WIMS. . . December 24, 2008

 

HAPPY HOLIDAYS!

 

From WIMS

 

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We wish you a happy Holiday Season!

Sierra Club v. EPA

Dec 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 02-1135. The case was consolidated with Nos. 03-1219, 06-1215, 07-1201, and the American Chemistry Council intervened on behalf of EPA. Petitioners challenged the final rules promulgated by U.S. EPA exempting major sources of air pollution from normal emission standards during periods of "startups, shutdowns, and malfunctions" (SSM) and imposing alternative, and "arguably less onerous requirements in their place."

The 2-1 majority Appeals Court said, "Because the general duty that applies during SSM events is inconsistent with the plain text of section 112 of the Clean Air Act (CAA), even accepting that 'continuous' for purposes of the definition of 'emission standards' under CAA section 302(k) does not mean 'unchanging,' the SSM exemption violates the CAA’s requirement that some section 112 standard apply continuously. Accordingly, we grant the petitions and vacate the SSM exemption."

In a final rule adopted in 2003, EPA “decided instead to adopt a less burdensome approach,” to the SSM regulation requiring members of the public to make a “specific and reasonable request” of the permitting authority to request the SSM plan from the source and thus making it more difficult to access and obtain. The Sierra Club challenged the 2003 Rule in a petition for review. The Natural Resources Defense Council (NRDC) also filed a petition for reconsideration on the ground that any limitation on the public availability of the SSM plans was unlawful. EPA agreed to take comment on the new SSM provisions, and the consolidated cases were held in abeyance pending reconsideration.

In 2006, EPA retracted the requirement that sources implement their SSM plans during SSM periods; and instead comply with the "general duty to minimize emissions.” EPA required a "post-event reporting" and eliminated the requirement that the Administrator obtain a copy of a source’s SSM plan upon request from a member of the public and determined that the public may only access those SSM plans obtained by a permitting authority; but the permitting authority was not "required to do so" -- it was discretionary.

The petitioners, petitioned for reconsideration and contended that the exemption from compliance with emissions standards during SSM events is both unlawful and arbitrary, and that the 2002, 2003, and 2006 rules unlawfully and arbitrarily fail to 'assure compliance' with 'applicable requirements' under Title V.

The majority Appeals Court ruled, "In sum, petitioners’ challenge to the exemption of major sources from normal emission standards during SSM is premised on a rejection of EPA’s claim of retained discretion in the face of the plain text of section 112. 'Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent'. NRDC, 489 F.3d at 1374 (quoting TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)). The 1990 Amendments confined the Administrator’s discretion, see New Jersey, 517 F.3d at 578, and Congress was explicit when and under what circumstances it wished to allow for such discretion, id. at 582. 'EPA may not construe [a] statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.' New Jersey, 517 F.3d at 583 (quoting Whitman, 531 U.S. at 485). Accordingly, we grant the petitions without reaching petitioners’ other contentions, and we vacate the SSM exemption. See New Jersey, 517 F.3d at 583 (citing Allied Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)).

The minority, dissenting opinion indicated, "I do not agree that we have jurisdiction over Sierra Club’s petition for judicial review. The original regulations at issue. . . exempt periods of startup, shutdown, and malfunction from opacity and non-opacity emission standards. When EPA promulgated these regulations in 1994, Sierra Club took no legal action. Yet under the Clean Air Act a petition for judicial review of an EPA regulation must be filed within 60 days of the regulation’s publication in the Federal Register. . ."

Access the complete opinion and dissent (click here).

Town of Marshfield v. Federal Aviation Administration

Dec 18: In the U.S. Court of Appeals, First Circuit, Case No. 07-2820. The Federal Aviation Administration (FAA) has authority to prescribe aircraft approach and departure patterns in order to minimize noise and ensure safety. In 2002, the agency approved a change in the runway layout of Logan Airport in Boston to include a new runway and, at the same time, began a study of improved noise abatement measures. The outcome was the "Boston Overflight Noise Study" (BONS), conducted with advice and participation by various organizations.

In implementing BONS, FAA adopted some of the report's "phase I" measures for the rerouting of aircraft to increase use of Logan approaches and departures over the ocean with shoreline crossings at higher altitudes. In finding that these measures required no environmental assessment (EA) or environmental impact statement (EIS), the FAA relied upon noise studies to measure the impact on surrounding communities. The Town of Marshfield, MA, opposed the new phase 1 measures, arguing that the new flight patterns would adversely affect its residents and sought review of the FAA's decision claiming violations of the National Environmental Policy Act (NEPA), the Federal Advisory Committee Act (FACA), and the FAA's own rules.

In analyzing the NEPA issues and denying the petition for review, the Appeals Court determined that FAA's noise exposure finding "is adequately based." Additionally, the Appeals Court said, "Marshfield seems to assert that an EA or EIS was required so long as the phase 1 measures were 'highly controversial,' which it regards as covering any introduction of new noise over inhabited areas and with opposition by a town or city. Although FAA Order 10501.1E, para. 304, uses the phrase 'highly controversial,' it makes clear that controversy is not decisive but is merely to be weighed in deciding what documents to prepare."

Access the complete opinion (click here).

Salmon Spawning & Recovery Alliance v. US Customs & Border

Dec 18: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-1444. This case concerns the Endangered Species Act (ESA) and the scope of the jurisdiction of the United States Court of International Trade. Plaintiffs-Appellants Salmon Spawning and Recovery Alliance, et al (collectively Salmon Spawning) appeal a final judgment of the Court of International Trade dismissing their complaint against various Federal agencies and officials for lack of subject matter jurisdiction.

On July 15, 2008, the Federal Circuit issued a decision [See WIMS 7/18/08] in which it concluded that the Court of International Trade erred in dismissing the case for lack of standing and remanded to the court to determine in the first instance whether plaintiffs’ claim under section 7(a)(2) of the ESA falls within the exclusive jurisdiction of the Court of International Trade. Salmon Spawning & Recovery Alliance v. United States, 532 F.3d 1338 (Fed. Cir. 2008). On August 29, 2008, defendants filed a petition for rehearing for the limited purpose of reconsidering statements made in this court’s original opinion regarding whether the Court of International Trade may exercise “supplemental” jurisdiction pursuant to 28 U.S.C. § 1367(a).

In response Salmon Spawning elected to take no position on the issue presented by the petition. All parties agreed that the relief requested by the petition would not alter the outcome of the appeal. The Appeals Court granted the petition solely to issue a revised opinion. The previous opinion was withdrawn. In its revised opinion the Appeals Court ruled, "the Court of International Trade’s dismissal of plaintiffs’ section 9 claim is affirmed. The court’s dismissal of the section 7 claim for lack of standing is reversed, and the case is remanded to the Court of International Trade to determine whether the surviving claim falls within its exclusive jurisdiction."

Access the complete opinion (click here).

NC Fisheries Association v. Gutierrez (Commerce Dept.)

Dec 16: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5389. Appellants are the North Carolina Fisheries Association, Inc., two commercial fishermen, and a fish-packing plant (collectively, the Association). They filed a complaint (petition for review) in district court against the Department of Commerce, claiming that Amendment 13C to the Fishery Management Plan for South Atlantic Snapper Grouper violated the Magnuson-Stevens Fishery Conservation and Management Act (Act).

The district court granted in part and denied in part the Association’s motion for summary judgment. The court held that the Department had not complied with its statutory obligation to promulgate a rebuilding plan for certain fish species following a determination that such species were “overfished,” which failure the Government had conceded. The court then ordered that the parties confer on an appropriate remedy and submit a joint proposal or, should disagreement persist, separate proposals. Because the parties were unable to reach agreement, the district court adopted the Government’s proposal with slight adjustments to the suggested timetable. The appeal was filed and the Appeals Court concluded that it lacked jurisdiction and therefore, dismissed the appeal.

The Appeals Court said, "It does seem rather peculiar -- perhaps even a bit fishy -- that the Service promulgated Amendment 15A without accompanying regulations, indeed, without any “regulatory effect.” Recall that the Service acknowledged that it had violated the Act (which was rather obvious) by omitting a rebuilding plan; thus, it could be thought that the Service is continuing to evade its statutory obligations by failing to put teeth into the rebuilding plan. But if the Association thought that the Service had not complied in substance with the district court’s mandate, it should have sought direct relief in the district court. In any event, we lack jurisdiction at this stage in the proceedings. The case is dismissed."

Access the complete opinion (click here).

League of Wilderness Defenders v. US Forest Service

Dec 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35780. In their suit under the Administrative Procedures Act (APA), the League of Wilderness and a number of environmental groups (collectively, LOWD) sought declaratory and injunctive relief to halt the Deep Creek Vegetation Management Project (the Project), which called for the selective logging of 12.8 million board feet of timber in the Ochoco National Forest. LOWD claims in its suit that the United States Forest Service (Forest Service) failed to comply with the National Environmental Policy Act (NEPA), and the National Forest Management Act (NFMA), in developing and implementing the Project.

