Jul 30: In the U.S. Court of Appeals, Second Circuit, Case Nos. 07-3454 & 07-3462. The case is appealed from a judgment of the U.S. District Court for the Northern District of New York granting summary judgment for Defendants-Appellees on all of Plaintiffs-Appellants’ claims in a suit alleging that Defendants-Appellees’ large dairy operation emitted hazardous pollutants in violation of the Clean Water Act (CWA).
The Appeals Court ruled that the Plaintiffs-Appellants, a group of neighbors, waived their claim as to any CWA violations before July 1999, that the CWA permit shield provision prohibited this action as to any claims between July 1999 and December 2006, and that Plaintiffs-Appellants’ Resource Conservation and Recovery Act (RCRA)claims were prohibited under that statute’s "non-duplication provisions." Additionally, the Appeals Court said, ". . .we join other circuits in concluding that Defendants-Appellees did not need a permit to construct a stock pond on land already in use for farming under 33 U.S.C. § 1344(f)(2). Accordingly, the judgment of the District Court granting summary judgment on all of Plaintiffs-Appellants’ claims is affirmed."
Plaintiffs had brought the citizen suit claiming that Willet Dairy violated the Clean Water Act by failing to manage its animal waste and silage leachate properly, and otherwise causing environmental and public health hazards. They charged that: (1) Willet Dairy operated without a permit prior to July 1999 in violation of the CWA, (2) Willet Dairy discharged pollutants into navigable waterways after July 1999 in violation of its permit and the CWA, (3) Willet Dairy’s operations violated the Resource Conservation and Recovery Act of 1976 (RCRA), and (4) Willet Dairy diverted Schaeffer Brook without a permit in violation of the CWA.
On the first charge, the Appeals Court said Appellants failed to raise this claim properly before the District Court, and therefore it was deemed it waived. Additionally, if Appellants had sufficiently argued the claim below, Willet Dairy’s failure to have a permit before July 1999 is a “wholly past violation,” which cannot be the subject of a CWA citizen suit, and the Dairy has had permit coverage under New York Department of Environmental Conservation’s general permit since July 1999.
On the second charge, the Appeals Court said the “permit shield,” embodied in 33 U.S.C. § 1342(k), protects a CWA permit holder from facing suits challenging the adequacy of its permit. The Appeals Court said, ". . .compliance with an authorized permit is deemed compliance with CWA, so as long as Willet Dairy was acting in accordance with its permit it could not be liable in a citizen suit for CWA violations.
On the third charge, the Appeals Court said, ". . . RCRA establishes a regulatory scheme for the treatment, disposal, and storage of solid and hazardous wastes. . . The RCRA also provides that '[n]othing in this chapter shall be construed to apply to . . . any activity or substance which is subject to the [CWA] . . . except to the extent that such application (or regulation) is not inconsistent with the requirements of [the 10 CWA].' 42 U.S.C. § 6905(a). Appellants’ RCRA claims are based on the same activities and substances that the CWA covers.
On the last issue regarding the diversion of Schaeffer Brook to create a stock pond, which allegedly caused harm to ponds and streams on Appellants’ properties, the Appeals Court said, "This is a new issue for our Circuit and thus we write to clarify our position." The Appeals Court said in December 1999, Willet Dairy diverted the upstream reach of the Schaeffer Brook without contacting the Corps, however, when it sought a "jurisdictional determination" from the Corps on whether it needed a permit, the Corps said it did not have jurisdiction over the pond project because of the exception to Section 1344(a) that allows a party to proceed without a permit if diverting the navigable water is “for the purpose of construction or maintenance of farm or stock ponds. . . ”
However, the Appeals Court notes that there is an exception to this exemption, called the “recapture provision,” which requires a permit if the diversion project is for the purpose of bringing an area “into a use to which it was not previously subject.” Appellants contended that the diversion was for a "new" pond, and a "new" use, so the activity should fall within the "recapture provision." The Appeals Court said, "Other courts have, however, interpreted the recapture provision to mean that a party needs a permit only when it is starting a new farming operation, not when it is building a new pond to support an existing farming operation. . . We agree for substantially the reasons stated by these courts. Any other reading would make the statute incoherent. Given that Section 1344(f)(1)(C) provides a permit exemption for the construction of a stock pond, which is by definition new, that section would be rendered meaningless by an interpretation of the recapture provision that required permits for all new uses, including new ponds. Moreover, even if there was ambiguity over the scope of the recapture provision, we would give deference to the agency interpretation that the recapture provision did not apply in this instance."
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Thursday, July 31, 2008
Thursday, July 24, 2008
Northwest Environmental Advocates v. U.S. EPA
Jul 23: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 03-74795, 06-17187, 06-17188. Plaintiffs in this case are Northwest Environmental Advocates, San Francisco Baykeeper, and The Ocean Conservancy. Plaintiffs-intervenors are the States of Illinois, Michigan, Minnesota, New York, Pennsylvania, and Wisconsin. Plaintiffs and plaintiffs-intervenors challenge a regulation originally promulgated by U.S. EPA in 1973 exempting certain marine discharges from the permitting scheme of sections 301(a) and 402 of the Clean Water Act (CWA). The Shipping Industry Ballast Water Coalition was an intervenor on behalf of EPA.
That regulation, 40 C.F.R. § 122.3(a), provides that the following vessel discharges into the navigable waters of the United States do not require permits: discharge of effluent from properly functioning marine engines; discharge of laundry, shower, and galley sink wastes from vessels; and any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water. The district court concluded that EPA had exceeded its authority under the CWA in exempting these discharges from permitting requirements and vacated § 122.3(a), effective September 30, 2008 [See WIMS 9/19/06]. The Appeals Court affirm the decision of the district court.
The Ninth Circuit notes in its decision, "The district court’s order requires the EPA to perform a substantial task -- to bring the discharges previously exempted by § 122.3(a) within the permitting process of the CWA. Neither the district court nor this court underestimates the magnitude of the task. . .
