Cannon v. Gates (Defense Department)

Aug 26: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-4107. Plaintiffs-Appellants F. Douglas Cannon, et al (the Cannons) brought suit against the Defendants-Appellees claiming two violations of the Solid Waste Disposal Act and one violation of the Administrative Procedures Act. The district court dismissed the case for lack of subject matter jurisdiction pursuant to the jurisdiction-stripping provision at 42 U.S.C. § 9613(h). The Appeals Court concluded that the district court properly applied § 9613(h) because the Cannons’ suit constitutes a challenge to the Government’s selected removal action, and therefore affirmed the dismissal.

Cannon owned over 1,416 acres of land in Tooele County, Utah and in 1945 entered into a six-month lease with the U.S. War Department, in return for one dollar, which permitted the Government to enter his land to conduct Project Sphinx, which was designed to test means of battling Japanese forces entrenched in caves in the Pacific Islands. The Government agreed that, at the expiration of the lease, it would “leave the property of the owner in as good condition as it is on the date of the government’s entry.”

As part of that testing, the Government used incendiary weapons, including aviation fuel, butane, gasoline, napalm, PT jell, and napalm-gas mixtures. The Government also used chemical weapons, such as phosgene, hydrogen cyanide, mustard gas, and defoliants. Finally, the Government dropped conventional bombs on Cannon’s property. In the 1970s, the Government initiated efforts to study the contamination at the adjacent Dugway Proving Grounds, and included the Cannon property in some of these efforts. The Government, however, did not clean up the Cannon property at that time, and has yet to do so.

Frustrated by the slow progress in the Government’s clean up efforts, two of Cannon’s children, sued the U.S. in 1998 under the Federal Tort Claims Act (FTCA). Following a bench trial, the district court found that the Government had diminished the value of the Cannons’ land from $176.26 to $25 an acre, and awarded them $160,937 in damages. The Tenth Circuit, however, reversed that judgment and held that the statute of limitations barred the Cannons’ FTCA claims.

In November 2005, the Cannons tried a different approach and initiated legal action alleging two claims under the Solid Waste Disposal Act (SWDA). The Cannons alleged under two sections of SWDA that the United States was in violation of federal and Utah regulations applicable to generators of hazardous waste; and that the U.S. has contributed to conditions on their property that endanger the Cannons, other individuals mining on the property, and members of the general public who come onto the Cannons’ property. The Cannons also made a claim under the Administrative Procedures Act (APA), to “compel agency action unlawfully withheld or unreasonably delayed.”

The district court said SWDA § 9613(h) deprives federal courts of jurisdiction to consider “any challenges to removal or remedial action selected.” The Cannons' appealed and the Appeals Court determined that the "Government has already undertaken several
steps toward determining how it will address the contamination present on the Cannons’ property"; and thus, "the Government’s removal actions are therefore sufficient to trigger § 9613(h)." The Appeals Court said, "We are sympathetic to the Cannons’ frustration with the long delays; however, their suit falls within the broad ambit of § 9613(h)."

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U.S. v. MV Sanctuary

Aug 25: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-2123. According to the Appeals Court, the main issue in the appeal is whether U.S. EPA may obtain an administrative warrant to carry out its authority under the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq., to inspect places containing regulated chemical substances. The Appeals Court ruled that EPA has such authority, and affirmed the district court’s issuance of a warrant authorizing the Agency to inspect the M/V Sanctuary for polychlorinated biphenyls (PCBs). The Appeals Court also affirmed the district court’s preliminary injunction order preventing the Sanctuary’s owner, Potomac Navigation, Inc., from moving a ship from the pier in Baltimore where it was docked.

The Appeals Court cites the relevant sections of TSCA and indicates TSCA provides EPA with inspection authority. Specifically, "[f]or purposes of administering [TSCA]," EPA "may inspect any establishment, facility, or other premises in which" substances regulated by the Act "are manufactured, processed, stored, or held before or after their distribution in commerce." 15 U.S.C. § 2610(a). In addition, this inspection authority reaches "any conveyance being used to transport" a regulated substance "in connection with distribution in commerce." Id. EPA’s inspection powers "extend to all things within the premises or conveyance inspected" that "bear[ ] on whether the requirements of [TSCA]" have been met with respect to regulated substances "within such premises or conveyance."