The district court denied LOWD’s motion for summary judgment and granted the Forest Service’s cross-motion for summary judgment. The Appeals Court ruled, "Because the Final Supplemental Environmental Impact Statement (FSEIS) may not tier to a non-NEPA watershed analysis to consider adequately the aggregate cumulative effects of past timber sales, we reverse the district court’s grant of summary judgment in favor of the Forest Service, and we remand this case so the Forest Service can reissue its NEPA documentation to include the omitted information regarding past timber sales contained in the watershed analysis."

In its conclusion the Appeals Court said, "The Forest Service’s approval of the Project violates NEPA because the FSEIS may not tier to the non-NEPA Watershed Analysis to consider adequately the aggregate cumulative effects of past timber sales. We reverse the district court’s grant of summary judgment in favor of the Forest Service, and we remand this case so the agency can reissue its NEPA documentation to include the omitted information regarding past timber sales contained in the Watershed Analysis. Each party shall bear its own costs on appeal."

Access the complete opinion (click here).

Oregon Natural Desert Association v. US Forest Service

Dec 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35205. Plaintiffs-Appellants, Oregon Natural Desert Association, and a number of other environmental organizations (collectively ONDA), sued Defendant-Appellee, the United States Forest Service (Forest Service), for allegedly failing to comply with § 401 of the Clean Water Act (CWA, or Act) in its issuance of grazing permits on Forest Service lands. ONDA specifically argued that the outcome and reasoning of S.D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006) [See WIMS 5/15/06], are clearly irreconcilable with the Ninth Circuit's reasoning in Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092 (9th Cir. 1998), and that Dombeck is, therefore, no longer controlling law.

The Forest Service moved for judgment on the pleadings pursuant to Federal Rules of Civil Procedure 12(c). The matter was referred to a magistrate judge, who made Findings and Recommendations suggesting that the district court grant the motion for judgment on the pleadings on the ground that ONDA’s claim was barred by the doctrine of collateral estoppel [issue preclusion, or doctrine preventing a person from relitigating an issue]. The district court adopted the Findings and Recommendations and granted the motion for judgment on the pleadings. The appeal followed and the Appeals Court affirmed the decision of the district court.

However, the Appeals Court said, "Because we conclude that the principles of stare decisis [legal doctrine providing that courts should adhere to the legal principles established by courts deciding similar cases] control all of the plaintiffs in this case, we need not reach the issues of collateral estoppel and virtual representation. Whether or not the individual Plaintiffs-Appellants in this case were participants in the earlier trial, they are bound by Dombeck as a matter of law. Accordingly, the district court’s grant of the Forest Service’s motion for judgment on the pleadings as to all Plaintiffs-Appellants is affirmed."

Access the complete opinion (click here). Access the complete S.D. Warren Co. opinion (click here).

Sierra Club v. Franklin County Power

Oct 27: In the U.S. Court of Appeals, Seventh Circuit, Case No. 06-4045. As explained by the Appeals Court, Franklin County Power of Illinois, LLC, wanted to build a 600 megawatt coal-fired power plant in Benton, in southern Illinois. Because the plant will emit a significant amount of air pollution, the Company must first obtain a “Prevention of Significant Deterioration” (PSD) permit from the Illinois Environmental Protection Agency (IEPA), the agency that the federal EPA has designated as the issuer of PSD permits in Illinois. Although the IEPA granted the Company a PSD permit in 2001, the IEPA has since made a “preliminary determination” that the permit has expired.

Sierra Club, a non-profit environmental organization sought to enjoin the Company from building the power plant by bringing suit against the Company, its parent company EnviroPower, LLC, and Khanjee Holding (US), Inc., under a citizen suit provision of the Clean Air Act. Sierra Club alleged that the Company’s 2001 PSD permit had expired because the Company had neglected to “commence construction” of the plant within an 18-month window required under the permit.

Sierra Club also claimed the permit was invalid under EPA regulations because the Company had discontinued construction of the plant for over 18 months. The district court agreed with Sierra Club on both points and granted summary judgment in its favor. The court also permanently enjoined the Company from building the plant until it obtained a new PSD permit, and the defendants appealed the decision.

The Appeals Court said, "We agree with the district court that Sierra Club has standing to pursue this lawsuit and that its claim is ripe and permissible under the Clean Air Act. We also agree that the 2001 PSD permit has expired and that the district court properly granted permanent injunctive relief in favor of Sierra Club. Therefore, we affirm the district court’s grant of summary judgment in favor of Sierra Club."

Further explaining its ruling, the Appeals Court said, ". . . the record here demonstrates that the four injunctive relief factors favor Sierra Club. First, Sierra Club will likely suffer irreparable injury if the Company builds under its expired PSD permit rather than a new permit because the former likely includes more relaxed emission standards. . . Second, legal remedies will not adequately address Sierra Club’s injury. The record shows that at least one Sierra Club member will likely suffer a decrease in recreational and aesthetic enjoyment of Rend Lake if the plant is built according to the 2001 permit. An economic award would not sufficiently compensate for this injury. . . Third, the balance of harms favors issuing an injunction. An injunction protects Sierra Club from irreparable injury while simply requiring the Company to defer construction until it obtains a permit that complies with the Clean Air Act. Finally, the record contains no evidence that the injunction harms the public interest. In fact, based on the record before us, we agree with Sierra Club that requiring the Company to obtain a valid PSD permit would likely result in decreased emissions and improved public health, which would further a stated goal of the Clean Air Act. . ."

Access the complete opinion (click here). [Please Note: The 7th circuit has a strange temporary web hyperlink nomenclature system. If the previous link does not work click on this link and enter the case number above (click here).]

Fitzgerald v. Harris

Dec 5: In the U.S. Court of Appeals, First Circuit, Case No. 08-1306. The case raises the issue of whether a Maine statute governing the management of a state administered river, the Allagash Wilderness Waterway (AWW) is preempted by certain sections of a Federal statute, the Wild and Scenic Rivers Act (WSRA). Plaintiffs Charles FitzGerald and Kenneth Cline (collectively FitzGerald) are avid canoeists who sued Willard R.Harris, Director of the Maine Bureau of Parks and Lands, seeking a declaration that the Maine statute is preempted by Federal law, as well as injunctive relief against the enforcement of the Maine statute.

According to the Appeals Court, the Plaintiffs essential complaint is that the provisions of Maine's statute maintaining certain bridges and public access points to the AWW destroy the "wild" character of the river. The Appeals Court said, "There have been, to our knowledge, no prior federal courts of appeals decisions squarely involving claims of preemption of state statutes by the WSRA, which was enacted in 1968." The district court granted Harris's motion to dismiss under Fed. R. Civ. P. 12(b)(6), adopting a magistrate judge's recommended decision holding that the Maine statute is not preempted by federal law. The Appeals Court affirmed the district court dismissal.

In part, the Appeals Court said, "Because both the NPS [National Park Service] and the ACE [Army Corps of Engineers] approved Maine's plans for the Henderson Brook Bridge, it cannot be said that the Maine statute authorizing the permanent bridges over the AWW is preempted by federal agency action."

Access the complete opinion (click here).

South Carolina Wildlife Federation v. Limehouse

Dec 5: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1431. The South Carolina Wildlife Federation and co-plaintiffs (collectively SCWF) brought suit against Federal and state agencies and agency directors, alleging violations of the National Environmental Policy Act (NEPA), arising from the proposed construction of the Briggs-DeLaine-Pearson Connector (the Connector) in South Carolina.

The Appeals Court notes that relevant to the appeal, the Director of the South Carolina Department of Transportation (the Director), who was sued in his official capacity, moved to dismiss the case on the ground that the claims against him were barred by sovereign immunity under the Eleventh Amendment. The district court denied the Director’s motion, and he filed this interlocutory appeal. The Appeals Court affirmed the district court decision.

In its analysis, the Appeals Court said, "We conclude SCWF alleged facts sufficient to survive a motion to dismiss for lack of standing. SCWF asserted that construction of the Connector would harm its members’ ability to use and enjoy the relevant area for a variety of educational, scientific, recreational, and aesthetic purposes, and that one or more of its members currently use the land for such purposes." The Appeals Court also said that SCWF has shown that enjoining the Director from proceeding with the construction of the Connector, and requiring the reexamination of the proposal in accordance with NEPA, would redress its procedural and substantive concerns."