"The EPA informed this court at oral argument that it has been proceeding in accordance with the district court’s order. We anticipate that in formulating a new regulation to replace § 122.3(a) the EPA will take advantage of the flexibility of the NPDES permitting process. For example, we take judicial notice of the fact that, in its request for comments, the EPA has indicated that “use of general permit(s) would appear to be an attractive possibility.” Development of [NPDES] Permits for Discharges Incidental to the Normal Operation of Vessels, 72 Fed. Reg. 34,241, 34,247 (June 21, 2007).
"On July 11, 2008, the Department of Justice informed us by letter that on June 17, 2008, the EPA published in the Federal Register draft “General Permits for Discharges Incidental to the Normal Operation of a Vessel,” and that the public comment period on the draft is scheduled to close on August 1. See 73 Fed. Reg. 34,296 (June 17, 2008). The letter warns that a final version may not be ready by the September 30, 2008, deadline established by the district court, but the letter stops short of a request to extend the deadline. If the government chooses to request an extension of the deadline, that request should be addressed to the district court.
The Healing Our Waters-Great Lakes (HOW) Coalition issued a statement on the decision saying, “We applaud the court for upholding Clean Water Act’s jurisdiction over the release of ballast water discharges into the Great Lakes and other U.S. waters. Unfortunately, the EPA has put forward a weak permit that will not fully protect the Great Lakes or other U.S. waters from the threat of aquatic invasive species. Congress has now, at its disposal, a strong bill that contains the national protections that people, businesses and cities have been seeking for years. It’s time that Congress act now to provide the millions of people who rely on the Great Lakes and our nation’s other great waters with the security of knowing that we have finally slammed the door on invasive species introduced by ballast water. We urge federal leaders to act now to protect our lakes, our public health, our economy and our way of life. Delay will only make the problem worse and the solution more costly.”
The decision comes during a flurry of action on ballast water and vessel discharge regulatory activity. The House has approved and the Senate is about to vote on the Coast Guard Authorization Act (H.R. 2830) which would require ocean vessels coming to any U.S. port to install treatment technology to clean their ballast water by as early as next year [See WIMS 7/16/08]. Further, EPA has proposed its Vessel General Permit (VGP) for All Commercial Vessels and Large Recreational Vessels (79 feet or longer) incorporates the Coast Guard’s mandatory ballast water management and exchange standards and supplemental ballast water requirements for vessels that carry ballast water.
Access the complete 39-page opinion (click here). Access the statement from HOW (click here). Access legislative details for H.R. 2830 (click here). Access the U.S. EPA’s draft general permits and pertinent information about the permits (click here).
That regulation, 40 C.F.R. § 122.3(a), provides that the following vessel discharges into the navigable waters of the United States do not require permits: discharge of effluent from properly functioning marine engines; discharge of laundry, shower, and galley sink wastes from vessels; and any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water. The district court concluded that EPA had exceeded its authority under the CWA in exempting these discharges from permitting requirements and vacated § 122.3(a), effective September 30, 2008 [See WIMS 9/19/06]. The Appeals Court affirm the decision of the district court.
The Ninth Circuit notes in its decision, "The district court’s order requires the EPA to perform a substantial task -- to bring the discharges previously exempted by § 122.3(a) within the permitting process of the CWA. Neither the district court nor this court underestimates the magnitude of the task. . .
"The EPA informed this court at oral argument that it has been proceeding in accordance with the district court’s order. We anticipate that in formulating a new regulation to replace § 122.3(a) the EPA will take advantage of the flexibility of the NPDES permitting process. For example, we take judicial notice of the fact that, in its request for comments, the EPA has indicated that “use of general permit(s) would appear to be an attractive possibility.” Development of [NPDES] Permits for Discharges Incidental to the Normal Operation of Vessels, 72 Fed. Reg. 34,241, 34,247 (June 21, 2007).
"On July 11, 2008, the Department of Justice informed us by letter that on June 17, 2008, the EPA published in the Federal Register draft “General Permits for Discharges Incidental to the Normal Operation of a Vessel,” and that the public comment period on the draft is scheduled to close on August 1. See 73 Fed. Reg. 34,296 (June 17, 2008). The letter warns that a final version may not be ready by the September 30, 2008, deadline established by the district court, but the letter stops short of a request to extend the deadline. If the government chooses to request an extension of the deadline, that request should be addressed to the district court.
The Healing Our Waters-Great Lakes (HOW) Coalition issued a statement on the decision saying, “We applaud the court for upholding Clean Water Act’s jurisdiction over the release of ballast water discharges into the Great Lakes and other U.S. waters. Unfortunately, the EPA has put forward a weak permit that will not fully protect the Great Lakes or other U.S. waters from the threat of aquatic invasive species. Congress has now, at its disposal, a strong bill that contains the national protections that people, businesses and cities have been seeking for years. It’s time that Congress act now to provide the millions of people who rely on the Great Lakes and our nation’s other great waters with the security of knowing that we have finally slammed the door on invasive species introduced by ballast water. We urge federal leaders to act now to protect our lakes, our public health, our economy and our way of life. Delay will only make the problem worse and the solution more costly.”
The decision comes during a flurry of action on ballast water and vessel discharge regulatory activity. The House has approved and the Senate is about to vote on the Coast Guard Authorization Act (H.R. 2830) which would require ocean vessels coming to any U.S. port to install treatment technology to clean their ballast water by as early as next year [See WIMS 7/16/08]. Further, EPA has proposed its Vessel General Permit (VGP) for All Commercial Vessels and Large Recreational Vessels (79 feet or longer) incorporates the Coast Guard’s mandatory ballast water management and exchange standards and supplemental ballast water requirements for vessels that carry ballast water.
Access the complete 39-page opinion (click here). Access the statement from HOW (click here). Access legislative details for H.R. 2830 (click here). Access the U.S. EPA’s draft general permits and pertinent information about the permits (click here).
