Tuesday, May 27, 2008

Natural Resources Defense Council v. U.S. EPA

May 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-73217. The Natural Resources Defense Council (NRDC), along with the Oil and Gas Accountability Project (OGAP), Amigos Bravos, and Powder River Basin Resource Council (Powder River), challenged aspects of U.S. EPA's Clean Water Act (CWA) storm water discharge rule. This rule, known as “Amendments to the National Pollutant Discharge Elimination System (NPDES) Regulations for Storm Water Discharges Associated With Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities” [71FR 33,628, 6/12/06, codified at 40 C.F.R. § 122.26)]. The rule exempts from the permitting requirements of the CWA discharges of sediment from oil and gas construction activities that contribute to violations of water quality standards.

NRDC, et al contend that the rule’s NPDES permitting requirement exemption for storm water discharges of sediment from oil and gas construction activities is unlawful under section 402(l)(2) of the CWA, as amended by section 323 of the Energy Policy Act of 2005, and under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). The Appeals Court granted their request and vacated the rule, and remanded the matter to EPA for further proceedings in accordance with the opinion.

The two Judge majority concluded in part, ". . . Clearly, EPA’s June 12, 2006, storm water discharge rule, codified at 40 C.F.R. § 122.26, represents a complete departure from its previous interpretation of what constitutes “contamination” under section 402(l)(2). As such, we conclude that EPA’s inconsistent and conflicting position regarding the discharge of sediment-laden storm water from oil and gas construction sites causes its interpretation of amended section 402(l)(2), as reflected in the storm water discharge rule, 40 C.F.R. § 122.26, to be an arbitrary and capricious one. . . This conclusion is reinforced by the fact that neither the amending statute (section 323), the statutory definition (section 503(24)), nor the statutory exemption (402(l)(2)) make any mention at all of 'sediment' -- or of whether it is covered or not.

In a dissenting opinion, Justice Callahan said, ". . . as the majority correctly concludes, this dispute must be resolved at step two of the Chevron analysis, with the question of whether the Environmental Protection Agency (EPA) provided a -- not the only or the best -- permissible interpretation of section 402(l)(2). It is at this point that I respectfully part course with the majority and accord EPA’s permissible interpretation appropriate deference. . . because EPA’s 'interpretation is at least as plausible as competing ones,' this court should defer to its construction."

Commenting on the decision, Aaron Colangelo, senior attorney at NRDC said, "It is well known that sediment pollution from oil and gas development can impair water quality and destroy aquatic habitat. Yet under the guise of enforcing the 2005 Energy Act, EPA exempted projects from the requirements of the Clean Water Act. Today, the court rightly decided that the EPA rule was arbitrary and capricious. The law clearly requires oil and gas projects to apply for permits and install pollution controls to protect water quality. The explosion of oil and gas exploration and production poses a serious threat to water quality throughout the West. Sediment from projects runs off into streams and rivers; harming aquatic life; increasing water treatment costs for towns and cities; decreasing property values; and interfering with recreational activities, such as boating, swimming and fishing."

Access the complete opinion (
click here). Access a statement from NRDC (click here). Access more information about exemptions in federal environmental laws for the oil and gas industry in the NRDC report, Drilling Down: Protecting Western Communities from the Health and Environmental Effects of Oil and Gas Pollution (click here). Access EPA's docket for this rulemaking (click here).

Our Children's Earth Foundation v. U.S. EPA

May 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-16214. Environmental advocates, Our Children’s Earth Foundation and Ecological Rights Foundation (collectively OCE), filed a citizen suit under the Clean Water Act, alleging that U.S. EPA failed to fulfill its mandate to review effluent guidelines and limitations in a timely manner and in accord with technology-based standards. Specifically, OCE claims that EPA violated its statutorily-mandated duties by abandoning "technology-based" review in favor of "hazard-based" review; neglecting to identify "new" polluting sources; and failing to publish timely plans for future reviews.