The Appeals Court cited the now famous, historic global warming Supreme Court case Massachusetts v. EPA, 127 S.Ct. 1438, 1453 (2007) [See WIMS 4/2/07] saying, "the redressability of an injury to a procedural right turns on the potential impact of the court’s action on the injury-causing party. Massachusetts v. EPA, 127 S.Ct. 1438, 1453 (2007) (requiring that a litigant seeking to vindicate a procedural right show 'some possibility that the requested relief will prompt the injury-causing party to reconsider' the decision). The Appeals Court concluded, "The district court properly found that SCWF stated a cause of action for prospective relief under NEPA and that the Director was party to the suit. Accordingly, we affirm the order of the district court."

Access the complete opinion (click here).

USA v. Hagerman

Dec 5: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 07-3874, 07-3875. The defendants, Wabash Environmental Technologies, LLC, and its president, Hagerman, were convicted of making false statements in violation of the Clean Water Act, and they appeal. The Appeals Court rules, "We affirm the judgments in an unpublished order issued today, and limit this opinion to a threshold issue that happens to be the single point of novelty in the appeals.

The Appeals Court notes that in previous appeals by these parties in a related civil case, it ruled that a limited liability company (which Wabash is), like a corporation, cannot litigate in a Federal court unless it is represented by a lawyer. United States v. Hagerman, 545 F.3d 579, 581-82 (7th Cir. 2008) [See WIMS 9/30/08].

The Appeals Court explains that in the present case Wabash was represented by a lawyer both in the district court and in Seventh Circuit. The lawyer filed both an opening brief and a reply brief on behalf of the company. But then Hagerman fired the lawyer, who moved the Court for leave to withdraw from the case, which it granted. The Appeals Court says, "The question is whether, even though Wabash’s appeal has been fully briefed, we should dismiss it because Wabash is no longer represented and, not being a natural person, cannot litigate in federal court unless it is represented. We cannot find a case that has addressed this issue."

In affirming the district court decision, the Appeals Court concludes, "We have thought it best. . . to affirm the judgment of the district court in order to lay to rest any doubt about the company’s guilt. But it bears emphasis that at any point in a federal litigation at which a party that is not entitled to proceed pro se finds itself without a lawyer though given a reasonable opportunity to obtain one, the court is empowered to bar the party from further participation in the litigation."

Access the complete opinion (click here). [Please Note: The 7th circuit has a strange temporary web hyperlink nomenclature system. If the previous link does not work click on this link and enter the case number above (click here).]

Black Warrior Riverkeeper v. Cherokee Mining

Nov 13: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-10810. The Appeals Court explained that Black Warrior Riverkeeper (Black Warrior) is a non-profit membership organization that supports enforcement of environmental laws for the preservation, protection, and defense of the Black Warrior River located in Alabama. Cherokee Mining, LLC (Cherokee) is the owner and operator of two surface coal mines located in northern Alabama. Black Warrior sued Cherokee alleging that it had violated the Federal Water Pollution Control Act (the Clean Water Act) and similar provisions of Alabama law.

Cherokee moved to dismiss, arguing that Black Warrior’s suit was barred by a provision of the Clean Water Act, § 1319(g)(6)(A)(ii) [precludes citizen suits when a state agency has commenced and is diligently prosecuting an administrative enforcement action against a polluter], and thus should be dismissed for lack of subject matter jurisdiction. The district court denied the motion, concluding that another provision of the Clean Water Act, § 1319(g)(6)(B)(ii) [i.e. notice of intent to sue was given to Cherokee prior to the State of Alabama’s commencement of its enforcement action], lifted the bar that would otherwise have precluded Black Warrior’s suit.

The Appeals Court said, "We find Cherokee’s interpretation of these provisions to be an extremely cramped and narrow reading of the ordinary and plain meaning of the relevant language. . . We thus find that the plain meaning of the phrase 'limitations contained in subparagraph (A). . . shall not apply [to bar citizen suits] means that citizen suits are not barred when either the federal EPA or a state is pursuing an administrative enforcement action and the notice and filing requirements of § 1319(g)(6)(B) have been met."

The Appeals Court clarifies further in affirming the district court decision, "We conclude that, in accordance with the plain and ordinary meaning of §1319(g)(6)(B), all of the limitations against a citizen suit as provided for in §1319(g)(6)(A), which include federal and state administrative enforcement actions, are lifted so long as § 1319(g)(6)(B)’s notice and filing requirements are met."

Access the complete opinion (click here).

Fednav et al., v. Steven E. Chester (MI DEQ)

Nov 21: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-2083. In the case of Fednav et al., v. Steven E. Chester, et al, the Appeals Court unanimously upheld the U.S. District Court, Eastern District, Southern Division decision of Judge John Feikens [Case No. 07-11116, See WIMS 8/16/07] that ruled that Michigan's Ballast Water Statute, Mich. Comp. Laws § 324.3112(6), is constitutional. The case challenging the Michigan law was brought by nine shipping companies and associations. Defendants in the case were Michigan Department of Environmental Quality (MDEQ) Director Steven Chester and Michigan Attorney General Mike Cox. Four environmental and conservation organizations intervened in the case supporting the State's position including: Michigan United Conservation Clubs (MUCC); Alliance for the Great Lakes (Alliance); National Wildlife Federation (NWF); and Natural Resources Defense Council (NRDC).

In summary, the Appeals Court said, "We hold that Plaintiffs lack standing to challenge one portion of the statute, and reject their arguments as to its remainder. We therefore affirm." The Appeals Court summarized the Federal regulations that exist and why Michigan felt compelled to adopt its own, separate law. The Court said, ". . . to summarize, the Coast Guard’s ballast-water regulations applicable to the Great Lakes have remained essentially unchanged since 1993. Vessels entering the Great Lakes carrying ballast water from outside the EEZ [exclusive economic zone] must either conduct a mid-ocean ballast-water exchange before discharging ballast water into the Great Lakes, or retain their ballast water. NOBOB [No Ballast On Board] vessels are essentially unregulated with respect to their ballast-water practices. They are thus free to take on ballast water in the Great Lakes, mix it with any sediment or residual water in their tanks, and then discharge the mixture into the Great Lakes."

The Appeals Court explains the argument of the Plaintiffs saying, "Each of these Plaintiffs seeks, in this Court at least, to challenge two distinct provisions of the Michigan Ballast Water Statute. First, they challenge the statute’s requirement that all 'oceangoing vessels engaging in port operations in' Michigan obtain a permit (the 'permit requirement'). Mich. Comp. Laws § 324.3112(6). Second, they challenge the requirement -- applicable only to oceangoing vessels that discharge ballast water in Michigan -- that they employ a treatment system approved by the MDEQ as a safe and effective means of preventing the discharge of ANS (the 'treatment requirement')."

Plaintiffs include four shipping companies: Fednav, Limited, Canadian Forest Navigation Company, Limited, Baffin Investments, Limited, and Canfornav, Incorporated (the “Shipping Companies”). They include three shipping associations: the Shipping Federation of Canada, the Seaway Great Lakes Trade Association, and the United States Great Lakes Shipping Association (the “Shipping Associations”). They also include a port terminal, Nicholson Terminal and Dock Company (“Nicholson”), and a port association, The American Great Lakes Ports Association (the “Ports Association”).

The Appeals Court then considers whether each of the Plaintiffs has standing to challenge each of these requirements, i.e. the permit requirement and the treatment requirement. The Appeals Court determines that the Shipping Companies and each of the Shipping Associations has standing to challenge the permit requirement, but Nicholson and the Ports Association do not.

On the treatment requirement, the Court says, "'virtually all' of Plaintiffs’ ships do not discharge ballast water in Michigan. And to the extent that Plaintiffs do not so discharge, they are not even subject to the treatment requirement, much less harmed by it. . . And none of them have remotely alleged that they have taken any action, much less an injurious one, in compliance with the treatment requirement. The complaint is conspicuously silent on that point. Second, and more fundamentally, we simply will not strain to construe the complaint to say by negative implication what it very simply could have said directly. . . We instead hold fast to the 'longsettled principle that standing cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record.'”

Thus the Appeals Court determines that, "The only claims over which we have jurisdiction, then, are those of the Shipping Companies and the Shipping Associations (hereinafter, 'Plaintiffs') with respect to the permit requirement." The Appeals Court conducts a rigorous analysis of preemption issues and determines that, ". . . we know that Congress contemplated ANS [aquatic nuisance species] prevention measures 'in the Great Lakes region that are not conducted pursuant to this chapter.' Id. § 4723(a)(1)(D) (emphasis added). That leaves only the question whether the reference to ANS prevention measures 'not conducted pursuant to this chapter' includes measures conducted by the states. For several reasons, we believe that it does. . . The permit requirement does not conflict with NISA [National Invasive Species Act of 1996] or the Coast Guard’s regulations promulgated pursuant to it. The requirement therefore is not preempted by federal law."

