to consider if RRA was a noxious weed; second, because of these errors in statutory interpretation, APHIS violated the Endangered Species Act (ESA) when it failed to consult with the Fish and Wildlife Service (FWS) about RRA's effects on endangered and threatened species; and third, APHIS also violated the National Environmental Policy Act (NEPA) by unconditionally deregulating RRA without considering the option of partially deregulating the crop, an action that the agency had included in the EIS.

 

    After the plaintiffs filed this action against the government in the district court, Monsanto, Forage Genetics, the corporate seed manufacturers and industry trade groups intervened as defendants. The district court upheld the agency's deregulation decision in a published opinion. Ctr. for Food Safety v. Vilsack, 844 F. Supp. 2d 1006 (N.D. Cal. 2012). It held that RRA is not a "plant pest" within the meaning of the statute, and that the agency's deregulation of the plant therefore did not violate the ESA or NEPA, because the agency's jurisdiction did not extend to organisms that are not plant pests.

 

    The Appeals Court affirmed saying, "because the statute does not regulate the types of harms that the plaintiffs complain of, and therefore APHIS correctly concluded that RRA was not a 'plant pest' under the PPA. Once the agency concluded that RRA was not a plant pest, it no longer had jurisdiction to continue regulating the plant. APHIS's lack of jurisdiction over RRA obviated the need for the agency to consult with the FWS under the ESA and to consider alternatives to unconditional deregulation under NEPA. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665 (2007). The district court thus properly entered summary judgment in favor of the defendants."

 

    Access the complete opinion (click here). [#Agriculture, #Toxics, #CA9]

 

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Illinois Union Insurance Co. v. NRG Energy Inc

May 16: In the U.S. Court of Appeals, Fifth Circuit, Case Nos. 12-30651, 12-30877 & 12-30879. Appealed from the United States District Court for the Middle District of Louisiana. The case concerns whether Illinois Union Insurance Company (ILU) has a duty to defend Louisiana Generating LLC (LaGen) in an underlying suit filed against it by U.S. EPA and the Louisiana Department of Environmental Quality (LDEQ) for alleged Clean Air Act (CAA) and state environmental law violations. The district court held that under the insurance policy at issue, there is a duty to defend. The Appeals Court affirmed the district court decision.

    In part, the Appeals Court rules, ". . .the underlying EPA suit includes allegations and prayers for relief that could potentially result in covered remediation costs. Government agencies acting under the authority of environmental laws allege that LaGen violated those laws, resulting in increased emissions of pollutants into the atmosphere, and seek to require LaGen to mitigate and remediate those emissions. The EPA complaint clearly alleges a covered 'pollution condition' at BCII when it asserts that 'significant amounts of NOx and SO2 pollution each year have been, and still are being, released [from BCII] into the atmosphere.' The policy states that ILU 'agrees to pay . . . [c]laims, remediation costs, and associated legal defense expenses' as a result of a pollution condition. 'Claims' and 'remediation costs' are thus two bases for coverage under the policy. In addition, a covered 'claim' includes 'government action(s) . . . alleging responsibility or liability on the part of [LaGen] for. . . remediation costs as a result of' a pollution condition. 'Remediation costs' are thus unquestionably covered, whether they are the relief sought by a claim or whether they are incurred independent of a claim, and ILU agreed to pay 'associated legal defense expenses' with regard to either situation. 'Remediation costs' are defined very broadly to include expenses incurred to redress pollution in compliance with environmental law, including, inter alia, costs associated with investigating, mitigating or abating pollution. . . These requests for mitigation, offsetting and remediation suggest a reasonable possibility of coverage under the policy. . . Because part of the suit is 'potentially within the protection purchased, the insurer is obligated to defend.'"