The Appeals Court explained that, "A technology-based approach to water quality focuses on the achievable level of pollutant reduction given current technology, whereas a hazard-based approach seeks to identify known hazards or contaminants in the water and to reduce the prevalence of those hazards. Although these approaches are not mutually exclusive, OCE claims that EPA jettisoned a technology-based approach altogether, thus abdicating its statutory duties."

The district court granted judgment in favor of EPA, holding that the challenged acts or omissions were discretionary. The Appeals Court said, "We agree that the decisions whether to revise the effluent guidelines and whether to incorporate technology-based criteria in its periodic review of the guidelines fall within EPA’s discretion. Consequently, we affirm."

On a related Motion to Transfer issue, the Appeals Court said, "The district court properly dismissed OCE’s claims regarding the manner and timing of review of the guidelines, the scheduling of plan publication and identification of new polluting sources, and did not abuse its discretion in refusing to transfer OCE’s claims to this court."

Access the complete opinion (
click here).

Thursday, May 22, 2008

United States v. Manning (WA Dept. of Ecology)

May 21: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-35613, 06-35664, 06-35765. The case involves the Hanford Nuclear Reservation (Hanford) in Washington State -- one of the largest sites in the country for the treatment, storage and disposal of radioactive and non-radioactive hazardous waste; currently storing over 53 million gallons of mixed radioactive and nonradioactive hazardous waste. During World War II, the United States government constructed Hanford to manufacture plutonium for military purposes.

Over the decades, the United States Department of Energy (DOE) has disposed of approximately 450 billion gallons of contaminated water and liquid mixed waste on the site. At least one million gallons of high-level mixed radioactive and non-radioactive hazardous waste have leaked into the environment and approximately 170 miles of groundwater beneath Hanford are contaminated. In addition, tens of millions of gallons of waste are stored at Hanford in tanks that were constructed in the 1940s and meant to last only twenty years. As of 2004, there was a backlog of over 22,000 cubic meters of low-level mixed waste and transuranic mixed waste awaiting treatment and disposal.

In 1989, Washington’s Department of Ecology (Ecology), the DOE, and U.S. EPA entered into the Hanford Federal Facility Agreement and Consent Order, also known as the Tri-Party Agreement, to bring Hanford into compliance with federal
and state environmental laws. However, according to Ecology, since signing the agreement, the DOE and its contractors have been cited numerous times for violations of federal and state hazardous and mixed waste laws and requirements. The present appeal arises out of an effort by Washington voters “to prevent the addition of new radioactive and hazardous waste to the Hanford nuclear reservation until the cleanup of existing contamination is complete.”

The Ninth Circuit said, "Although the desire to take action against further environmental contamination and to protect the health and welfare of the community is understandable, we conclude that the statute enacted through the passage of Initiative 297 (I-297), the Cleanup Priority Act (CPA), is preempted by federal law. This result is dictated by a plain reading of the Washington statute, as interpreted by the Washington Supreme Court, as well as longstanding principles of federal preemption."

Access the complete opinion (
click here).

Wednesday, May 21, 2008

U.S. v. Wilderness Society

May 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-15596. As explained by the Appeals Court, this is a dispute over the status of a road on U.S. Forest Service land in Elko County, Nevada. The case was before the Ninth Circuit for the first time in 2002. See United States v. Carpenter, 298 F.3d 1122 (9th Cir. 2002). At that time, the intervenor-appellant environmental groups wanted to object to the terms of a proposed settlement between the United States and Elko County that effectively allowed the County to repair the road. The Appeals Court ordered the district court to grant the motion to intervene.

The intervenor-appellants are now back, claiming that the district court disregarded the Appeals Court mandate by not permitting them to intervene in the Quiet Title Act portion of the suit that was the subject of the proposed settlement and therefore was the critical part of the litigation. The district court, after the Appeals Court decision, permitted the intervenor-appellants to appear only as amici during the settlement approval proceedings; it denied their motion to participate in an evidentiary hearing. After the hearing, the court ruled against their position on the merits without, in appellants’ view, permitting them adequate participation. The intervenor-appellants Appealed and requested the Ninth Circuit not only to vacate the approval so they can fully present their position, but they also request the Appeals Court to reach the merits and rule in their favor.