The Court also rejects a claim by Plaintiffs that the Michigan law violates the so-called “dormant” Commerce Clause by burdening interstate commerce and a "due process" claim and concludes, "Michigan, for undisputedly legitimate reasons, has enacted legislation of a type expressly contemplated by Congress. We have no basis to disrupt the result of those democratic processes. The August 15, 2007 order of the district court is affirmed."

Alliance vice president for policy, Joel Brammeier, praised the court's ruling saying, “We’re pleased with this confirmation of the states’ authority to protect the Great Lakes from invaders. While the federal government spent 2008 sitting on its hands, this decision reinforces the only real line of defense we have right now -- state action to shield the Great Lakes from these biological threats.”

Access the Appeals Court decision (click here). Access the complete 32-page district court opinion (click here). Access MDEQ's Ballast Water Reporting website for extensive information (click here). Access legislative details for PA 33 of 2005 (click here). Access a release from the Alliance (click here). Access various media reports on the decision (click here).

Alaska Wilderness v. Kempthorne

Nov 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-71457, 07-71989, and 07-72183. The petitioners are six organizations that support environmental conservation, indigenous communities, and wildlife populations of Northern Alaska. They challenge the Minerals Management Service’s (MMS) approval of an exploration plan submitted by Shell Offshore Inc. (Shell). Shell seeks to drill multiple offshore exploratory oil wells over a three-year period in the Alaskan Beaufort Sea.

Petitioners challenge the agency’s action under the National Environmental Policy Act (NEPA), and the Outer Continental Shelf Lands Act (OCSLA). Petitioners allege that MMS failed to take the requisite “hard look” at the impact of drilling on the people and wildlife of the Beaufort Sea region in violation of the standards set forth by NEPA, OCSLA, and their implementing regulations. Petitioners also argue that MMS erred by failing to prepare an environmental impact statement (EIS) for the proposed exploration activities, because of the potential for significant harmful effects on the environment.

The Appeals Court, in a split 2-1 decision vacated the Agency’s approval of Shell’s exploration plan, and remanded the case so that MMS can conduct the “hard look” analysis required by NEPA. The Appeals Court said MMS must prepare a revised EA "or, as necessary, an EIS."

In part, the majority said, ". . . having specific information about well locations is critical to the agency’s ability to analyze the project’s environmental effects. MMS acted in contravention of the regulations by approving Shell’s three-year plan without
determining the locations of the wells that would be drilled in that period. In order to comply with the regulations, the agency needs to consider the location of the proposed wells before it can approve the project for all three years."

Access the complete opinion and dissent (click here).

McDonald v. Sun Oil Co.

Nov 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35683. Thomas McDonald, Marian McDonald and Alex McDonald appeal from the district court’s grant of summary judgment in favor of Sun Oil Company, Sunoco, Inc. and Cordero Mining Company (collectively, Sun). The McDonalds sued Sun for, among other things, negligence, contribution, breach of contract and fraud. Each of the claims arose out of an alleged oral warranty that certain crushed rock at the Horse Heaven Mine Property (Horse Heaven), a disused mercury mine, was free of mercury.

The district court held that Oregon’s statute of repose barred the McDonalds’ negligence claim, that their claim for contribution failed to comply with an administrative requirement, that their breach of contract claim failed because of the merger doctrine and the parol evidence rule, and that their fraud claim failed to raise a genuine issue of material fact. The Appeals Court affirmed in part, reversed in part, and remanded for trial.

The Appeals Court concluded, "The district court erred in granting summary judgment to Sun on the McDonalds’ negligence claim and that claim is remanded for trial. The district court correctly concluded that summary judgment was proper on the McDonalds’ contribution, breach of contract and fraud claim." In explaining the negligence ruling the Appeals Court said, "
the negligence claim is not based on any alleged promise to provide mercury-free calcine, but rather on alleged failures to warn about the mercury in the calcine and to test the calcine. A jury could find that there was no oral agreement, but that Sun was negligent in failing to warn that, for example, the calcine was not tested. The negligence claim should not have been dismissed."

Access the complete opinion (click here).

Romoland School District v. Inland Empire Energy

Nov 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-56632. The Romoland School District and several individuals and environmental groups, (collectively, Plaintiffs) appeal the denial of their motion for a preliminary injunction and the dismissal with prejudice of their two claims against Inland Empire Energy Center (IEEC), a wholly-owned subsidiary of General Electric Company. Plaintiffs brought suit against IEEC under the citizen suit provision of the Clean Air Act (CAA), in connection with IEEC’s plans to construct an 810-megawatt power plant approximately 1,100 feet from the Romoland Elementary School in Riverside County, California.

IEEC’s motion to dismiss contended, among other things, that the district court lacked jurisdiction over the suit because IEEC had been granted a permit under Title V of the CAA and such permits may not be challenged in civil or criminal enforcement proceedings in federal district court. Plaintiffs also included as a defendant in their CAA action the South Coast Air Quality Management District (SCAQMD), the local air pollution control agency that issued the relevant permit and authorized IEEC to
begin construction of the power plant.

The Ninth Circuit said, "We must resolve two threshold issues of jurisdiction before we may consider the merits of Plaintiffs’ claims: (1) whether the district court’s dismissals of the claims in this case present us with a final decision pursuant to 28 U.S.C. § 1291; and (2) whether the Central District of California was an appropriate forum, and 42 U.S.C. § 7604 an appropriate statutory basis, for Plaintiffs’ challenge such that the district court had jurisdiction over it pursuant to 28 U.S.C. § 1331."

The Appeals Court said, "We conclude that the orders appealed from are part of a final judgment and thus that we have jurisdiction over this case, but that the district court did not. Accordingly, we affirm the district court’s dismissal of the claims against IEEC with prejudice, hold that the claims against the air district should also be deemed to be dismissed with prejudice notwithstanding the voluntary dismissal order’s silence on this point, and further hold that all proceedings on Plaintiffs’ motion for a preliminary injunction are void because the district court was without jurisdiction to entertain that motion."

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Wildwest Institute v. Bull

Nov 6: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35044. The Appeals Court indicates that in this case it must decide whether the United States Forest Service complied with federal environmental law in its management of the Bitterroot National Forest in Montana. The case involves the Forest Service plan for deal with unburned fuels remaining in the area following a wildfire in the Forest in the summer of 2000, making the area a high-risk area for future wildfires.

The Forest Service considered: (1) a no-action alternative (“Alternative 1”); (2) its preferred alternative (“Alternative 2”); and (3) an alternative proposed by The Ecology Center and Native Forest Network (now known as the WildWest Institute), Friends of the Bitterroot, and the National Forest Protection Alliance (“Alternative 3”).

Specifically, WildWest asserts the Forest Service committed procedural violations by (1) irretrievably committing resources in favor of its preferred alternative before making its final decision, (2) failing to engage in adequate public collaboration, and (3) ignoring competing scientific views. Substantively, WildWest challenges the Project’s impact on soil productivity, old growth habitat, species viability, and watershed sedimentation. Along with its complaint, WildWest moved for a temporary restraining order and preliminary injunction, primarily relying on its three procedural claims. The district court denied the motion, concluding in part that WildWest had made an insufficient showing that it was likely to prevail on the merits of such claims. The Appeals Court affirmed that motion [WildWest Inst. v. Bull, 472 F.3d 587 (9th Cir. 2006)].

Thereafter, the parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of the Forest Service defendants on all of WildWest’s claims. The district court ruled against WildWest on the merits of its claims, but it also held that the procedural claims were waived as WildWest only “summarize[d] those arguments as necessary to preserve them for appeal” because such claims were previously raised at the preliminary injunction stage. After the district court’s summary judgment ruling, WildWest moved for an emergency injunction pending appeal in the district court, which was denied. WildWest then made a similar motion in the Ninth Circuit court, which was also denied. In this latest action WildWest appealed the district court’s summary judgment ruling. The Ninth Circuit ruled, ". . . we conclude the Forest Service was properly granted summary judgment on all of the claims asserted against it by WildWest."

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SBT Holdings v. Town of Westminster

Nov 6: In the U.S. Court of Appeals, First Circuit, Case No. 08-1512. Plaintiffs SBT Holdings, LLC, and its owners, Brian, Thomas, and Susan Foley, undertook a condominium real estate development project in the Town of Westminster, Massachusetts. After delays caused by environmental regulation demands by the Town, plaintiffs sued the Town, the Town of Westminster Conservation Commission, and various individuals. Suit was brought under 42 U.S.C. § 1983 alleging that the defendants, in violation of plaintiffs' equal protection rights, intentionally obstructed the development by taking certain actions, actions which a state court had found to be in violation of state law and in bad faith.

The district court dismissed plaintiffs' complaint for failure to state a claim. It held that the complaint failed to specify similarly situated others who were treated differently, a necessary element in an equal protection case. [See: SBT Holdings, LLC v. Town of Westminster, 541 F. Supp. 2d 405, 413 (D. Mass. 2008)]. The Appeals Court reversed the dismissal and remanded the case for further proceedings consistent with the opinion.