 

    Access the complete opinion (click here). [#Air, #CA5]

 

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Miccosukee Tribe Of Indians Of Florida v. USA

May 15: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 10-14271. Since 1995, the Miccosukee Tribe of Indians of Florida (Tribe or Miccosukee tribe) has had a running battle with the federal government over the government's management of the Central and Southern Florida Project for Flood Control (C&SF Project) in the Everglades. This case is the most recent chapter. The gist of the four-count complaint the Tribe filed in this case is that the project diverts excessive flood waters over tribal lands -- in part to protect other land owners whose properties are located within the project. The District Court dismissed three of the complaint's counts for failure to state a claim for relief and the fourth on summary judgment. The Tribe appeals these decisions. The Appeals Court affirmed the district court dismissals and judgment. 

 

    The operational area of the C&SF Project is massive, comprising 16,000 square miles. The project stretches from the Kissimmee River Basin, just south of Orlando, to the southern tip of Florida, at Everglades National Park. To aid in administering this vast system, the Corps of Engineers has divided the Everglades into three areas: the Everglades Agricultural Area, the Water Conservation Area, and the Everglades National Park. These areas are contiguous and follow one after another, beginning at Lake Okeechobee and proceeding southward. The appeal involves an alleged clash between the Tribe's rights to use and enjoy these lands and the Corps's operational duties.

 

    In this highly complex case with extensive history, the Appeals Court indicates, "We cannot undertake a review of the District Court's ruling without pausing to comment on the quality of the Tribe's complaint. Most of the complaint's allegations are general and are devoted to description of the Tribe's history, the importance of the Everglades to the livelihood of its members, the evolution and implementation of the C&SF Project, and the injury the members suffer when tribal lands are flooded. The remaining allegations of the complaint are a tangled morass of vague and conclusory statements; thus, the theory of liability that each count asserts is, but for the count's title, difficult to discern. . . We find that the District Court, itself, had difficulty discerning the predicates for the theories of liability asserted. . .

 

    "The Corps should have moved the District Court to order the Tribe to provide it with a "more definite statement" under Federal Rule of Civil Procedure 12(e), but it did not do so. . . because we believe that we can discern enough from the complaint's allegations to dispose of this appeal with confidence." The final decision includes rulings on several individual counts too complicated to adequately explain here.

    Access the complete opinion (click here). [#Water, #CA11]

 

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Ohio Valley Environmental Coalition v. USACE

May 15: In the U.S. Court of Appeals, Fourth Circuit , Case No. 12-1999. Appealed from the United States District Court for the Southern District of West Virginia, at Huntington. The Appeals Court rejects a challenge from environmental groups regarding mountaintop mining.

 

    In connection with a proposed surface coal mine adjacent to Reylas Fork (a stream) in Logan County, West Virginia, the West Virginia Department of Environmental Protection (WVDEP) issued Highland Mining Company a permit under the Surface Mining Control and Reclamation Act (SMCRA) to do the mining, finding that the proposed mine would not cause material damage to the hydrologic regime. The WVDEP also issued a water quality certification under § 401 of the Clean Water Act (CWA), concluding that the proposed mine would not cause or contribute to violations of the State's EPA-approved water quality standards, as well as a National Pollutant Discharge Elimination System (NPDES) permit under CWA § 402, finding that the proposed sediment pond for the mine would not have significant adverse effects. Finally, the U.S. Army Corps of Engineers (USACE, or Corps) issued a fill permit under CWA § 404, authorizing Highland Mining to place rock overburden into the adjacent valley of Reylas Fork as part of the mining process. The Corps issued the permit without an environmental impact statement, finding that the fill would not have a substantial cumulative impact on the water quality in the relevant watershed.

 

    Four environmental groups (collectively, the Environmental Coalition) commenced this action to challenge the fill permit issued under CWA § 404. The Environmental Coalition contends that the Corps, in conducting its analysis for the § 404 permit, "materially misapprehended" the baseline conditions in the relevant watershed, thus corrupting its analysis of the cumulative impact that the mine would have on the streams in the watershed. It also contends that the Corps acted arbitrarily and capriciously in determining that the valley fill would not have a significant cumulative impact on the water quality in the relevant watershed.