For their part, the United States and the County defend the settlement, contending that the intervenors’ participation was adequate because the district court properly, in appellees’ view, ruled that the intervenors lacked standing to participate as a party in the quiet title proceedings in light of their lack of any property interest in the disputed right of way for the road. The Appeals Court ruled, "pursuant to our earlier mandate, we hold that the district court must permit the intervenors to participate as parties in advocating their position in the Quiet Title Act action. We must vacate the settlement approval to effectuate that result. We also hold that the intervenors’ cross-claims are reviewable under the APA. The approval of the settlement of the Quiet Title Act claim is vacated, as is the district court’s order denying the appellants’ motion to intervene. The district court’s dismissal of the appellants’ cross-claims is reversed. The case is remanded for further proceedings consistent with this opinion."

Access the complete opinion (
click here).

AES Sparrows Point v. Smith

May 19: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1615. AES Sparrows Point LNG, LLC and Mid-Atlantic Express, LLC (together, AES) brought the suit against Baltimore County, Maryland, its executive, and its zoning commissioner (together, the County) seeking a declaration that County Bill 9-07, which prohibits the siting of any liquefied natural gas (LNG) terminal in the County’s Chesapeake Bay Critical Area, is preempted by the Natural Gas Act (NGA). The district court granted summary judgment to the County, concluding that Bill 9-07 is saved from preemption because it "is within the delegated authority of the State of Maryland and the County under the Coastal Zone Management Act" (CZMA) and "is enforceable as part of the State of Maryland’s Coastal Management Program." J.A. 271, 284. AES appealed.

The Appeals Court overturned the district court ruling and said, "We hold that Bill 9-07 is not part of Maryland’s federally approved Coastal Zone Management Plan (CMP), and therefore is not saved from preemption as an exercise of Maryland’s rights under the CZMA. Accordingly, we reverse the judgment of the district court and remand for further proceedings."

The Appeals Court said "our inquiry must focus first on whether Bill 9-07 has been incorporated into Maryland’s CMP. The CZMA specifies the manner by which a state may amend its approved CMP. . . 'Amendment' for purposes of the CZMA is defined in 15 C.F.R. § 923.80(d) . . . We have no difficulty concluding that Bill 9-07 is an 'amendment' of Maryland’s CMP because it imposes a categorical ban on LNG terminals in the Chesapeake Bay Critical Area that the CMP did not previously contain. . .

"The County does not dispute that it has never presented Bill 9-07 to NOAA for approval as required by the CZMA. The CZMA makes clear, however, that the mere adoption of Bill 9-07 into the County’s CAPP by Maryland’s Critical Area Commission is not sufficient to make Bill 9-07 part of Maryland’s CMP. . . Until NOAA approves Bill 9-07 or fails to take action after being presented with it, it is not part of Maryland’s CMP and cannot be saved from preemption by the NGA’s Savings Clause. Therefore, Bill 9-07 is preempted by the NGA’s grant of exclusive authority to FERC 'to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal,' 15 U.S.C. § 717b(e)(1), and may not be enforced by the County to prevent the construction of an LNG terminal at Sparrows Point."

Access the complete opinion (
click here).

Thursday, May 15, 2008

Sierra Forest Legacy v. Rey (U.S. Forest Service)

May 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16892. Sierra Forest Legacy (Sierra Forest) appeals the decision of the district court denying a preliminary injunction against the United States Forest Service (the USFS or the Forest Service) in a suit challenging its decision to permit logging in accordance with changes made in 2004 by the USFS in the relevant forest plan. Many other parties have intervened on each side. The Attorney General of California, Edmund Brown, Jr., filed an amicus brief in support of Sierra Forest. The Appeals Court held that the district court abused its discretion and reversed and remanded the case.