The Sanctuary, built in 1944, was once a U.S. Navy hospital ship. The ship was stricken from the Naval Vessel Reports in 1989, and the government sold the ship later that year to Project Life, Inc. (formerly Life International) for $10, with the stipulation that the ship would be used to provide humanitarian services. Project Life docked the Sanctuary at a Maryland Port Authority (MPA) pier in Baltimore, with the announced purpose of converting the ship into a facility for women suffering from addiction. The conversion was never accomplished, and Project Life failed to pay MPA dockage and related charges that became due. Later, sampling data showed that PCBs were present in paint coatings on the Sanctuary. Moreover, as EPA’s research revealed, it was likely that PCBs were in, or exposed on the surfaces of, other components, equipment, and materials on the ship. It was also likely that the PCBs would be in, or on the surfaces of, items that were not being maintained "in a totally enclosed manner."

In early November 2007, pursuant to its authority under TSCA, EPA requested permission from Potomac to inspect the Sanctuary for materials containing PCBs. Potomac denied EPA’s request. Shortly thereafter, EPA (1) applied to the district court for an administrative warrant authorizing the inspection, and (2) moved for a preliminary injunction to prohibit Potomac from moving the Sanctuary from the Baltimore pier until EPA could complete the inspection and determine whether enforcement action was necessary. The district court issued the warrant for the inspection of the Sanctuary and granted the preliminary injunction.

Potomac appeals, contending that the district court erred in (1) concluding that EPA has warrant authority under TSCA, (2) finding probable cause to support issuance of the administrative warrant, (3) concluding that the Sanctuary was a proper location for inspection under TSCA, (4) denying Potomac’s request for a Franks hearing, and (5) granting the preliminary injunction that enjoined the towage of the Sanctuary from Baltimore.

The Appeals Court concluded, "Given the serious health and environmental consequences associated with PCBs, the district court did not clearly err in finding that the balance of harms tipped sharply in favor of EPA (and the public interest). In short, the district court did not abuse its discretion in granting a preliminary injunction (of limited duration) that prevented the Sanctuary from being moved from the United States while EPA executed its inspection warrant and considered what, if any, regulatory or enforcement action was warranted."

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James River Insurance v. Ground Down Engineering

Aug 20: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-13207. James River Insurance Company appealed the district court’s dismissal of its claim seeking a declaratory judgment that it is not obligated to provide a legal defense to Ground Down Engineering under the insurance policy Ground Down purchased from James River. James River also appealed the denial of its summary judgment motion. James River argues that the “pollution exclusion” in the policy excuses it from the obligation to defend Ground Down and Ground Down’s engineer, Laurel Hall, in a suit filed by Priority Development for "negligently failing to discover construction debris and fuel tanks during an environmental site
assessment."

In its decision, the Appeals Court concluded that the district court erred in holding that the pollution exclusion does not apply. and vacated the district court’s dismissal and remanded the case with instructions for the district court to enter an order granting summary judgment to James River.

In its decision, the Appeals Court said, "Appellees argument fails for two reasons. First, Priority’s complaint states that the damages associated with the construction debris come from the elevated levels of methane gas caused by the debris and lists the debris under the heading 'environmental contamination.' Second, the pollution exclusion is not actually limited to irritants or contaminants. The definition for pollutants states that 'irritants or contaminants' covers 'waste' which includes 'all . . . materials to be disposed of, recycled, stored, reconditioned, or reclaimed.' Only a strained reading of this language would exclude construction debris causing elevated levels of methane gas from this definition. Finally, the first sentence of the exclusion states that 'Pollution / environmental impairment / contamination is not covered under this policy.' The construction debris described in Priority’s complaint, even without the methane gas, would be considered an environmental impairment."

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El Comite para el Bienestar de Earlimart v. Warmerdam

Aug 20: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-16000, 06-16131. As explained by the Appeals Court, the case involves a challenge under § 304 of the Clean Air Act (CAA), see 42 U.S.C. § 7604(a) -- the citizen suit provision. A coalition of community organizations (El Comité) brought suit against California state officials (California) responsible for designing and implementing the State air quality plan. The complicated approval process for the State Implementation Plan (SIP) required extensive back-and-forth between California and U.S. EPA.