 

    The district court evaluated the data considered by the Corps, the Corps' analysis, and the Corps' conclusions and found that the Corps did not misapprehend the baseline conditions in the relevant watershed. Ohio Valley Envtl. Coalition, Inc. v. U.S. Army Corps of Eng'rs (OVEC), 883 F. Supp. 2d 627, 642-44 (S.D. W. Va. 2012). It also found that the Corps analyzed a "wide array of evidence about water quality" to reach a reasoned decision that the individual and cumulative environmental impacts of the Corps' CWA § 404 permit would not rise to the level of significance required to trigger the need for an environmental impact statement. Id. at 645. As the district court concluded, "[t]he Corps has analyzed the cumulative impacts, 'articulated a satisfactory explanation for its conclusion,' and thus has not acted arbitrarily or capriciously." Id. (quoting Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177, 209 (4th Cir. 2009)).

 

    The Appeals Court observed, "The Corps devoted four years to the effort, meeting repeatedly with the parties to resolve concerns, prompting the district court to observe: "The administrative record documents the extensive interaction among the Corps, the EPA, the WVDEP and Highland to resolve the EPA's concerns. Though Highland and the WVDEP disputed the EPA's position on conductivity and cumulative water quality impacts of valley fills, the Corps focused on site specific factors which provide at least a rational basis for its decision." The Appeals Court said, "In response to the EPA's concerns, the Corps adopted measures agreeable to the EPA as conditions of its § 404 permit, involving reduction of the fill and post-permit monitoring and other mitigation requirements. These special conditions incorporated a series of best management practices designed to minimize increases in conductivity and total dissolved solids associated with the mining activities of Highland Mining."

 

    The Appeals Court concludes, "The Corps' predictive judgment in this case was based on facts and recommendations, adduced during a lengthy consultation between the Corps, Highland Mining, the EPA, and the WVDEP, and we conclude that this process satisfies NEPA's procedural requirement to take a 'hard look'. . . Because the Corps' analysis satisfied NEPA's procedural requirements, the Corps' finding of cumulative insignificance is neither arbitrary nor capricious. . . Accordingly, we affirm the judgment of the district court."

 

    Access the complete opinion (click here). [#Energy/Coal, #CA4]

 

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Ned Comer, et al v. Murphy Oil USA, Inc., et al

May 14: In the U.S. Court of Appeals, Fifth Circuit, Case No. 12-60291.Appealed from the United States District Court for the Southern District of Mississippi. A group of Mississippi Gulf Coast residents and property owners (Plaintiffs) alleged that emissions by energy companies (Defendants) contributed to global warming, which intensified Hurricane Katrina, which, in turn, damaged their property. The district court dismissed their claims with prejudice. A panel of Fifth Circuit reversed, in part, the district court's dismissal [See WIMS 10/21/09]. The Appeals Court indicates that before mandate could issue, a majority of the Appeals Court's active, unrecused judges voted for rehearing en banc. After the en banc vote, but before rehearing, an additional judge was recused. The Appeals Court determined that it lacked quorum to proceed, and dismissed the appeal. The Supreme Court denied Plaintiffs' petition for a writ of mandamus.

    The same group of Gulf Coast residents and property owners (Appellants) filed what they concede are essentially several of the same claims, against many of the same energy companies (Appellees), in the same district court. The district court held, among other things, that the doctrine of res judicata barred their claims. The Fifth Circuit affirmed on the basis of res judicata [i.e. A matter that has been adjudicated by a competent court and may not be pursued further by the same parties].

 

    The case involves Plaintiffs alleging that emissions by energy companies (i.e. dozens of major oil and power generating companies) Defendants caused global warming which, increased the "destructive [c]apacity" of Hurricane Katrina, which, in turn, damaged the class members' property. Plaintiffs asserted claims of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy against the companies.