In its opinion the Appeals Court said, "Defendants' argument overlooks the relevant Massachusetts law. Since at least 1981, Massachusetts courts have recognized that conservation commissions are amenable to suit. See Hamilton, 425 N.E.2d at 366 (noting that local authorities may impose by bylaw or ordinance wetlands protections that are more stringent than state standards under section 40, but that 'where a taking is caused by the accomplishment of that purpose, it is the local authority which would bear the liability'). In addition, there are numerous cases where conservation commissions are parties and Massachusetts state courts dismissed claims for damages against them, but not on grounds they are not amenable to suit. . . Such actions have not been limited to takings claims and have included actions for damages."

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Sahu v. Union Carbide Corporation

Nov 3: In the U.S. Court of Appeals, Second Circuit, Case No. 065694. In this case involving an appeal from a judgment of the United States District Court for the Southern District of New York that granted a summary judgment in favor of defendants Union Carbide Corporation and Warren Anderson on all the claims of the plaintiffs related to water pollution allegedly caused by the operations at a factory owned and operated by a former Union Carbide subsidiary in Bhopal, India.

According to the Appeals Court, with respect to the plaintiffs' claims for injunctive relief and their theories of liability other than their attempt to pierce the corporate veil between Union Carbide and its subsidiary, the district court, sua sponte [taking action on its own], converted the defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) to one for summary judgment
under Federal Rule of Civil Procedure 56 and granted the motion.

The Appeals Court said, "We conclude that the district court did not give the plaintiffs sufficient notice to allow them adequately to respond to the converted summary judgment motion." Therefore, the Appeals Court vacated the district court action and remanded the case for further consideration consistent with its opinion.

According to their complaint, "the plaintiffs have suffered a variety of ailments caused by 'the highly carcinogenic chemicals and toxic pollutants in the drinking water supply emanating from the premises of the former UCIL plant'. . . The plaintiffs also contend that Union Carbide was aware of the danger of water pollution and other environmental damage yet failed to take adequate precautions to prevent it. . . [and] Finally, the plaintiffs fault Union Carbide's response to the 1984 disaster. They contend that the cleanup effort undertaken by the company was only 'a site-based project, undertaken at minimal expense, which would conceal both the seriousness of on-site pollution and the potential risks of off- site contamination, while enabling Union Carbide to recover money from the sale of its remaining assets at UCIL.'"

The Appeals Court concluded in part, ". . . we view this as a close case. But we think there is a reasonable likelihood that, in light of the peculiarly difficult procedural history of this and related litigation, the plaintiffs were not aware that they were in danger of an adverse grant of summary judgment based on the submissions prior to the district court's order converting the motion and then deciding it. We conclude that further notice was required and that consequently it is appropriate to remand for what would appear to be relatively limited further proceedings in connection with consideration of summary judgment."

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Sycamore Industrial Park v. Ericsson, Inc.

Oct 20: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-1118. The Appeals Court explains that in 1985, plaintiff Sycamore Industrial Park Associates bought an industrial property with fixtures, including a boiler-based steam heating system, from defendant Ericsson, Inc. Before it sold the property, Ericsson installed a new natural gas heating system, but it left the old heating system in place. Several years after purchasing the property, Sycamore discovered that the boilers, pipes, and various pipe joints that make up the old system were insulated with asbestos-containing material.

Sycamore sued to force Ericsson to remove and dispose of the abandoned asbestos insulation and reimburse Sycamore for alleged "response costs it has incurred or will incur in removing the asbestos insulation." The suit was brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). The district court granted Ericsson’s motion for summary judgment, and Sycamore appealed. The Appeals Court affirmed the district court’s grant of summary judgment.

In its ruling, the district court found that the defendant abandoned the asbestos insulation in place at the property prior to sale. Yet it held as a matter of law that the abandonment did not constitute “disposal” of a solid or hazardous waste into or on any land or water so that such solid waste or hazardous waste might enter the environment, as CERCLA requires. In addition, the district court held as a matter of law that the abandonment of the boiler-based heating system and the subsequent sale of the Sycamore property was not “handling, storage, treatment, transportation or disposal of any solid or hazardous waste,” as required by RCRA.

In its review the appeals Court notes that the Ninth Circuit reached the same conclusion in Stevens Creek, 915 F.2d 1355. The Seventh Circuit said, "Our sister Circuit determined there was no private cause of action under CERCLA for the sale of a building containing materials with asbestos because the defendant never 'disposed' of a hazardous substance." The Seventh Circuit ruled further, "Here, there is no evidence that Ericsson transferred the Sycamore property with the intent to dispose of a hazardous substance. It incidentally left the old heating equipment in place when it sold otherwise useful realty. It simply does not make sense to hold that Ericsson is a responsible party just because Sycamore decided to remove asbestos in place decades after it purchased valuable real estate in a legitimate transaction."

On the RCRA claim, the Appeals Court said, ". . .as a matter of law, by leaving equipment that is insulated by asbestos in place and then selling the Sycamore property, Ericsson did not handle, store, treat, transport, or dispose of the asbestos as required for RCRA liability.

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Andrews v. Columbia Gas

Oct 10: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-3632. The case involved a property agreement initiated in 1947 with previous owners to allow an Ohio gas company to construct and maintain gas pipelines. Until 2004, Columbia Gas (current owner) made no efforts to clear a right of way around its pipelines on plaintiffs’ property. In June 2004, a work crew informed Donald Andrews that the location of the pipeline required them to remove a stand of the pine trees on his property and Columbia Gas claimed the right to remove the trees and to maintain a right of way totaling approximately eighty feet. In April 2005 the company informed plaintiff that the company planned to enter the property and remove the trees.

Plaintiffs filed suit in Licking County Court and the company removed the action to the U.S. District Court for the Southern District of Ohio based on diversity jurisdiction. After trial, the magistrate judge entered judgment in favor of Columbia Gas. Plaintiffs appealed making four arguments: (1) that the magistrate judge incorrectly construed the right of way agreement as granting Columbia Gas a fifty-foot easement to operate and maintain each of its pipelines on plaintiffs’ property; (2) that the doctrines of laches, estoppel, and waiver, as well as the statute of limitations, precluded Columbia Gas from clearing the right of way forty years after the trees were planted; (3) that they are entitled to damages for the removed trees; and (4) challenging the district court’s denial of their motion for additional time to serve a jury demand. After review of all plaintiff claims, the Appeals court affirmed the decision of the district court.

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Salmon Spawning & Recovery Alliance v. Gutierrez

Oct 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35979. The Ninth Circuit explains that wild salmon and steelhead, which are listed as threatened or endangered under the Endangered Species Act (ESA), have been the subject of much litigation in the Federal courts. As they swim back and forth from the Pacific Northwest to Canada, the fish have no cognizance of an international boundary, or the Pacific Salmon Treaty of 1999 (Treaty), an effort by Canada and the United States to manage salmon populations originating in Alaska and the Pacific Northwest.

The appeal concerns whether three conservation groups have standing to challenge the decision of Federal agencies and officials to enter into, and remain a party to, that Treaty. The groups alleged that "take levels" permitted under the Treaty have allowed Canadian fisheries to overharvest endangered and threatened salmon and steelhead. The Western District Court of Washington dismissed all three of their claims for lack of standing. The Appeals Court affirmed the dismissal of the first and second claims; but reversed the district court in part because the groups have "procedural standing" to bring their third claim for relief.

The Ninth Circuit concluded that, "Salmon Spawning has properly alleged procedural injury. . . [and] also meets the requirements for statutory standing under the ESA and the APA. . . [and] Finally, Salmon Spawning has established associational standing. Public Citizen, 316 F.3d at 1019. Each of the conservation groups’ members has standing to sue individually; the interests the groups seek to protect are germane to their purposes as conservation organizations; and neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit. Id. Therefore, we reverse the district court’s dismissal of Salmon Spawning’s third claim for lack of standing and remand for further proceedings." The Appeals Court also noted, "We remand to the district court to determine whether attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, should be granted. Each party shall pay its own costs on appeal."

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USA v. Hagerman

Sep 26: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-2670. The defendants, Hagerman and Wabash Environmental Technologies were convicted of criminal violations of the Clean Water Act, and the company Wabash was ordered to pay $250,000 in restitution to a federal Superfund account and was placed on probation for five years. Corporate probation has been called “a flexible vehicle for imposing a wide range of sanctions having the common feature of continued judicial control over aspects of corporate conduct.”

The district court dismissed the petition after the government and Wabash resolved their differences by Wabash’s agreeing to start paying restitution and to furnish specified information concerning the company’s finances. Nevertheless, Wabash filed an appeal from the order of dismissal, as has its codefendant, Hagerman.