The Appeals Court says that the "USFS acknowledges that its reason for selling the forest trees to commercial loggers is to raise funds to carry on its fire prevention duties. Sierra Forest and the State of California seek to preserve the larger trees and so to preserve the habitat that supports various species. We need decide here a limited and narrow issue: Does the 2004 SEIS prepared by USFS regarding its plans to sell off the forest trees comply with the requirements of NEPA?"

In its conclusion, the Appeals Court says, "Postponement of the Forest Service plans may increase the danger posed by fires; but the Forest Service and Congress do not appear helpless to find the funds to decrease the dangers. The question we address here is whether USFS’s choice of funding for fire reduction -- rather than fire reduction itself -- outweighs California’s preservation interests. We conclude that it does not, given that 'special solicitude' should be afforded California’s stake in its natural resources and that the Forest Service did not consider alternatives to its choice of funding."

Greg Loarie, an attorney with Earthjustice representing the conservation groups said, "The Ninth Circuit understood that the old-growth logging at issue here may turn a profit, but will not make the Sierra any safer if there's a fire. We desperately need the Forest Service to turn its attention away from the big trees and back to Sierra communities."

Access the complete opinion (click here). Access a release from Earthjustice (click here).

Wednesday, May 14, 2008

Beazer East, Inc. v. Mead Corporation

May 13: In the U.S. Court of Appeals, Third Circuit, Case No. 06-4993. The Appeals Court explains that this is the third appeal in this long-running contribution claim under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). After the second appeal was decided, defendant Mead moved for judgment for failure to state a claim or for lack of subject-matter jurisdiction. The District Court denied the motions, but certified a controlling question of law under 28 U.S.C. § 1292(b) raising the issue of whether the effect of Cooper Indus. v. Aviall Servs., Inc., 543 U.S. 157 (2004), is to deny subject-matter jurisdiction over plaintiff Beazer’s contribution claims under § 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1). Also implicated is the denial of Mead’s motion to dismiss for failure to state a claim under § 113(f)(1).

The Appeals Court ruled, "We conclude that the District Court has subject-matter jurisdiction. We will also affirm the denial of the motion for judgment on the pleadings and will remand for further proceedings."

In this on-going case, Mead filed this interlocutory appeal. After it was docketed and the briefs were filed, but before oral argument, the Supreme Court decided United States v. Atlantic Research Corp., 127 S. Ct. 2331 (June 11, 2007), holding that a “potentially responsible party” (PRP) may recover against another PRP for cleanup costs under § 107(a) [
See WIMS 6/12/07]. Mead contends that because the § 107 claim was dismissed in 1996 by the District Court, Beazer’s only remaining means of recovery is under § 113(f)(1), a claim that is fatally flawed in light of Cooper. Mead argues that because Beazer has not “been sued under § 106 or § 107(a) . . . [it may not] obtain contribution under § 113(f)(1) from other liable parties.”

In its conclusion, the Appeals Court said, "We do not lightly invoke waiver, but as the Supreme Court has cautioned, '[t]here must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from.' Ackermann v. United States, 340 U.S. 193, 198 (1950). This case has been ongoing since 1991. Mead’s liability under § 113(f)(1) was established by the time of the District Court’s orders in 2002 – well before this Court’s June 23, 2005, opinion in Beazer II. Allowing Mead to renew its argument at this late point in the litigation would seriously impair the finality of the rulings of this Court and the District Court. Mead must live by its long-standing and considered decision not to pursue its § 113(f) objection.

"We agree with the District Court that Mead waived its challenge to the applicability of § 113(f)(1) and the Court has subject-matter jurisdiction. Accordingly, we again remand this case to the District Court to hold an equitable allocation proceeding in accordance with Beazer II."

Access the complete opinion (
click here).

