Tuesday, June 10, 2008

Norton Construction v. U.S. Army Corps

Jun 2: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-3826. The appeal involved plaintiff Norton Construction Company’s application for a permit to construct a new landfill in an area subject to defendant United States Army Corps of Engineers’ jurisdiction. The Corps refused to process the application, citing a Congressional appropriation act that the Corps construed as forbidding it from processing applications for new landfills in the area that it considered to be within the Muskingum Watershed. Norton unsuccessfully challenged the decision in district court. The district court ruled that the Corps reasonably interpreted the statute and that the law did not violate Norton’s constitutional rights. Norton appealed the decision and the Sixth Circuit affirmed the district court decision.

Norton applied for a Section 404 permit, but the Corps returned the application without acting upon it because Congress enacted a temporary appropriations rider, which in the opinion of the Corps, prohibited the Corps from processing its application. Subsequently, Congress passed and the President signed the Energy and Water Development Appropriations Act of 2006, Pub. L. No. 109-103, 119 Stat. 2247 (2005). Section 103 of the Act, enacted as a regular appropriations statute rather than as a temporary appropriations rider, prohibited the Corps from granting new landfill applications, "In order to protect and preserve the integrity of the water supply against further degradation," in the “Muskingum Watershed.”

The Appeals Court indicates that the case was made more difficult by its "ever-changing legal landscape." At first, by means of a temporary appropriations rider, Congress prohibited the processing of new landfill applications in the area of the Muskingum Watershed. Later, Congress reenacted this prohibition as part of a nonexpiring appropriations statute, thus prompting the current suit. Finally, while the present appeal was pending, Congress acted yet again by passing the Consolidated Appropriations Act of 2008. The Appeals Court explains that under different arguments it would still affirm the district court ruling and concludes "that declaring the case moot and again remanding for reconsideration in light of the latest statute would be a futile exercise and a needless waste of valuable judicial resources."

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