The Appeals Court rules, "Hagerman’s appeal must be dismissed because he was not a party to the probation-violation proceeding and no order naming him was entered. Wabash’s appeal must also be dismissed, apart from doubts that Wabash was aggrieved by the dismissal of the probation-violation proceeding. Wabash has no lawyer in this court (it was represented in the district court by a lawyer who has since withdrawn)." Hagerman, who is not a lawyer, claims the right to represent Wabash because he “is not only a major stockholder [presumably he means ‘member,’ since Wabash is an LLC, not a corporation] but is [also the] current President of [Wabash]. And it was Hagerman who filed the appeal on behalf of Wabash as well as himself." The Appeals Court said, "He complains about the deal that Wabash struck with the government, making this like an appeal by a party that agrees to a settlement but later thinks better of his decision and tries to get the appellate court to rescind it."

The Appeals Court notes that a corporation is not permitted to litigate in a federal court unless it is represented by a lawyer licensed to practice in that court and then determines that an LLC also comes under that rule. In dismissing the case, the Appeals Court ruled, ". . .the right to conduct business in a form that confers privileges, such as the limited personal liability of the owners for tort or contract claims against the business, carries with it obligations one of which is to hire a lawyer if you want to sue or defend on behalf of the entity. Pro se litigation is a burden on the judiciary . . . and the burden is not to be borne when the litigant has chosen to do business in entity form. From that standpoint there is no difference between a corporation and a limited liability company, or indeed between either and a partnership, which although it does not provide its owners with limited liability confers other privileges, relating primarily to ease of formation and dissolution. That is why the privilege of pro se representation is, as we noted, denied to partnerships too."

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Casitas Municipal Water District v. U.S.

Sep 25: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-5153. Casitas Municipal Water District (Casitas) appealed the judgment of the United States Court of Federal Claims granting summary judgment in favor of the government holding that there was no governmental breach of contract and no compensable taking under the Fifth Amendment. The Appeals Court affirmed-in-part, reversed-in-part, and remand the case.

In its opinion summary the Appeals Court said, "In sum, governmental deprivation of some water use rights absent the government’s active or appropriative hand in diverting water for its own or a third party’s consumptive or proprietary use does not amount to a physical taking. The only case holding to the contrary is Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001), which its author expressly disclaimed in the present case in light of the intervening Tahoe-Sierra case. Casitas Mun. Water Dist. v. U.S., 76 Fed. Cl. 100, 106 (2007) ('Tahoe-Sierra . . . compels us to respect the distinction between a government takeover of property (either by physical invasion or by directing the property’s use to its own needs) and government restraints on an owner’s use of that property.'). Casitas has been restrained from making full use of its California water license under certain circumstances related to the endangerment of the steelhead trout. When the government requires a usufructuary holder of water rights to allow a specified amount of dam-diverted water to circle back to its natural flow by way of a fish ladder for the purpose of endangered species preservation, a classic regulatory restriction on private property rights to prevent a public harm has occurred. It is logically incongruent to analyze ESA-based land use restrictions as regulatory takings, and ESA-based water use restrictions as physical takings. The government is not appropriating or taking possession of Casitas’ property, but rather is prohibiting Casitas from making private use of a certain amount of the river’s natural flow under a public program to promote the common good. Labeling such an action a physical taking blurs the line Tahoe-Sierra carefully draws between physical and regulatory takings.

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Abagninin v. AMVAC Chemical Corp

Sep 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-56326. Akebo Abagninin and others who live and work in the Ivory Coast (Abagninin) [Côte d'Ivoire, Africa] appeal the district court’s dismissal with prejudice of their claims against manufacturers, distributors, and users of the pesticide DBCP for genocide and crimes against humanity under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. Abagninin alleges that DBCP caused male sterility and low sperm counts, which AMVAC knew. The district court granted with prejudice AMVAC’s motion for judgment on the pleadings as to the genocide claim for failure to allege that AMVAC acted with specific intent. Abagninin’s claim for crimes against humanity was subsequently dismissed for failure to allege that AMVAC’s conduct occurred within the context of a State or organizational policy. The Appeals Court affirmed the district court decision.

In part, the Appeals Court ruled on the "intent" issue, "The Second Circuit has recognized that dismissal of a genocide claim is appropriate when the complaint fails to allege facts sufficient to show specific intent [Cite: In re Agent Orange Prod. Liability Litig., 373 F. Supp. 2d 7, 115 (E.D.N.Y. 2005), aff’d, 517 F.3d 104 (2d Cir. 2008)]. . . Abagninin’s attempts to distinguish Agent Orange because the harmful effects of those chemicals were not known at the time assume, but incorrectly, that knowledge is the standard for intent. The key similarity between this case and Agent Orange is Abagninin’s failure to allege that AMVAC intended to harm him through the use of chemicals."

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State of Alaska v. Federal Subsistence Board

Sep 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35723. As explained by the Appeals Court, Defendant-Appellee Federal Subsistence Board (FSB or Board) administers the Federal subsistence program at the heart of Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA). In 2005, the FSB granted residents of Chistochina, a rural community in Southeast Alaska, a Customary and Traditional use determination (C & T determination) for moose throughout Game Management Unit (GMU) 12. The C & T determination permits Chistochina residents to harvest moose in GMU 12 under Federal subsistence hunting regulations, which are more permissive than State hunting regulations.

Plaintiff-Appellant the State of Alaska (Alaska) challenged the C & T determination in district court, contending that the FSB granted the determination in violation of the Administrative Procedure Act (APA). The district court granted summary judgment in favor of Defendants-Appellees FSB, et al. The Appeals Court said, "After a careful review of the record, we find no reason to set aside the FSB’s C & T determination" and affirmed the decision of the district court.

Access the complete opinion (click here). [*Wildlife, *Land]

Northwest Coalition for Alternatives to Pesticides v. U.S. EPA

Sep 19: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 05-75255, 05-76807. The petitioners are two environmental groups challenging the U.S. EPA's establishment of tolerances for seven pesticides used mostly on fruit and vegetable crops. The Appeals Court in a split (2-1) decision granted the petition in part, denied it in part, and remanded the case to the EPA.

The case involves the regulation of pesticides under two statutes: the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Federal Food, Drug, and Cosmetic Act (FDCA). The Appeals Court notes that in 1996, Congress amended the FDCA by enacting the Food Quality Protection Act (FQPA), Pub. L. No. 104-170, 110 Stat. 1489. One of the key provisions of the FQPA requires the EPA to give special consideration to risks posed to infants and children when establishing pesticide tolerances.

The FQPA directs the EPA to use an additional tenfold margin of safety . . . to take into account potential pre- and post-natal toxicity and completeness of the data with respect to exposure and toxicity to infants and children. EPA may “use a different margin of safety for the pesticide chemical residue only if, on the basis of reliable data, such margin will be safe for infants and children." "Unfortunately," as the Appeals Court points out, the FQPA does not define “reliable data,” and says, "The dispute before us turns on the definition of this term."

Between December 2001 and April 2002, EPA published seven regulations establishing tolerances for the pesticides acetamiprid, fenhexamid, halosulfuron-methyl, isoxadifen-ethyl, mepiquat, pymetrozine, and zetacypermethrin and did not apply the presumptive 10x child safety factor to any of these seven pesticides. EPA reduced the 10x child safety factor to 3x for four of the pesticides (acetamiprid, fenhexamid, isoxadifen-ethyl, and pymetrozine), and did not apply a child safety factor at all for the others.

The majority concluded, "Because the EPA failed to adequately explain the basis for its deviations from the 10x child safety factor for acetamiprid, mepiquat, and pymetrozine, we grant the petitions for review in part and remand to the EPA for further proceedings consistent with this opinion. On all other issues, we deny the petitions for review." The dissenting Justice indicated in part concurring and in part and dissenting, "I agree with the majority’s conclusion that 'the computer modeling used by the EPA to calculate the safety of drinking water was neither contrary to law nor arbitrary and capricious.'" and did not act arbitrarily and capriciously by establishing the pesticide tolerances for acetamiprid, mepiquat, and pymetrozine; but disagreed with the majority’s conclusion that the tolerance regulations for acetamiprid, mepiquat, and pymetrozine must be remanded.

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USA v. Capital Tax Corp

Sep 19: In the U.S. Court of Appeals, Seventh Circuit, Case No. 07-3744. Capital Tax Corporation (Capital Tax) is an Illinois company that purchases distressed real estate properties and resells them for profit. At a Cook County scavenger sale in October 2001, Capital Tax successfully bid on tax certificates to a derelict paint factory on the south side of Chicago. Capital Tax claims that it then entered into an agreement to sell the property to a man named Mervyn Dukatt. Pursuant to this alleged contract, Capital Tax exercised its option on the tax deed and delivered possession of the property to Dukatt. Capital Tax retained legal title to the property, however, as security for the remainder of the purchase price. Dukatt never made another payment, leaving Capital Tax with title to an unwanted property.