CleanCOALition v. TXU Power
Jul 21: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-50685. According to the Fifth Circuit, the case is one of first impression and involves the scope of citizen-suit jurisdiction under the Clean Air Act (CAA). Plaintiffs-Appellants filed suit to enjoin Defendants-Appellees from constructing a pulverized coalfired power plant in their community, alleging various violations of the CAA preconstruction permit process. The district court dismissed the case on the ground that, "inter alia, neither of the asserted bases for subject matter jurisdiction, §§ 7604(a)(1) and 7604(a)(3), provides for jurisdiction in this case." The Appeals Court affirmed the judgment of the district court.
The Appeals Court concluded, "The district court held that § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so. Instead, the district court interpreted that section as authorizing citizen suits when an entity proposes to construct or constructs a facility without a permit whatsoever. We agree with the district court’s interpretation. Appellants interpret the phrase 'without a permit' to mean 'without a permit that complies with the CAA.' However, we decline to rewrite the plain language of the statute. Here, not only has TXU applied for a permit, it has since successfully obtained one, though still subject to state judicial review. Thus, it can hardly be said -- as Appellants must in order for §7604(a)(3) to apply -- that TXU is proposing to construct or constructing a facility 'without a permit.' . . . In short, we agree with the district court that § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so."
Access the complete opinion (click here).
The Appeals Court concluded, "The district court held that § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so. Instead, the district court interpreted that section as authorizing citizen suits when an entity proposes to construct or constructs a facility without a permit whatsoever. We agree with the district court’s interpretation. Appellants interpret the phrase 'without a permit' to mean 'without a permit that complies with the CAA.' However, we decline to rewrite the plain language of the statute. Here, not only has TXU applied for a permit, it has since successfully obtained one, though still subject to state judicial review. Thus, it can hardly be said -- as Appellants must in order for §7604(a)(3) to apply -- that TXU is proposing to construct or constructing a facility 'without a permit.' . . . In short, we agree with the district court that § 7604(a)(3) does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so."
Access the complete opinion (click here).
Monday, July 21, 2008
Defenders of Wildlife v. Gutierrez (Commerce Dept.)
Jul 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5278. This case concerns the North Atlantic right whale (Eubalaena glacialis) (right whale) and the role of National Marine Fisheries Service (NMFS) and the Coast Guard in the Federal government’s efforts to protect the species from extinction. Appellants, composed of several environmental groups and one whale researcher, challenged NMFS’s denial of a petition for emergency rulemaking and the Coast Guard’s failure to consider the impact of some of its actions on the right whale. The district court granted summary judgment to the agencies. The Appeals Court affirmed the district court’s grant of summary judgment to the agencies on the challenge to the petition denial but reversed its summary judgment order relating to the Coast Guard’s actions. The case is remanded to the district court for further proceedings.
Appellants challenge the Coast Guard’s actions regarding a "traffic separation scheme process" as violations of ESA sections 7(a)(1), 7(a)(2), and 9. 16 U.S.C. §§ 1536(a)(1), (a)(2), 1538. The district court dismissed this challenge, concluding that the International Maritime Organization, a multinational body, adopted the traffic separation schemes at issue, not the Coast Guard. The parties dispute whether “agency action” or “final agency action” is required in order to bring suit under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g), based on a violation of ESA section 7(a)(2)’s consultation requirement. Appellants extract a simple “agency action” requirement from the text of ESA section 7(a)(2), which speaks only to “agency action.” Appellees argue that the “final agency action” requirement in the second clause of the Administrative Procedure Act should be read into ESA section 7(a)(2). See 5 U.S.C. § 704. The Appeals Court said, "We find it unnecessary to resolve this issue because we hold that appellants are challenging final agency action by the Coast Guard.
The Appeals Court says that the record shows "quite a different role for the Coast Guard in this process. Most significantly, the Coast Guard is the sole body charged with the duty of promulgating traffic separation schemes. . . traffic separation schemes would normally have recourse under the citizen-suit provision of the Endangered Species Act, 16 U.S.C. § 1540(g), or the Administrative Procedure Act. But if the Coast Guard delegates its responsibility for traffic separation schemes to the International Maritime Organization, and if we accept this delegation as relieving the Coast Guard of any responsibility for them, no such recourse is available."
The Appeals Court rules, ". . . appellants have presented evidence of final agency action in this case. . . Accordingly, appellants have demonstrated final agency action, and the district court erred in granting summary judgment to appellees based on its conclusion that it lacked subject matter jurisdiction."
Groups involved in the lawsuit said it was a major decision in the ongoing battle to save the world's last remaining North Atlantic right whales. The groups included Defenders of Wildlife, The Humane Society of the United States, Ocean Conservancy and other whale advocates. They said the Court ordered the Coast Guard to review the impact of shipping traffic lanes on endangered whales which they say is a crucial step towards altering shipping lanes to stop ship strikes in critically endangered right whale habitat.
Robert Dreher, vice president of conservation law for Defenders of Wildlife said, “We applaud the court’s decision. Ship collisions are the greatest threat to the survival of the right whale, so ensuring that the Coast Guard protects the whale in setting shipping lanes is a great conservation victory.” They said ship strikes are the leading cause of injuries and mortalities to the critically endangered North Atlantic right whale. Vessel strikes are known to kill or injure a minimum of three whales each year on the East Coast, and a number of ship strikes are believed to go unreported. Only about 350 North Atlantic right whales remain in existence.
Access the Appeals Court ruling (click here). Access a release from Defenders with links to additional information (click here).
Appellants challenge the Coast Guard’s actions regarding a "traffic separation scheme process" as violations of ESA sections 7(a)(1), 7(a)(2), and 9. 16 U.S.C. §§ 1536(a)(1), (a)(2), 1538. The district court dismissed this challenge, concluding that the International Maritime Organization, a multinational body, adopted the traffic separation schemes at issue, not the Coast Guard. The parties dispute whether “agency action” or “final agency action” is required in order to bring suit under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g), based on a violation of ESA section 7(a)(2)’s consultation requirement. Appellants extract a simple “agency action” requirement from the text of ESA section 7(a)(2), which speaks only to “agency action.” Appellees argue that the “final agency action” requirement in the second clause of the Administrative Procedure Act should be read into ESA section 7(a)(2). See 5 U.S.C. § 704. The Appeals Court said, "We find it unnecessary to resolve this issue because we hold that appellants are challenging final agency action by the Coast Guard.