El Comité takes issue with both the process by which California obtained EPA approval of the SIP and the final outcome of that approval process. In particular, El Comité argues that California violated Federal law by failing to adhere to the SIP approved by the EPA, which it argues required California to implement additional regulations in five areas where air quality standards for reducing harmful emissions have not been met. They charge, "California went astray. . . by using the wrong data to calculate the baseline for its emission standards and by ignoring deadlines that were intended to be incorporated into EPA’s final approval of the SIP." The Appeals Court said, "El Comité’s claim turns on determination of what documents were incorporated into the final SIP and the EPA rule, and interpretation of what the SIP, and hence federal law, requires of California."

The district court concluded that it did not have jurisdiction to review El Comité’s claim regarding the data and methodology used by California to calculate the baseline for emissions standards. The court agreed, however, with El Comité’s expansive interpretation of the SIP, and ordered relief based on that interpretation. That relief was also built on the methodology El Comité advocated for use in calculating the baseline -- the same methodology the district court had held it was without jurisdiction to review.

The Appeals Court indicates that, "As it [district court] carefully worked through the parties’ labyrinthine administrative law arguments, the court acknowledged that its rulings were potentially incongruous. We agree. In our view, the district court ultimately exceeded its jurisdiction. Because § 304 of the CAA provides jurisdiction only to enforce an 'emission standard or limitation,' and because the challenged conduct did not implicate such a standard or limitation, the court was without jurisdiction to order a remedy."

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Sierra Club v. U.S. EPA

Aug 19: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 04-1243, 07-1039. As explained by the majority in this 2-1 split decision, the 1990 Amendments to the Clean Air Act compel certain stationary sources of air pollution to obtain permits from state and local authorities that identify all emission limits for the source and also include “monitoring . . . requirements to assure compliance with the permit terms and conditions.” 42 U.S.C. § 7661c(c). Sometimes, existing monitoring requirements do not “assure compliance.” The U.S. EPA promulgated a rule preventing state and local authorities from supplementing these inadequate monitoring requirements. The majority opinion vacated the rule saying that, ". . . it is contrary to the statutory directive that each permit must include adequate monitoring requirements."

The majority clarifies the issue by citing an example. ". . . suppose there is a standard that limits emission from a given stationary source to X units of pollutant per day. Suppose also that the standard requires annual monitoring. Where annual testing cannot assure compliance with a daily emission limit, may the permitting authority supplement the monitoring requirement 'to assure compliance with the permit terms and conditions,' as the Act commands? 42 U.S.C. § 7661c(c)."

The majority notes that EPA's position on the issue has varied over time. In 1997, EPA took the position that state and local permitting authorities could supplement periodic monitoring requirements that failed to assure compliance. The Appeals Court cites a letter from Winston A. Smith, Director, Air, Pesticides & Toxics Mgmt. Div., EPA, to Howard L. Rhodes, Director, Air Res. Mgmt. Div., Fla. Dep’t of Envtl. Prot. (Dec. 11, 1997). Then in 2004, EPA issued a rule which provided that nothing in the Part 70 Rules authorized permitting authorities to supplement inadequate monitoring requirements. See 69 Fed. Reg. 3202 (Jan. 22, 2004). EPA said that it alone would remedy inadequate monitoring requirements by undertaking a “programmatic” strategy. The Appeals Court vacated the 2004 rule because EPA had not allowed for notice and comment [Envtl. Integrity Project v. EPA, 425 F.3d 992, 998 (D.C. Cir. 2005)], and then EPA noticed and adopted an identical rule in December 2006 [71 Fed. Reg. 75,422 (Dec. 15, 2006) (2006 rule)].

In vacating the 2006 rule, the Appeals Court majority said, ". . . we have concluded the Act requires: a permitting authority may supplement an inadequate monitoring requirement so that the requirement will 'assure compliance with the permit terms and conditions.' Because § 70.6(c)(1) can be reasonably read this way, we uphold the monitoring provisions of the Part 70 Rules as consistent with the Act. . . We grant the petition for review with respect to the 2006 rule, which we vacate. We deny the petition for review with respect to the monitoring provisions of the Part 70 Rules."

In dissent, one of the three Justices said, "I respectfully part ways with the majority opinion because the relevant statutory language supports EPA’s 2006 rule. . . The dispute in this case boils down to the following: When issuing permits, can state and local permitting authorities independently determine whether, in their view, those pre-existing monitoring requirements are sufficient “to assure compliance” with emission limits -- and if they think not, impose additional monitoring requirements? The legal question here is: Who Decides? According to petitioners, the statute says that state and local permitting authorities can decide on their own to impose additional monitoring requirements as they see fit. EPA responds that it possesses the statutory authority and discretion to decide whether state and local permitting authorities can impose additional monitoring requirements. The statutory text resolves that question; the statute grants EPA the authority to determine whether state and local permitting authorities can impose additional monitoring requirements. . ."