Both the Chicago Department of the Environment (CDOE) and U.S. EPA were called to the old paint factory after receiving complaints that toxic paint products were leaking out of the factory into nearby streets and sewers. The inspections revealed thousands of rusty and leaking barrels containing hazardous waste. The EPA ordered Capital Tax to dispose of the waste but Capital Tax refused; the EPA cleaned up the site itself.

The Government then initiated the legal action under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) for the response costs it incurred. The district court granted summary judgment in favor of the Government on both liability and damages. Capital Tax appealed the decision, raising two basic arguments. (1) it claims that it is not liable under CERCLA because it is not the “owner” of the facility; and (2) even if it is liable, Capital Tax claims that it is only responsible for the cleanup of the parcels it owned.

On the ownership and liability issue the Appeals Court said, "From this record, it is difficult for us to determine whether Capital Tax had a valid and enforceable contract for the sale of land under Illinois law. If there is no valid contract, then Capital Tax is the 'owner' under § 107(a)(1) and is liable under CERCLA. If there is a valid contract and if equitable conversion applies, Capital Tax is not the 'owner' under § 107(a)(1) and is not liable under CERCLA. The case will likely turn on whether the facts show that Dukatt was, in fact, a bona fide buyer."

On the apportionment issue, the appeals Court indicates that, "As the district court noted, Capital Tax’s mistake is in attempting to apportion liability based on where the hazardous materials were located on the day they were removed. Those hazardous materials could easily have originated in another part of the plant. As in the game of 'musical chairs,' the fact that the chemicals came to rest in any particular place when production ended was largely happenstance. . . Because we have commingling, cross-contamination and migration occurring on a site that formerly operated as a single, unitary operation, there is no basis for apportionment. [citing: See Burlington Northern, 520 F.3d at 956-58].

The Appeals Court also ruled, "A 'sufficient cause' for failing to comply is a reasonable belief that one is not liable under CERCLA. See United States v. Barkman . . .Because we are remanding this case to district court on the issue of liability, we find it appropriate to vacate the award of damages. The district court may reassess the issue of penalties, if it deems that action necessary, after resolving the liability issue."

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National Resources Defense Council v. U.S. EPA

Sep 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-55183, 07-55261. Plaintiffs-Appellees, National Resources Defense Council (NRDC) and Waterkeeper Alliance Inc. (collectively, NRDC), sued Defendants-Appellants, U.S. EPA and its administrator (collectively, EPA), under the Clean Water Act (CWA) and the Administrative Procedure Act (APA), seeking to compel EPA to promulgate effluent limitation guidelines (ELGs) and new source performance standards (NSPSs) for storm water pollution discharges caused by the construction and development industry (construction industry).

The States of Connecticut and New York, and the New York State Department of Environmental Conservation (collectively, state-intervenors) intervened on behalf of NRDC; the National Association of Home Builders and Associated General Contractors of America (collectively, industry-intervenors) intervened on behalf of the EPA.

The district court exercised its jurisdiction under the Clean Water Act’s citizen-suit provision and denied Defendants’ motion to dismiss; granted Plaintiffs partial summary judgment on their claim that the CWA requires the EPA to issue ELGs and NSPSs for the construction industry; and issued a permanent injunction compelling EPA to do so. The Appeals Court affirmed the district court decision.

The Appeals Court ruled in part saying, "Despite our conclusion that the EPA had a nondiscretionary duty to promulgate ELGs and NSPSs in this case, we also must consider whether the EPA properly avoided this duty when it removed the construction industry from its plans published pursuant to § 304(m). Nothing in the CWA expressly grants the EPA the authority to remove a point-source category from a § 304(m) plan. . . " The Appeals Court said, first, ". . .once a category is identified under subsection B, the promulgation of guidelines 'shall be no later than . . . 3 years after the publication of the plan.' This timeline effectuates Congress’ stated desire to force the EPA to more rapidly promulgate ELGs and NSPSs. If the EPA had the authority to delist point-source categories at its whim, however, this deadline would be rendered meaningless as the EPA could delist any point-source category to avoid the deadline set forth in § 304(m)(1)(c)."

Secondly, the Appeals Court said, "Congress determined that by the time a point-source category is listed in a § 304(m) plan, the EPA must have already engaged in a review process to consider whether the category should be listed. It follows logically that the three-year delay provided for in § 304(m)(1)(c) is not to decide whether to list a point-source category, but to allow the EPA to consider what the substance of the ELGs and NSPSs should be."

NRDC issued a release on the decision and said it will help to ensure that construction site pollution won’t cause beach closings, waterborne disease, flooding, fish kills and contaminated drinking water supplies. Melanie Shepherdson, staff attorney at NRDC said, “This decision will go along way towards protecting America’s streams and rivers from the construction and development industry. The court made it very clear that EPA can’t just shirk its responsibilities to reign in pollution from this industry.”

Access the complete opinion (click here). Access the release from NRDC (click here).

Fund For Animals v. Kempthorne (Interior Department)

Sep 18: In the U.S. Court of Appeals, Second Circuit, Case No. 05-2603. In this case the Plaintiffs appeal from a decision of the district court that granted defendants, Department of Interior, Fish and Wildlife Service (FWS), a summary judgment and dismissing plaintiffs' claims challenging the defendants' Public Resource Depredation Order, 50 C.F.R. § 21.48, as a violation of treaty obligations and Federal statutes. The Appeals Court affirmed the decision of the district court.

The case involves double-crested cormorants (cormorants). The birds are not protected by the Endangered Species Act, 16 U.S.C. § 1531 et seq., but their treatment is regulated by international treaties to which the United States is a party, and by Federal statutes and regulations. The Fish and Wildlife Service (FWS) has been delegated primary responsibility for regulating migratory birds, including cormorants. [See Migratory Bird Permits; Regulations for Double-Crested Cormorant Management, 68 Fed. Reg. 12,653, 12,653 (Mar. 17, 2003)].

The plaintiffs brought this action to challenge the Depredation Order, which, they allege, violates the relevant treaties and statutes by "authoriz[ing] state fish and wildlife agencies, Indian Tribes, and U.S. Department of Agriculture . . . employees to kill an unlimited number of federally protected double-crested cormorants in New York and twenty-four other States, without any restrictions on time of year or location of the killings, without any advance notice to the FWS, and without any showing of specific, localized harm caused by the cormorants." The Depredation Order was issued because When migratory birds converge in large numbers, they may consume large quantities of local plants, fish, or other species. In doing so, they may harm commercial activity dependent on those species.

In its decision the Appeals Court ruled that "the Depredation Order does not violate the Migratory Bird Treaty Act the MBTA," and it accepts the agency's view regarding compliance with the Mexico Convention; "the Depredation Order represents one rational response to the problem of cormorant depredation based on evidence available to the FWS, and the FWS has explained its reasons for choosing one rational response over others"; and the "FWS did not violate NEPA by omitting site-specific analyses in this case."

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Missouri Coalition For The Environment. v. U.S. Corps of Engineers

Sep 16: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-2218. In this case, the Missouri Coalition seeks disclosure of a number of documents from the U.S. Army Corps of Engineers under the Freedom of Information Act (FOIA). The district court granted summary judgment in favor of the Corps on the basis that the "deliberative process privilege," 5 U.S.C. § 552(b)(5), exempts all 83 documents responsive to the request. The documents related to the Upper Mississippi River System Flow Frequency Study (UMRSFFS) designed to identify the 100-and 500-year flood plains. The Coalition appealed the district court judgment and the Appeals Court remanded the case for further proceedings.

According to the Corps each and every document was identified as "privileged under FOIA Exemption 5, the Deliberative Process Privilege." The Coalition argued that the Corps had failed to prove that the documents were exempt from disclosure. The case revolves around the so-called "Vaughn index" which is designed to "help determine whether a governmental agency has discharged its burden under FOIA" and evolves from the Vaughn court, i.e. Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973). Vaughn indices serve two purposes: First, to ensure an “effectively helpless” party’s right to information “is not submerged beneath governmental obfuscation and mischaracterization” and second, to “permit the court system effectively and efficiently to evaluate the factual nature of disputed information.”

The Coalition argues that, viewed in the light most favorable to the Coalition, the Corps’ Vaughn index is insufficient to show whether the Corps’ obligations under FOIA were discharged. As a result, the Coalition posits, some of the documents should have been released. Alternatively, the Coalition proposes that even if the Vaughn index is adequate, some of the documents – in whole or in part – are not subject to the exemption. The Corps contends that it satisfied its FOIA obligations with an adequate Vaughn index that properly demonstrated the documents were subject to the deliberative process privilege.