The Appeals Court says that the record shows "quite a different role for the Coast Guard in this process. Most significantly, the Coast Guard is the sole body charged with the duty of promulgating traffic separation schemes. . . traffic separation schemes would normally have recourse under the citizen-suit provision of the Endangered Species Act, 16 U.S.C. § 1540(g), or the Administrative Procedure Act. But if the Coast Guard delegates its responsibility for traffic separation schemes to the International Maritime Organization, and if we accept this delegation as relieving the Coast Guard of any responsibility for them, no such recourse is available."
The Appeals Court rules, ". . . appellants have presented evidence of final agency action in this case. . . Accordingly, appellants have demonstrated final agency action, and the district court erred in granting summary judgment to appellees based on its conclusion that it lacked subject matter jurisdiction."
Groups involved in the lawsuit said it was a major decision in the ongoing battle to save the world's last remaining North Atlantic right whales. The groups included Defenders of Wildlife, The Humane Society of the United States, Ocean Conservancy and other whale advocates. They said the Court ordered the Coast Guard to review the impact of shipping traffic lanes on endangered whales which they say is a crucial step towards altering shipping lanes to stop ship strikes in critically endangered right whale habitat.
Robert Dreher, vice president of conservation law for Defenders of Wildlife said, “We applaud the court’s decision. Ship collisions are the greatest threat to the survival of the right whale, so ensuring that the Coast Guard protects the whale in setting shipping lanes is a great conservation victory.” They said ship strikes are the leading cause of injuries and mortalities to the critically endangered North Atlantic right whale. Vessel strikes are known to kill or injure a minimum of three whales each year on the East Coast, and a number of ship strikes are believed to go unreported. Only about 350 North Atlantic right whales remain in existence.
Access the Appeals Court ruling (click here). Access a release from Defenders with links to additional information (click here).
Friday, July 18, 2008
Burlison v. USA
Jul 17: In the U.S. Court of Appeals, Sixth Circuit, Case No. 06-6369. The case concerns an appeal by the United States from a district-court decision holding that landowners in Tennessee possess an easement over a field-access road that traverses the Lower Hatchie National Wildlife Refuge. The landowners (Plaintiffs-Appellees) sought to quiet title to the access road pursuant to the Quiet Title Act, 28 U.S.C. § 2409a, and the U.S. District Court for the Western District of Tennessee entered judgment in their favor. The United States also appeals the district court’s holding that the National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. § 668dd, as amended, does not give Congress or the United States Fish and Wildlife Service the authority to regulate Plaintiffs-Appellees’ easement, which “predate[d] the Government’s ownership of the servient tenement.” Burlison v. United States, (W.D. Tenn. Aug. 31, 2006).
The Appeals Court said, "We agree that Plaintiffs-Appellees have an easement by reservation over the field-access road. We also hold, however, that the federal government has the power under 16 U.S.C. § 668dd(d)(1)(b), enacted pursuant to the Property Clause, to regulate in a reasonable manner Plaintiffs-Appellees’ use of their easement. Therefore, the Sixth Circuit affirmed the judgment of the district court in part and reversed in part.
The Appeals Court ruled further saying, "We note that remand is not appropriate at this time because Plaintiffs-Appellees have refused to apply for the Special Use Permit required by the Fish and Wildlife Service. For this same reason, we express no opinion on the reasonableness of any current or future restriction or regulation on Plaintiffs-Appellees’ use of the easement, as that question is not properly before us at this time, but is instead a question to be decided on the basis of the permit. Once Plaintiffs-Appellees apply for this permit, in the case that it is denied or in the case that Plaintiffs-Appellees find the restrictions set forth under the permit to be unreasonable, they can bring suit in federal district court to challenge the reasonableness of the regulations imposed by the Fish and Wildlife Service."
Access the complete opinion (click here).
The Appeals Court said, "We agree that Plaintiffs-Appellees have an easement by reservation over the field-access road. We also hold, however, that the federal government has the power under 16 U.S.C. § 668dd(d)(1)(b), enacted pursuant to the Property Clause, to regulate in a reasonable manner Plaintiffs-Appellees’ use of their easement. Therefore, the Sixth Circuit affirmed the judgment of the district court in part and reversed in part.
The Appeals Court ruled further saying, "We note that remand is not appropriate at this time because Plaintiffs-Appellees have refused to apply for the Special Use Permit required by the Fish and Wildlife Service. For this same reason, we express no opinion on the reasonableness of any current or future restriction or regulation on Plaintiffs-Appellees’ use of the easement, as that question is not properly before us at this time, but is instead a question to be decided on the basis of the permit. Once Plaintiffs-Appellees apply for this permit, in the case that it is denied or in the case that Plaintiffs-Appellees find the restrictions set forth under the permit to be unreasonable, they can bring suit in federal district court to challenge the reasonableness of the regulations imposed by the Fish and Wildlife Service."
Access the complete opinion (click here).
Salmon Spawning & Recovery Alliance v. U.S. Customs and Borders Protection
Jul 15: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-1444. The 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, Native Fish Society, and Clark-Skamania Flyfishers (collectively Salmon Spawning) appeal a final judgment of the Court of International Trade dismissing their complaint against various Federal agencies and officials (defendants) for lack of subject matter jurisdiction.
The complaint alleges that the defendants violated their duties under the ESA when they failed to enforce the ban on importing endangered and threatened salmon and steelhead into the United States and failed to consult with National Marine Fisheries Service regarding this lack of enforcement as required under section 7(a)(2) of the ESA. The Appeals Court concluded that the Court of International Trade erred in dismissing the case for lack of standing, and remanded the case 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.