Earthjustice challenged the 2006 EPA rule on behalf of the Environmental Integrity Project, Environmental Defense Fund, Natural Resources Defense Council and Sierra Club. They said the rule specifically prohibited permitting authorities from including stronger air pollution monitoring requirements in permits for approximately 18,000 major stationary pollution sources, even where needed to guarantee compliance with emission limits. Earthjustice attorney Keri Powell who argued the case in court said, “This is a huge victory for everyone who breathes. We can’t have strong enforcement of our clean air laws unless we know what polluters are putting into the air.”

Sierra Club Executive Director Carl Pope issued a statement saying, "This is a huge victory against one of the most egregious rollbacks of environmental protections in our nation’s history. . ." American Petroleum Institute, who intervened on behalf of U.S. EPA, did not issue a statement on the decision.

Access the complete opinion and dissent (click here). Access a release from Earthjustice (click here). Access a statement from Sierra Club (click here).

Center For Biological Diversity v. NHTSA

Aug 18: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-71891, 06-72317, 06-72694, 06-73807, and 06-73826. The Appeals Court vacated and withdrew its opinion filed on November 15, 2007 [See WIMS 11/15/07] and denied respondents’ petition for an en banc rehearing as moot. The Appeals Court replaced its opinion filed simultaneously with an order and new opinion.

In the original case before the Appeals Court, eleven states, the District of Columbia, the City of New York, and four public interest organizations petitioned for review of a rule issued by the National Highway Traffic Safety Administration (NHTSA) entitled “Average Fuel Economy Standards for Light Trucks, Model Years 2008-2011,” 71 Fed. Reg. 17,566 (Apr. 6, 2006) (Final Rule) (codified at 49 C.F.R. pt. 533). Pursuant to the Energy Policy and Conservation Act of 1975 (EPCA), 49 U.S.C. §§ 32901-32919 (2007), the Final Rule sets corporate average fuel economy (CAFE) standards for light trucks, defined by NHTSA to include many Sport Utility Vehicles (SUVs), minivans, and pickup trucks, for Model Years (MYs) 2008-2011. For MYs 2008-2010, the Final Rule sets new CAFE standards using its traditional method, fleet-wide average (Unreformed CAFE). For MY 2011 and beyond, the Final Rule creates a new CAFE structure that sets varying fuel economy targets depending on vehicle size and requires manufacturers to meet different fuel economy levels depending on their vehicle fleet mix (Reformed CAFE).

The Petitioners, the Center For Biological Diversity (CBD), et al, argued that NHTSA's Final Rule was arbitrary, capricious and contrary to the EPCA; that the Environmental Assessment was inadequate; and a full Environmental Impact Statement was required. NHTSA disputed all charges. The Ninth Circuit ruled in the original opinion that, "the Final Rule is arbitrary and capricious, contrary to the EPCA in its failure to monetize the value of carbon emissions, failure to set a backstop, failure to close the SUV loophole, and failure to set fuel economy standards for all vehicles in the 8,500 to 10,000 gross vehicle weight rating (GVWR) class. We also hold that the Environmental Assessment was inadequate and that Petitioners have raised a substantial question as to whether the Final Rule may have a significant impact on the environment. Therefore, we remand to NHTSA to promulgate new standards as expeditiously as possible and to prepare a full Environmental Impact Statement."

In its new order and opinion, the Ninth Circuit the Ninth Circuit Court of Appeals denied the Administration’s request to revisit the court’s November 2007 decision. The ruling was based in part on the administration’s failure to analyze the impact of the standards on greenhouse-gas emissions and global warming. Existing law requires the administration to set fuel-economy standards at the “maximum feasible level” and to fully analyze the environmental consequences of the standards chosen. In a release, CBD commented on the ruling saying, ". . .the court affirmed the decision in every significant respect, making only minor modifications.