The Appeals Court said that sworn declarations from Corps staffers provided adequate additional information to the Vaughn index to explain why the documents should be exempt. For example, one affidavit submitted indicated, "These communications are exempt from disclosure under Exemption 5 because they are predecisional and part of the deliberative process. They involve the give-and-take that is inherent in such a study process. . ."

The Coalition argues that the prior release of some of the documents, in whole or part, destroys the credibility of the index and affidavits. The Appeals Court said, "We are not persuaded that the fact the UMRSFFS report was ultimately released and that some of the information in the final report was contained in the requested documentation affects the deliberative or predecisional nature of the requested documents. We therefore conclude the Vaughn index is sufficient to establish that some of the information requested is, in fact, exempted by the deliberative process privilege. However, because the district court failed to analyze the segregability of the documents, we cannot conclude at this time that the privilege applied, as the district court concluded, to all 83 responsive documents in their entirety. . . Here, the district court made no findings on the issue of segregability. Although the issue was properly raised and preserved for appeal, we are unable to determine from the record whether the issue was considered and rejected or not considered at all. Therefore, we must remand the case for a segregability analysis consistent with this opinion."

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NRDC v. Winter (Department of Navy)

Sep 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-55294. Defendant-Appellant, Donald C. Winter (the Navy), appealed the district court’s decision to award attorneys’ fees to Plaintiffs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The Navy claimed that: (1) the amount of the award for some of the attorneys working on the case should not have been enhanced above the statutory rate; (2) the limited extent of Plaintiffs’ success merited a reduction in fees; and, (3) the award of appellate fees was improper because the fee application was filed in the district court, not in the court of appeals.

The Appeals Court said, "We conclude that the district court did not abuse its discretion on the second and third issues. However, because we conclude that the standard used by the district court to determine the first issue constitutes an error of
law, we vacate the district court’s order awarding fees and remand for additional fact finding and recalculation of fees in accordance with this opinion."

The Appeals Court summarized, "In Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991), we consolidated into a three-part test the relevant law governing what must be proven in order to be awarded enhanced attorneys’ fees: (1) 'the attorney must possess distinctive knowledge and skills developed through a practice specialty;' (2) 'those distinctive skills must be needed in the litigation;' and (3) 'those skills must not be available elsewhere at the statutory rate.' Id. at 1496. . .we remand this case to the district court for reconsideration consistent with this opinion to determine whether the Plaintiffs have met their burden of proof under the third prong of Love. If not, the district court should recalculate fees for the Plaintiffs as required. On remand, the district court should also recalculate fees for the junior Irell attorneys at the statutory rate, plus a cost of living increase."

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Fairbanks Northstar Borough v. U.S. Army Corps of Engineers

Sep 12: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35545. The Clean Water Act (CWA) makes it unlawful to discharge dredged and fill material into the waters of the United States except in accord with a permitting regime jointly administered by the Army Corps of Engineers (Corps) and the U.S. EPA. In the case, Fairbanks North Star Borough (Fairbanks) seeks judicial review of a Corps’ “approved jurisdictional determination,”which is a written, formal statement of the Agency’s view that Fairbanks’ property contained waters of the United States and would be subject to regulation under the CWA. The Appeals Court affirmed the district court’s dismissal on the pleadings for lack of jurisdiction and said, "The Corps’ approved jurisdictional determination is not final agency action within the meaning of the Administrative Procedure Act (APA), 5 U.S.C. § 704."

By way of background the Appeals Court cites recent noted Supreme Court decisions saying, “The burden of federal regulation on those who would deposit fill material in locations denominated ‘waters of the United States’ is not trivial.” Rapanos v. United States, 547 U.S. 715, 721 (2006) (plurality opinion). . . “The Corps has issued regulations defining the term ‘waters of the United States,’ ” Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531U.S. 159, 163 (2001), to include most wetlands adjacent to waters of the United States that are not themselves wetlands, see 33 C.F.R. § 328.3(a)(7).

Following a Corps issued “preliminary” jurisdictional determination finding that Fairbanks’ entire parcel [2.1 acre proposed recreation area] contained wetlands, Fairbanks requested that the Corps provide an “approved” jurisdictional determination. The Corps obliged Fairbanks and said, "the entire parcel described above contains waters of the United States . . . under our regulatory jurisdiction . . . . This approved jurisdictional determination is valid for a period of five (5) years. . ." Fairbanks brought the suit to set aside the Corps’ approved jurisdictional determination contending "that its property could not possibly be a wetland because it is 'underlain by shallow permafrost at a depth of 20 inches' that does not 'exceed zero degrees Celsius at any point during the calendar year.'"

In its opinion, the Appeals Court said, "As a matter of first impression, we hold that the Corps’ issuance of an approved jurisdictional determination finding that Fairbanks’ property contained waters of the United States did not constitute final agency action under the APA for purposes of judicial review." The Appeals Court cites Bennett v. Spear, 520 U.S. 154, 177-78
(1997) saying, "As a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency’s decisionmaking process -- it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.”

Then, the Appeals Court rules, "The approved jurisdictional determination represented the Corps’ definitive administrative position that Fairbanks’ property contained wetlands. But, . . . it did not ‘impose an obligation, deny a right, or fix some legal relationship'. . . Because finality is a jurisdictional requirement to obtaining judicial review under the APA, the district court correctly dismissed Fairbanks’ action. . . We do not reach the issues of ripeness and statutory preclusion of judicial review."

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Dumontier v. Schlumberger Technology Corp

Sep 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-36005. In this case, the Appeals Court considers whether "subcellular damage" amounts to bodily injury under the Price-Anderson Act. As explained by the Appeals Court Schlumberger Technology Corporation’s employees carelessly left some cesium-137 on a drilling rig. Plaintiffs later worked on the rig and were exposed. Though less well known than uranium or plutonium, cesium exposure can cause burns, radiation sickness and cancer; if ingested, it causes mania. Plaintiffs have not developed cancer or any other illness; however, they sued Schlumberger, claiming that the radiation caused "subcellular damage," including to their DNA. They brought a claim under Montana law seeking damages for emotional distress, medical monitoring and actual malice.

Schlumberger argued that this claim was preempted and moved to replace it with a Federal cause of action under the Price-Anderson Act, 42 U.S.C. § 2014(hh); it also moved for summary judgment on the Price-Anderson claim. The district court granted both motions and the Appeals Court affirmed the decision.

A "nuclear incident" is defined in the Act as “any occurrence . . . causing . . . bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material.” Exposure to radioactive materials is compensable only if it causes one of the harms on the list. Plaintiffs claim that they suffered a listed harm -- namely bodily injury.

The Ninth Circuit says, "The Act [Price-Anderson] was designed to safeguard the nuclear industry from expansive liability under state law. . . plaintiffs’ interpretation would permit an end run." On the critical question of "bodily injury," the Appeals Court says, "
not every alteration of the body is an injury. Thinking causes synapses to fire and the brain to experience tiny electric shocks; fear stimulates the production of chemicals associated with the fight-or-flight response. All life is change, but all change is not injurious. Adopting plaintiffs’ interpretation of bodily injury would render the term surplusage, as every exposure to radiation would perforce cause injury."

The Appeals Court continues saying, "X-ray technicians, for example, are routinely exposed to more radiation than the public dose limit allows. Compare 10 C.F.R. § 20.1201(a)(1)(i) (limiting occupational exposure to 5 rem per year) with 10 C.F.R. § 20.1301(a)(1) (limiting exposure for members of the public to 0.1 rem per year). This reading would make exceeding the federal dose limit a strict liability offense, with damages determined by the extent of emotional distress. The Act would cease to be a liability limit and become an unlocked cash register."

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Fall River Rural Electric Cooperative v. FERC

Sep 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-71944. Fall River Rural Electric Cooperative, Inc. (Fall River) petitions for review of two Federal Energy Regulatory Commission (FERC) orders. Fall River applied for a license to construct, operate, and maintain a new hydroelectric power generating facility at Hebgen Dam on the Madison River in Gallatin County, Montana. In its orders FERC dismissed Fall River’s license application and denied Fall River’s request to hold the proceeding in abeyance, Fall River Rural Elec. Coop., Inc., (2005), and it denied Fall River’s request for rehearing, Fall River Rural Elec. Coop., Inc., (2006). Fall River petitioned for review of both orders. The Appeals Court denied Fall River’s petition for review.

In its conclusion the Appeals Court said, "In sum, we conclude that substantial evidence supported FERC’s conclusion that PPL’s license would be substantially altered under Section 6 of the FPA by Fall River’s proposed project, that FERC’s orders were consistent with its precedents and with its issuance of a preliminary permit, and that PPL [Pennsylvania Power and Light Montana, LLC (PPL)] did not impliedly consent to Fall River’s proposed modifications. Therefore, Fall River’s petition for review is denied."

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