The Appeals Court defines the two specific complaints in the case saying, their [plaintiffs] two-count complaint alleged: (1) “By allowing continued import of ESA-listed salmon and steelhead in violation of § 9 of ESA, the Defendants are jeopardizing the continued existence of the listed salmon and steelhead in violation of § 7(a)(2),” (the “section 9 claim”); and (2) that “it is arbitrary and capricious and not in accordance with law, in violation of the Administrative Procedure Act . . . and a violation of section 7 of the ESA, for the U.S. Customs and Border Protection and U.S. Fish & Wildlife Service to continue to allow the import into the United States of ESA-listed salmon caught in Canada without having completed the consultations required by section 7 of the ESA,” (the “section 7 claim”).
The Appeals Court notes that, "The issue of whether plaintiffs’ section 7 claim falls within the Court of International Trade’s exclusive jurisdiction, or instead should be brought in a district court, is one of first impression for this court and it raises difficult, novel issues concerning the scope of the Court of International Trade’s jurisdiction." In its conclusion, the Appeals Court says, "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."
Explaining further, the Appeals Court says, "If the Court of International Trade determines that the section 7 claim does not fall within its jurisdiction, it should transfer the case back to the District Court for the Western District of Washington. If it concludes that it does have jurisdiction over the claim, it should proceed with further proceedings consistent with this opinion."
Access the complete opinion (click here).
The complaint alleges that the defendants violated their duties under the ESA when they failed to enforce the ban on importing endangered and threatened salmon and steelhead into the United States and failed to consult with National Marine Fisheries Service regarding this lack of enforcement as required under section 7(a)(2) of the ESA. The Appeals Court concluded that the Court of International Trade erred in dismissing the case for lack of standing, and remanded the case 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.
The Appeals Court defines the two specific complaints in the case saying, their [plaintiffs] two-count complaint alleged: (1) “By allowing continued import of ESA-listed salmon and steelhead in violation of § 9 of ESA, the Defendants are jeopardizing the continued existence of the listed salmon and steelhead in violation of § 7(a)(2),” (the “section 9 claim”); and (2) that “it is arbitrary and capricious and not in accordance with law, in violation of the Administrative Procedure Act . . . and a violation of section 7 of the ESA, for the U.S. Customs and Border Protection and U.S. Fish & Wildlife Service to continue to allow the import into the United States of ESA-listed salmon caught in Canada without having completed the consultations required by section 7 of the ESA,” (the “section 7 claim”).
The Appeals Court notes that, "The issue of whether plaintiffs’ section 7 claim falls within the Court of International Trade’s exclusive jurisdiction, or instead should be brought in a district court, is one of first impression for this court and it raises difficult, novel issues concerning the scope of the Court of International Trade’s jurisdiction." In its conclusion, the Appeals Court says, "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."
Explaining further, the Appeals Court says, "If the Court of International Trade determines that the section 7 claim does not fall within its jurisdiction, it should transfer the case back to the District Court for the Western District of Washington. If it concludes that it does have jurisdiction over the claim, it should proceed with further proceedings consistent with this opinion."
Access the complete opinion (click here).
Tuesday, July 15, 2008
Oregon Natural Desert Association v. BLM
Jul 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-35931. The Appeals Court indicates that the Bureau of Land Management (BLM) is charged with managing “the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people.” That task, which the Supreme Court has characterized as “enormously complicated,” Norton v. Southern Utah Wilderness Alliance (SUWA), 542 U.S. 55, 58 (2004), requires careful planning. The issue in the case is whether the BLM complied with the requirements of the National Environmental Policy Act of 1969 (NEPA), when it developed a land use plan covering a large portion of Oregon.
The Oregon Natural Desert Association, Committee for the High Desert, and Western Watersheds Project (ONDA) contend that the BLM has not done so because it has failed (1) properly to analyze the effects of the plan on lands under its control possessing “wilderness characteristics”; and (2) properly to analyze management options for grazing and off-road vehicle use throughout the region covered by the plan. The district court granted summary judgment for the BLM, and the Appeals Court reversed and remanded to the district court with instructions to remand to the Bureau.
The Appeals Court concluded, "The EIS violated NEPA in the ways we have stated. We hold unlawful and set aside the ROD approving the EIS and the Southeast Oregon Plan. See 5 U.S.C. § 706(2). The BLM may not implement the Plan without remedying the gaps in the EIS. Having addressed the problems we have identified, the BLM may decide to make different choices. NEPA is not a paper exercise, and new analyses may point in new directions. As a result, although ONDA also raises concerns regarding alleged substantive and procedural flaws within the Plan, we do not reach those issues today. The problems it identifies
may never arise once the BLM has had a chance to see the choices before it with fresh eyes. We therefore remand to the district court with instructions to remand to the BLM to remedy the deficiencies we have discussed."
Access the complete 57-page opinion (click here).
The Oregon Natural Desert Association, Committee for the High Desert, and Western Watersheds Project (ONDA) contend that the BLM has not done so because it has failed (1) properly to analyze the effects of the plan on lands under its control possessing “wilderness characteristics”; and (2) properly to analyze management options for grazing and off-road vehicle use throughout the region covered by the plan. The district court granted summary judgment for the BLM, and the Appeals Court reversed and remanded to the district court with instructions to remand to the Bureau.
The Appeals Court concluded, "The EIS violated NEPA in the ways we have stated. We hold unlawful and set aside the ROD approving the EIS and the Southeast Oregon Plan. See 5 U.S.C. § 706(2). The BLM may not implement the Plan without remedying the gaps in the EIS. Having addressed the problems we have identified, the BLM may decide to make different choices. NEPA is not a paper exercise, and new analyses may point in new directions. As a result, although ONDA also raises concerns regarding alleged substantive and procedural flaws within the Plan, we do not reach those issues today. The problems it identifies
may never arise once the BLM has had a chance to see the choices before it with fresh eyes. We therefore remand to the district court with instructions to remand to the BLM to remedy the deficiencies we have discussed."
Access the complete 57-page opinion (click here).