Among other changes, the Ninth Circuit clarified that NHTSA must promulgate new standards as expeditiously as possible and prepare "either a revised Environmental Assessment or an Environmental Impact Statement." [emphasis added] On this issue the Appeals Court said, "The distinction -- between cases where it is appropriate to order immediate preparation of an EIS and those where it is not -- is implicit in this circuit’s NEPA jurisprudence, and has been explicitly recognized elsewhere. . . So, if there is uncertainty over whether the proposed project may have a significant impact, including uncertainty caused by an incomplete administrative record or an inadequate EA, the court should ordinarily remand for the agency to either prepare a revised EA or reconsider whether an EIS is required. . . Whether to require an EIS now is a very close question. Petitioners’ evidence demonstrates, overwhelmingly, the environmental significance of CO2 emissions and the effect of those emissions on global warming. How NHTSA can, on remand, prepare an EA that takes proper account of this evidence and still conclude that the 2006 Final Rule has no significant environmental impact is questionable. . . We nonetheless give the benefit of the doubt to NHTSA and decline to order the immediate preparation of an EIS . . ."

Kassie Siegel, climate program director for the Center for Biological Diversity and an attorney on the case said, “As the Court of Appeals has affirmed, the law requires the Bush administration to set fuel-economy standards at the maximum feasible level in order to conserve oil, reduce greenhouse gas pollution, and protect consumers from increasing energy prices.Yet the administration’s current proposal still allows oil use and greenhouse gas emissions to spiral upwards while protecting nothing but the profits of the oil and auto industries.”

In the release including a chart of the Administration's Proposed Fuel Economy Standards for MY 2011-2015, Mickey Moritz, another CBD staff member said, “According to the Bush administration, we should strive to achieve lower fuel economy in 2015 than cars on the road achieve today. We can and must do better, and we will hold this administration accountable for complying with the law and requiring automakers to provide state-of-the-art, fuel-efficient vehicles.” CBD said, "The administration kept the proposed standards low by employing numerous assumptions that defy common sense and violate the law."

For example, CBD indicates that Administration officials assumed that gas will cost $2.36 per gallon in 2020 and $2.51 in 2030, whereas increasing gas prices by 88 cents per gallon in 2016 would have increased the gas-mileage standard by nearly 7 mpg for passenger cars. The officials also assumed that technological solutions available today, such as the use of plug-in hybrids and electric vehicles, could not be employed by automakers for model years 2011-2015. And the officials assumed that automakers "need not and would not change" their existing vehicle redesign schedules in order to provide more fuel-efficient vehicles. The NHTSA's comment period on its Notice of Intent to Prepare an Environmental Impact Statement for New Corporate Average Fuel Economy Standards also ended on August 18.

Access the complete opinion (click here). Access a release from CBD with links to additional information (click here). Access the NHTSA's docket including its notice, supporting information and public comments (click here).

Galveston-Houston Association For Smog Prevention v. U.S. EPA

Aug 13: In the U.S. Court of Appeals, Fifth Circuit, Case No. 06-61030. Petitioner Galveston-Houston Association for Smog Prevention (GHASP) sought a review of the U.S. EPA's final rulemaking action approving the Mid-Course Review State Implementation Plan (MCR SIP) submitted by the State of Texas for the Houston-Galveston-Brazoria Severe Ozone Nonattainment Area (HGB area). Texas submitted the MCR SIP to satisfy one of the enforceable commitments contained in a previously approved State Implementation Plan (SIP) for the HGB area. GHASP argues that: (1) EPA acted arbitrarily and capriciously in approving the MCR SIP because it did not demonstrate attainment of specified emissions reductions; (2) EPA acted arbitrarily and capriciously when it relied on "weight of evidence" analysis to excuse modeled nonattainment; and (3) by approving the MCR SIP, the EPA violated the non-interference or anti-backsliding provision of the Clean Air Act.

The Appeals Court denied the petition for review and also denied an award of attorneys’ fees to GHASP. In part, the Appeals Court said, "Because the definition of reasonable further progress is defined within the statute, the question of whether the MCR SIP violates Section 110(l) turns on the meaning of 'would interfere.' The statute itself does not define 'would interfere.' Because Congress has not directly spoken on this issue, under Chevron step two we will defer to the EPA’s interpretation unless it is arbitrary or capricious.