Monday, May 12, 2008

Sierra Club v. Flowers (Army Corps)

May 9: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-13297. Sierra Club brought the action against the Army Corps of Engineers (Corps) after the Corps granted Rinker Materials and other mining concerns (Miners) Clean Water Act (CWA) permits. The Miners sought to extract high-quality limestone from the “Lake Belt” area -- a stretch of 60,000 acres of wetlands between the Florida Everglades and the northwest edge of metropolitan Miami. To mine the Lake Belt wetlands, however, the Miners had to first secure CWA permits from the Corps. The Corps, in reviewing whether to issue permits, had to follow procedures required by the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), and CWA. After the Corps granted the permits, Sierra Club brought suit, alleging that in granting the permits the Corps performed its NEPA, ESA, and CWA duties arbitrarily and capriciously in violation of the Administrative Procedure Act (APA). The Miners intervened as defendants, and all parties moved for summary judgment. The district court granted the Appellees’ motion
and found that, for numerous reasons, the Miners’ permits were due to be vacated.

The Appeals Court said, "After reviewing the voluminous record, reading the parties’ briefs, and having the benefit of oral argument, we vacate the district court’s grant of summary judgment and remand this case to the district court to apply the proper APA standard of review to the Corps’s environmental analysis." A two Justice majority ruled further, "The district court seems to have predetermined the answer to the ultimate issue, concluding that the Corps should not permit mining in the Lake Belt, and analyzed the permitting process with that answer in mind. . . In other words, no matter what the Corps concluded, and no matter what evidence supported that conclusion, the court would have banned mining because of its own conclusion that mining in the Lake Belt is a bad thing. . . The discretion to grant or deny CWA permits, however, is first given to federal agencies, not federal courts. Again, we offer no opinion as to whether the Corps complied with NEPA or the CWA during the permitting process. We instead remand to the district court to answer those questions in the first instance, applying the proper standard of review. The APA-CWA judgment, the APA-NEPA judgment, and the Remedies Order are vacated, and the case is remanded for further proceedings consistent with this opinion."

A concurring in part and dissenting in part opinion, the minority Justice said, "Although I agree with much of the majority’s opinion, I must respectfully dissent from its judgment. Specifically, I agree that we have jurisdiction, that the Endangered Species Act claim was mooted, and that the district court’s NEPA analysis was erroneous. But I would affirm the district court’s disposition of the Clean Water Act claim, as well as its remedial decisions. . . I believe the district court correctly determined that the Corps violated the Clean Water Act in the permitting process, I would affirm on that basis the district court’s judgment vacating the permits. . . Although the district court made some misstatements of law in its CWA analysis, I believe they are harmless error and that the record contains a sufficient basis to affirm the judgment. . ."

Access the complete opinion (
click here).

Tuesday, May 6, 2008

OSI, Inc. v. U.S.

May 5: In the U.S. Court of Appeals, Eleventh Circuit, case No. 07-10941. As explained by the Appeals Court, OSI, Inc. (OSI) appealed, for the second time, the grant of summary judgment in favor of the Government on OSI’s claims relating to the Air Force’s use of certain land -- including, in part, land now owned by OSI -- as a landfill during the 1960s, 1970s, and 1980s. OSI brought tort claims under the Federal Tort Claims Act (FTCA), claims of cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and a citizen suit under the Resource Conservation Recovery Act (RCRA). The district court granted summary judgment in favor of the Government on all claims and the Appeals Court agreed and affirmed that decision.

The Appeals Court said, According to the Government, because there is an ongoing CERCLA remedial action taking place, CERCLA bars challenges (including a RCRA citizen suit) to the ongoing cleanup. Because we agree with the Government, we do not reach the merits of the summary judgment question. The Eleventh Circuit concluded, "The district court lacked jurisdiction to hear OSI’s RCRA citizen suit claim while the federal facility remedial action was ongoing. Because the remaining aspects of OSI’s appeal are without merit, the district court’s grant of summary judgment is affirmed."