Monday, July 14, 2008
D.C. Circuit Vacates Clean Air Interstate Rule Citing "Fatal Flaws"
Jul 11: In the case of State of North Carolina v. U.S. EPA, in the U.S. Court of Appeals, D.C. Circuit, Case Nos. No. 05-1244 consolidated with 31 other cases involving scores of attorneys. These consolidated petitions for review challenge various aspects of the Clean Air Interstate Rule (CAIR). The Appeals Court said, "Because we find more than several fatal flaws in the rule and the Environmental Protection Agency (EPA) adopted the rule as one, integral action, we vacate the rule in its entirety and remand to EPA to promulgate a rule that is consistent with this opinion."
By way of background the Court explains that like the NOx SIP Call, the Clean Air Interstate Rule -- Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call, 70 Fed. Reg.25,162 (May 12, 2005) (CIR”) -- is the rule at issue in these consolidated petitions for review. At issue in much of this litigation is the definition of the term “contribute significantly.” In other words, in order to promulgate CAIR, EPA had to determine what amount of emissions constitutes a “significant contribution” to another state’s nonattainment problem.
Recognizing that its actions will result in significant disruption of EPA Clean Air Act activities, the D.C. Circuit said, ". . . the threat of disruptive consequences cannot save a rule when its fundamental flaws 'foreclose EPA from promulgating the same standards on remand,' [citing Natural Res. Def. Council v. EPA, 489 F.3d 1250, 1261–62 (D.C. Cir. 2007).]
" We must vacate CAIR because very little will “survive[ ] remand in anything approaching recognizable form.” Id. at 1261. EPA’s approach -- regionwide caps with no state-specific quantitative contribution determinations or emissions requirements -- is fundamentally flawed. Moreover, EPA must redo its analysis from the ground up. It must consider anew which states are included in CAIR, after giving some significance to the phrase 'interfere with maintenance' in section 110(a)(2)(D), 42 U.S.C. § 7410(a)(2)(D). It must decide what date, whether 2015 or earlier, is as expeditious as practicable for states to eliminate their significant contributions to downwind nonattainment. The trading program is unlawful, because it does not connect states’ emissions reductions to any measure of their own significant contributions. To the contrary, it relates their SO2 reductions simply to their Title IV allowances, tampering unlawfully with the Title IV trading program. The SO2 regionwide caps are entirely arbitrary, since EPA based them on irrelevant factors like the existence of the Title IV program. The allocation of state budgets from the NOx caps is similarly arbitrary because EPA distributed allowances simply in the interest of fairness. It is possible that after rebuilding, a somewhat similar CAIR may emerge; after all, EPA already promulgated the apparently similar NOx SIP Call eight years ago. But as we have explained, the similarities with the NOx SIP Call are only superficial, and CAIR’s flaws are deep. No amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule. Of course the Federal Implementation Plan EPA imposed is intimately connected to CAIR, and we vacate the FIP as well.
The Appeals Court notes that, ". . .in the absence of CAIR, the NOx SIP Call trading program will continue, because EPA terminated the program only as part of the CAIR rulemaking. CAIR, 70 Fed. Reg. at 25,317 (codified at 40 C.F.R. § 51.121(r)). The continuation of the NOx SIP Call should mitigate any disruption that might result from our vacating CAIR at least with regard to NOx. In addition, downwind states retain their statutory right to petition for immediate relief from unlawful interstate pollution under section 126, 42 U.S.C. § 7426."
In its summary of the decision, the Appeals Court indicates, "To summarize, we grant the petitions of Entergy, SO2 Petitioners, and Minnesota Power. We grant North Carolina’s petition with respect to the 'interfere with maintenance' language, CAIR’s 2015 compliance date, and the unrestricted trading of allowances; we deny it with respect to EPA’s definition of 'will' in 'will contribute significantly,' and the PM2.5 contribution threshold. We deny the petitions of the Florida and Texas petitioners, and the Florida Association of Electric Utilities. Accordingly, we vacate CAIR and its associated FIP and remand both to the EPA."
In a release from Environmental Defense Fund (EDF) summarizing the ruling they said, “The government should take immediate corrective action to protect the millions of Americans hard hit by power plant pollution. Power plants must do their part to cut the smog that blankets our cities, the mercury that threatens our children’s development and the greenhouse gases that are recklessly warming the planet. Cost-effective solutions are at hand to protect human health and the environment from power plant pollution while ensuring the steady flow of affordable electricity. . .
"The court agreed with North Carolina that EPA must consider faster reductions that better reflect states’ obligations to restore healthy air and making pollution cuts that help prevent states from backsliding into non-compliance with health-based standards. The court also agreed with North Carolina that EPA must tailor pollution cuts in upwind states with the level of impacts wrought on downwind jurisdictions. The court also agreed with industry litigants that EPA erred in relying on or otherwise interfering with the allowance trading system established to address acid rain while affirming EPA’s broad remedial powers to require interstate air pollution abatement to protect human health. The court agreed with gas-based utilities that EPA unfairly credited coal-based utilities in designing the program. Finally, the court rejected utility claims seeking to exclude Florida and West Texas from the program."
Access the complete 60-page opinion (click here). Access a release from EDF (click here).
By way of background the Court explains that like the NOx SIP Call, the Clean Air Interstate Rule -- Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call, 70 Fed. Reg.25,162 (May 12, 2005) (CIR”) -- is the rule at issue in these consolidated petitions for review. At issue in much of this litigation is the definition of the term “contribute significantly.” In other words, in order to promulgate CAIR, EPA had to determine what amount of emissions constitutes a “significant contribution” to another state’s nonattainment problem.
Recognizing that its actions will result in significant disruption of EPA Clean Air Act activities, the D.C. Circuit said, ". . . the threat of disruptive consequences cannot save a rule when its fundamental flaws 'foreclose EPA from promulgating the same standards on remand,' [citing Natural Res. Def. Council v. EPA, 489 F.3d 1250, 1261–62 (D.C. Cir. 2007).]