"GHASP contends that the EPA must show that results under the MCR SIP are better than results under the 2001 SIP to comply with Section 110(l). However, nothing in the plain language of Section 110 (l) supports this interpretation. The EPA and BCCA Appeal Group in its amicus brief, urge this court to adopt the interpretation of interference accepted by the Sixth Circuit in Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), in which that court held that the EPA may approve a SIP revision 'unless the agency finds it will make air quality worse.' According to the EPA, under Section 110(l), the EPA’s approval of Texas’s MCR SIP does not constitute interference as long as the revisions to the SIP were properly substituted by new measures that would offset the effect of those measures removed from MCR SIP. Thus, changes to a SIP, either dropping measures or reducing measurement requirements, are not by themselves sufficient to prove interference. Rather, one must show that the substitute measures are not at least equivalent to the previous measures in achieving attainment. We find the EPA’s interpretation of Section 110(l) reasonable and thus refuse to substitute our judgment for that of the Agency’s."

Access the complete opinion (click here).

Village DePue IL v. Exxon Mobil

Aug 11: In the U.S. Court of Appeals, Seventh Circuit, Case No. 07-2311. The Village of DePue brought this action in Illinois state court against Exxon Mobile Corp., Viacom International, Inc. and CBS Broadcasting, Inc. (collectively, Exxon) involving cleanup of a contaminated site in the Village. Exxon removed the case to the district court under 28 U.S.C. § 1441. The district court determined that it had diversity jurisdiction and, upon Exxon’s motion, dismissed the Village’s claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

The Village of DePue filed its complaint against Exxon in Illinois state court. The complaint asserted that Exxon had violated and continued to be in violation of the Village’s nuisance ordinance. It sought three forms of relief: a judgment declaring that Exxon had violated the ordinance, daily fines of up to $750 for that alleged violation and injunctive relief requiring Exxon immediately to clean the site and have it removed from the NPL.

The district court agreed with Exxon and concluded that section 113(h) of CERCLA barred the Village’s legal challenges. Although noting that CERCLA contains “savings” provisions that preserve remedies under state and local law, the court held that, if such a law conflicts with a CERCLA-mandated remedial action, the bar of section 113(h) applied and deprived the court of jurisdiction until the remedial work was completed.

The district court held that the relief sought by the Village conflicted squarely with the detailed process mandated by the Consent Order and concluded that section 113(h) of CERCLA divested it of jurisdiction to hear the claims. The district court also held that the Village’s claims were preempted by Illinois law. It concluded that the claims conflicted with the process required by the Illinois EPA and its implementing regulations because the Village was seeking immediate and undefined completion of the cleanup at the site. Such relief, held the district court, would conflict with the considered and phased process outlined in the Illinois Hazardous Substances Pollution Contingency Plan (ICP) and implemented at the site via the Consent Order. Such interference, reasoned the court, was preempted by Illinois law. It therefore granted Exxon’s motion to dismiss the Village’s claims with prejudice.

The Appeals Court affirmed the judgment of the district court saying, "If the Village were permitted to apply its nuisance ordinance to force Exxon to complete immediately the cleanup of the site, on penalty of $750 per day for noncompliance, then it could prevent compliance with the measured cleanup process adopted by Illinois through the Consent Order under the authority of Illinois law. . . Such a result would frustrate the purpose of the Illinois Act, which permits the Illinois Attorney General to enter consent orders precisely like this one for the purpose of removing and remediating environmental hazards."

Access the complete opinion (click here).

Clark v. U.S. Department of Agriculture

Aug 12: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-3127. Appellant Dorothy Clark appealed the district court’s refusal to grant a declaratory judgment and set aside a United States Department of Agriculture (USDA) determination that she converted wetlands in violation of the "Swampbuster" provisions of the Food Security Act of 1985. Because the USDA determined she had converted wetlands, Clark became ineligible for certain farm program payments. Clark challenged the USDA’s interpretation of the term “converted wetland” and argues the evidence is insufficient to support the USDA’s determination that she converted wetlands. In addition, she challenged a USDA regulation that placed the burden on her to request, and prove her eligibility for, a “minimal effect” exemption. The Appeals Court said, "Given the deference we owe to the USDA’s regulation, its interpretation of the applicable law, and its factual determinations, we affirm the district court’s denial of relief."

The so-called Swampbuster provisions, designed to deter the conversion of wetlands, authorize the USDA to make determinations as to whether certain lands qualify as wetlands and whether wetlands that have been manipulated qualify as converted wetlands. A person determined to have converted wetlands may become ineligible to receive farm program payments; however, there is an exception to the ineligibility provision for manipulations determined to have only a "minimal effect" upon wetland and biological functions.