Access the complete opinion (
click here).

Monday, May 5, 2008

Weavers Cove Energy v. RI Department of Environmental Management

May 2: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1235, consolidated with 07-1238. The cases involve key dredging permits in Massachusetts and Rhode Island According to the Appeals Court, Weaver’s Cove Energy, LLC (WCE) applied to the Rhode Island Department of Environmental Management (RIDEM) and the Massachusetts Department of Environmental Protection (MassDEP) for “certifications” that its proposed dredge-and-fill operations would comply with the Federal Clean Water Act (CWA). When a year had passed without the State agencies having issued final determinations one way or the other, WCE petitioned this court for review of their inaction, seeking a declaration that the States had “waived” their right to deny the requested certifications. The D.C Circuit said, "Instead, we must dismiss the petitions for want of a case or controversy under Article III of the Constitution of the United States."

The Appeals Court states that, under § 401(a)(1) of the CWA, 33 U.S.C. § 1341(a)(1), an applicant for any federal permit that “may result in any discharge into the navigable waters” of the United States -- such as a dredge-and-fill permit from the Army Corps -- “shall provide the ... permitting agency a certification from the State in which the discharge originates ... that any such discharge will comply with the applicable provisions” of the Act. For the State to participate in the regulatory process, it must act expeditiously: “[I]f the State ... fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements ... shall be waived with respect to such Federal

Despite numerous claims and charges in defense of the State, the Appeals Court ruled, "We reach none of the States’ arguments, for we conclude sua sponte that WCE does not have standing to sue the States; the court therefore lacks jurisdiction over WCE’s petitions." The Appeals Court claims that WCE, in its standing defense, "does not claim to have been injured by it. On the contrary, WCE’s theory of the case is that it benefited from the agencies’ inaction; that is, the agencies, by failing to issue timely rulings on WCE’s applications, waived their rights to deny the certifications WCE seeks." The D.C. Circuit concludes, "In sum, WCE has not shown an injury caused by the state agencies that likely would be redressed by the declaration it seeks. We are therefore without jurisdiction over its petitions for review, which are, accordingly, dismissed."

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click here).

Islander East Pipeline Co. v. McCarthy

May 2: In the U.S. Court of Appeals, Second Circuit, Case No. 06-5764. The Appeals Court denied a petition for review by Islander East Pipeline Company, LLC, who needed a water quality certification from the State of Connecticut Department of Environmental Protection (CTDEP) in order to secure Federal approval to build a natural gas pipeline across Long Island Sound. Islander East contended that the State's second denial of the certification was arbitrary and capricious.

The Appeals Court notes, citing previous decisions, that while the Natural Gas Act (NGA) generally preempts local permit and licensing requirements, the Clean Water and Coastal Zone Management Acts are notable in effecting a Federal-state partnership to ensure water quality and coastal management around the country, so that state standards approved by the Federal government become the federal standard for that state. Under the Clean Water Act, state water quality standards approved by U.S. EPA becomes ‘the water quality standard for the applicable waters of that State. Consistent with that scheme, the two Acts require applicants for Federal permits to provide Federal licensing agencies such as the FERC [Federal Energy Regulatory Commission] with certifications from affected states confirming compliance with local standards.

In a 2-1 decision, the Appeals Court concluded, "To summarize, Islander East’s proposed installation of a natural gas pipeline from Connecticut to New York across Long Island Sound must comport with various statutes, including the Clean Water Act. The Clean Water Act requires Islander East to procure from the CTDEP a certification that the proposed pipeline will comply with state water quality standards. Record evidence supports the CTDEP’s finding that various techniques to be employed by Islander East in installing the proposed pipeline would violate state water quality standards by eliminating a significant area of nearshore waters from their existing and designated use of shellfishing. On such a record, we cannot conclude that the CTDEP’s decision to deny Islander East a certificate of compliance was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' Islander East’s petition for review is denied."

Access the complete opinion (
click here).