" We must vacate CAIR because very little will “survive[ ] remand in anything approaching recognizable form.” Id. at 1261. EPA’s approach -- regionwide caps with no state-specific quantitative contribution determinations or emissions requirements -- is fundamentally flawed. Moreover, EPA must redo its analysis from the ground up. It must consider anew which states are included in CAIR, after giving some significance to the phrase 'interfere with maintenance' in section 110(a)(2)(D), 42 U.S.C. § 7410(a)(2)(D). It must decide what date, whether 2015 or earlier, is as expeditious as practicable for states to eliminate their significant contributions to downwind nonattainment. The trading program is unlawful, because it does not connect states’ emissions reductions to any measure of their own significant contributions. To the contrary, it relates their SO2 reductions simply to their Title IV allowances, tampering unlawfully with the Title IV trading program. The SO2 regionwide caps are entirely arbitrary, since EPA based them on irrelevant factors like the existence of the Title IV program. The allocation of state budgets from the NOx caps is similarly arbitrary because EPA distributed allowances simply in the interest of fairness. It is possible that after rebuilding, a somewhat similar CAIR may emerge; after all, EPA already promulgated the apparently similar NOx SIP Call eight years ago. But as we have explained, the similarities with the NOx SIP Call are only superficial, and CAIR’s flaws are deep. No amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule. Of course the Federal Implementation Plan EPA imposed is intimately connected to CAIR, and we vacate the FIP as well.
The Appeals Court notes that, ". . .in the absence of CAIR, the NOx SIP Call trading program will continue, because EPA terminated the program only as part of the CAIR rulemaking. CAIR, 70 Fed. Reg. at 25,317 (codified at 40 C.F.R. § 51.121(r)). The continuation of the NOx SIP Call should mitigate any disruption that might result from our vacating CAIR at least with regard to NOx. In addition, downwind states retain their statutory right to petition for immediate relief from unlawful interstate pollution under section 126, 42 U.S.C. § 7426."
In its summary of the decision, the Appeals Court indicates, "To summarize, we grant the petitions of Entergy, SO2 Petitioners, and Minnesota Power. We grant North Carolina’s petition with respect to the 'interfere with maintenance' language, CAIR’s 2015 compliance date, and the unrestricted trading of allowances; we deny it with respect to EPA’s definition of 'will' in 'will contribute significantly,' and the PM2.5 contribution threshold. We deny the petitions of the Florida and Texas petitioners, and the Florida Association of Electric Utilities. Accordingly, we vacate CAIR and its associated FIP and remand both to the EPA."
In a release from Environmental Defense Fund (EDF) summarizing the ruling they said, “The government should take immediate corrective action to protect the millions of Americans hard hit by power plant pollution. Power plants must do their part to cut the smog that blankets our cities, the mercury that threatens our children’s development and the greenhouse gases that are recklessly warming the planet. Cost-effective solutions are at hand to protect human health and the environment from power plant pollution while ensuring the steady flow of affordable electricity. . .
"The court agreed with North Carolina that EPA must consider faster reductions that better reflect states’ obligations to restore healthy air and making pollution cuts that help prevent states from backsliding into non-compliance with health-based standards. The court also agreed with North Carolina that EPA must tailor pollution cuts in upwind states with the level of impacts wrought on downwind jurisdictions. The court also agreed with industry litigants that EPA erred in relying on or otherwise interfering with the allowance trading system established to address acid rain while affirming EPA’s broad remedial powers to require interstate air pollution abatement to protect human health. The court agreed with gas-based utilities that EPA unfairly credited coal-based utilities in designing the program. Finally, the court rejected utility claims seeking to exclude Florida and West Texas from the program."
Access the complete 60-page opinion (click here). Access a release from EDF (click here).
Friday, July 11, 2008
Wilderness Workshop v. U.S. Bureau of Land Management
Jul 8: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-1165. Plaintiffs Wilderness Workshop, High Country Citizens’ Alliance, Western Colorado Congress, Western Slope Environmental Resource Council, Center for Biological Diversity, and Board of County Commissioners for Pitkin County (Colorado) filed suit challenging a decision by defendants, the U.S. Bureau of Land Management (BLM) and the United States Forest Service (Forest Service), authorizing defendant/intervenor SG Interests I, Ltd. (SG) to construct, operate, and maintain a natural gas pipeline through roadless national forest land. In connection with their suit, plaintiffs sought and were denied a preliminary injunction by the district court. Plaintiffs then filed an interlocutory appeal from the district court’s order denying their motion for preliminary injunction. The Appeals Court affirmed the decision of the district court in denying the preliminary injunction and granted the motions of the Colorado Oil and Gas Association, the Congress of Racial Equality, and Harold Shepherd to file amicus curiae briefs in the case.
In denying the preliminary injunction the Appeals Court said the plaintiffs only met one prong of a three prong test -- they "produced evidence that they will suffer some imminent and irreparable injuries if the pipeline construction begins;” however, the threatened injury to plaintiffs was equally balanced “against the weight of the public interest in gas production, and [SG’s] demonstrated economic interests;" and as the district court concluded the public interest factor did not weigh heavily in favor of either the plaintiffs or the defendants and [SG].
Access the complete opinion (click here). [*Land, *Energy]
In denying the preliminary injunction the Appeals Court said the plaintiffs only met one prong of a three prong test -- they "produced evidence that they will suffer some imminent and irreparable injuries if the pipeline construction begins;” however, the threatened injury to plaintiffs was equally balanced “against the weight of the public interest in gas production, and [SG’s] demonstrated economic interests;" and as the district court concluded the public interest factor did not weigh heavily in favor of either the plaintiffs or the defendants and [SG].
Access the complete opinion (click here). [*Land, *Energy]
Tuesday, July 8, 2008
American Wildlands v. Dirk Kempthorne (Interior Dept.)