 

    Access the complete opinion (click here). [#Energy, #Climate, #CA5]

 

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Blue Ridge Env. Defense League v. NRC

May 14: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-1106. On Petition for Review of Orders of the United States Nuclear Regulatory Commission (NRC). The case arises from actions taken by the NRC (or Commission) approving (1) an application by Southern Nuclear Operating Company (Southern) for combined licenses to construct and operate new Units 3 and 4 of the Vogtle Nuclear Power Plant; and (2) an application by Westinghouse Electric Company (Westinghouse) for an amendment to its already-approved AP1000 reactor design on which the Vogtle application relied. In approving the applications, NRC applied the regulatory scheme incorporated in 10 C.F.R. Part 52 covering the licensing of commercial nuclear power reactors. See Nuclear Info. Res. Serv. v. NRC, 969 F.2d 1169, 1170 (D.C. Cir. 1992) (en banc) (upholding two-part regulatory scheme in 10 C.F.R. Part 52). Among other assertions, the petitioners argued that the EIS violated NEPA because it did not address allegedly new and significant environmental implications of the Task Force's recommendations after Japanese Fukushima nuclear accident. The Appeals Court did not find merit in this or any of the contentions and denied the petitions for review.

 

    Explaining further, the Appeals Court indicates that in 2009, after a contested evidentiary hearing in which Petitioners participated, NRC granted Southern an early site permit for Vogtle Units 3 and 4. In 2008, Southern applied for combined licenses. A second contested proceeding was held in which Petitioners participated. The application for the early site permit was supported by an Environmental Impact Statement (EIS); the application for combined licenses was supported by the initial EIS and an updated EIS. After the close of the combined-license hearing record, Petitioners sought to reopen the hearing to litigate contentions relating to the nuclear accident at the Fukushima Dai-ichi complex in Japan on March 11, 2011. In the wake of the Fukushima accident, NRC commissioned a Task Force to reevaluate nuclear safety regulations in the United States. Petitioners unsuccessfully sought to forestall the licensing of the Vogtle reactors and the approval of the modified AP1000 design until NRC had fully considered and implemented the Task Force recommendations.

    After the Task Force recommendations were issued and approved by NRC, Petitioners pursued various actions to compel the agency to supplement its EIS and to delay any action on the combined license and AP1000 design rulemaking proceedings until after the agency had implemented the Task Force recommendations. Petitioners contended, inter alia, that Vogtle's EIS violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, because it did not address allegedly new and significant environmental implications of the Task Force's recommendations after Fukushima. NRC ruled that Petitioners' challenges were premature, that the agency's existing procedural mechanisms were sufficient to ensure licensees' compliance with not-yet-enacted regulatory safeguards, and that the licensing and rulemaking proceedings could continue without delay. NRC further held that Petitioners had failed to satisfy the contention-specificity requirements of 10 C.F.R. § 2.309(f)(1), which state that the proponents of contentions must indicate with specificity the claims they wish to litigate. See Union of Concerned Scientists v. NRC, 920 F.2d 50, 51-52 (D.C. Cir. 1990). NRC also held that Petitioners had failed to identify any environmentally significant information from the Task Force recommendations suggesting a deficiency in the Vogtle EIS. NRC thus declined to reopen the combined-license hearing record under 10 C.F.R. § 2.326.

    In late 2011, NRC issued its rule approving the AP1000 amended design, and in 2012 it authorized issuance of the combined licenses. Petitioners then filed the petitions for review giving rise to this action. Petitioners raise three principal contentions for consideration by the court. First, Petitioners claim that NRC abused its discretion in refusing to reopen the hearing record in the Vogtle licensing proceeding. Second, Petitioners assert that NRC unreasonably denied them a right to participate in a mandatory hearing at which NRC technical staff confirmed that the Fukushima accident had not presented new and significant information that would require a supplemental EIS for Vogtle. Finally, Petitioners argue that NRC abused its discretion in approving the AP1000 reactor design without first supplementing the AP1000 Environmental Assessment (EA) that contained important information regarding "Severe Accident Mitigation Design Alternatives" applicable to Vogtle.

    The Appeals Court concluded, "Petitioners have failed to demonstrate that NRC acted less than reasonably in declining to order a supplemental EA for the AP1000 design certification amendment. We therefore defer to the Commission's conclusion that such a supplement was unnecessary. . . the petition for review is denied." [#Energy/Nuclear, #CADC]

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