Jul 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5179. As explained by the Appeals Court, the westslope cutthroat trout has historically inhabited rivers and streams across parts of Montana, Wyoming, Idaho, Oregon, and Washington. Its scientific name, Oncorhynchus clarki lewisi, pays homage to Lewis and Clark, the storied explorers who encountered the fish in 1805 at the Great Falls of the Missouri River. Plaintiffs maintain that interbreeding with other members of the trout family -- a phenomenon called hybridization -- has so imperiled the continued existence of the fish that the government should list it as threatened under the Endangered Species Act (ESA).
On appeal, plaintiffs argue that the government’s decision not to do so was arbitrary and capricious because the Agency included in its count of westslope cutthroat trout hybridized fish, which embodied the menace at issue. Plaintiffs also appeal the district court’s denial of their motion to supplement the record with letters supporting their case.
The D.C. Circuit said, "Although new data might require a future listing of the fish as threatened, we conclude the agency engaged in reasoned decisionmaking based on the best available science, and the district court did not abuse its discretion in refusing to supplement the record." The Appeals Court concluded, "Because American Wildlands has not shown that the Service’s decision to deny listing the westslope cutthroat trout as a threatened species was arbitrary or capricious, and because plaintiffs have not shown that the district court abused its discretion in denying the motion to supplement the record, we affirm the district court in all respects."
Access the complete opinion (click here).
On appeal, plaintiffs argue that the government’s decision not to do so was arbitrary and capricious because the Agency included in its count of westslope cutthroat trout hybridized fish, which embodied the menace at issue. Plaintiffs also appeal the district court’s denial of their motion to supplement the record with letters supporting their case.
The D.C. Circuit said, "Although new data might require a future listing of the fish as threatened, we conclude the agency engaged in reasoned decisionmaking based on the best available science, and the district court did not abuse its discretion in refusing to supplement the record." The Appeals Court concluded, "Because American Wildlands has not shown that the Service’s decision to deny listing the westslope cutthroat trout as a threatened species was arbitrary or capricious, and because plaintiffs have not shown that the district court abused its discretion in denying the motion to supplement the record, we affirm the district court in all respects."
Access the complete opinion (click here).
Monday, July 7, 2008
The Lands Council v. McNair (U.S. Forest Service)
Jul 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35000. The full panel of the Ninth Circuit (en banc) indicated that, "We took this case en banc to clarify some of our environmental jurisprudence with respect to our review of the actions of the United States Forest Service." The Lands Council and Wild West Institute (collectively, Lands Council) moved for a preliminary injunction to halt the Mission Brush Project (the Project), which called for the selective logging of 3,829 acres of forest in the Idaho Panhandle National Forest (IPNF) claiming the Government had failed to comply with the National Forest Management Act (NFMA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA), in developing and implementing the Project. The district court denied Lands Council’s motion for a preliminary injunction. A three-judge panel of the Ninth Circuit reversed the district court’s decision and remanded for entry of a preliminary injunction in Lands Council v. McNair, 494 F.3d 771 (9th Cir. 2007) [See WIMS 7/3/07]. The en banc Appeals Court vacated the 3-panel decision and affirmed the district court.
Unlike the 3-panel ruling which said the Lands Council ". . . demonstrated a probability of success on the merits and a possibility of irreparable injury [and] . . . further showed that the balance of hardships and the public interest favored granting the preliminary injunction. . ."; the en banc panel concluded, ". . . that Lands Council was not likely to succeed on any of its claims under the NFMA or NEPA. We also conclude that Lands Council has not shown that, if we allow the Forest Service to proceed with the Mission Brush Project, the balance of hardships tips sharply in its favor."
Access the en banc opinion (click here). Access the 3-panel opinion (click here).
Unlike the 3-panel ruling which said the Lands Council ". . . demonstrated a probability of success on the merits and a possibility of irreparable injury [and] . . . further showed that the balance of hardships and the public interest favored granting the preliminary injunction. . ."; the en banc panel concluded, ". . . that Lands Council was not likely to succeed on any of its claims under the NFMA or NEPA. We also conclude that Lands Council has not shown that, if we allow the Forest Service to proceed with the Mission Brush Project, the balance of hardships tips sharply in its favor."
Access the en banc opinion (click here). Access the 3-panel opinion (click here).
Followell v. United States
Jul 3: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-3017. Cheryl Followell, as executrix, brought the action on behalf of the estate of her deceased mother, Betty Gurley. Followell and Gurley Refining Company (GRC) appealed an order of the district court dismissing this action for failure to state a claim and the Appeals Court affirmed.
The Appeals Court cited the district court in saying that the dispute between Plaintiffs and U.S. EPA (EPA) has had, "a long and tortuous history" reaching back more than twenty years when the EPA filed a civil action in 1987 alleging Plaintiffs violated the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA). During the course of the CERCLA litigation, William Gurley fraudulently transferred roughly $17 million in assets to Betty Gurley. After judgment was entered against him, he declared bankruptcy. The Appeals Court said, "For over a decade, William Gurley, Betty Gurley, and GRC have engaged in 'vexatious litigation' to prevent the EPA from collecting the debt." The Appeals Court said in a brief 3-page opinion, "the district court's conclusion res judicata precludes Plaintiffs' 'relitigation of a claim on grounds that were raised or could have been raised in the prior action.'"
Access the complete opinion (click here).
The Appeals Court cited the district court in saying that the dispute between Plaintiffs and U.S. EPA (EPA) has had, "a long and tortuous history" reaching back more than twenty years when the EPA filed a civil action in 1987 alleging Plaintiffs violated the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA). During the course of the CERCLA litigation, William Gurley fraudulently transferred roughly $17 million in assets to Betty Gurley. After judgment was entered against him, he declared bankruptcy. The Appeals Court said, "For over a decade, William Gurley, Betty Gurley, and GRC have engaged in 'vexatious litigation' to prevent the EPA from collecting the debt." The Appeals Court said in a brief 3-page opinion, "the district court's conclusion res judicata precludes Plaintiffs' 'relitigation of a claim on grounds that were raised or could have been raised in the prior action.'"
Access the complete opinion (click here).
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