In making its ruling, the Appeals Court indicates that, Clark notes that Congress amended 16 U.S.C. § 3822(f) in 1990, replacing the phrase “The Secretary may exempt,” with the phrase “The Secretary shall exempt.” Pub. L. 101-624, Title XIV, § 1422, Nov. 28, 1990, 104 Stat. 3573. Clark argued generally that this amendment reflects a legislative desire to curb perceived resistance from the USDA towards issuing such exemptions.

The Appeals Court says, "We do not disagree with this general statement: the amendment clearly deprives the USDA of discretion where discretion previously existed, and following the 1990 amendment the USDA must grant such exemptions where a manipulation is shown to have a minimal effect. The statute, even as amended, however, does not apportion the burden of proof regarding the technical determination of whether a manipulation has more than minimal effect. Nor does it contain any language suggesting the USDA is without authority to impose a burden of proof upon landowners who fail to request a determination prior to taking action likely to hinder the USDA in its assessment of the wetlands’ pre-manipulation function and value."

Access the complete opinion (click here).

U.S. v. Tankersley

Aug 12: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-30334. In this environmental terrorism case, Kendall Tankersley appealed a 41-month sentence imposed following her guilty plea to conspiracy to commit arson and destruction of an energy facility in violation of 18 U.S.C. § 371, aiding and abetting attempted arson in violation of 18 U.S.C. §§ 2 and 844(i), and aiding and abetting arson in violation of 18 U.S.C. The district court imposed a sentencing enhancement for the commission of a “federal crime of terrorism,” pursuant to United States Sentencing Guidelines (U.S.S.G. or Sentencing Guidelines) § 3A1.4 (2000), against several of Tankersley’s co-defendants who targeted government property. The district court did not impose this enhancement on Tankersley because she targeted only private property. It did, however, impose a twelve-level upward departure pursuant to U.S.S.G. § 5K2.0, which had the effect of making her base offense level the same as if she had been subject to the terrorism enhancement. The Appeals Court affirmed the ruling of the district court.

From 1996 through 2001, activist groups known publicly as the Earth Liberation Front (ELF) and the Animal Liberation Front (ALF) committed arson and other crimes against government and private entities in several Western states. The groups’ membership changed over the lifetime of the conspiracy but included as many as sixteen conspirators. Tankersley actively participated in both an attempted and a subsequently completed arson that destroyed the headquarters building of U.S. Forest Industries, Inc., a private timber company located in Medford, Oregon.

In its ruling the Appeals Court said, "The district court sentenced ten individuals involved in this conspiracy. . . The district court fully considered Tankersley’s subsequent behavior, and the court’s expectations that Tankersley, once having completed her sentence, will hopefully lead a productive, crimefree life. Nevertheless, the district court could not ignore the grave nature and aggravated circumstances of Tankersley’s offense, the enormous destruction it caused, and the intent to harm and intimidate entire communities. The district court’s sentence was well-reasoned and properly based on the § 3553(a) factors. We therefore conclude Tankersley’s 41-month sentence is reasonable."

Access the complete opinion (click here).

TSG Inc. v. U.S. EPA

Aug 8: In the U.S. Court of Appeals, Third Circuit, Case No. 07-1116 . TSG, Inc. (TSG) filed a petition to challenge the validity of U.S. EPA's Applicability Determination, which found that TSG was a fabric “finishing operation” under Subpart OOOO of the National Emission Standards for Hazardous Air Pollutants (NESHAP). TSG argues that its fabric treating process should not be required to abide by the finishing operation standards and should instead qualify as a coating operation under the regulations. The Appeals Court concluded that the EPA did not "clearly err" in its determination that TSG was a finishing operation and denied the petition.

In TSG’s process, stain-repellant chemicals are diluted in a solvent, trichloroethene (TCE), which is then sprayed onto the fabric as it passes through the spraying machinery. This method allows TSG to process many different fabric weights, widths, colors, and constructions, as the solvent is generally gentler on a wider variety of fabrics than is a water-based system. As TSG characterizes it, the solvent acts as a “carrier” for the stain-repellant chemicals as they are sprayed onto the fabric and then evaporates when the fabric passes through the heating and drying machinery. A solvent recovery system then captures the evaporated solvent for reuse.

As a key part of its ruling, the Third Circuit said, "We agree with the EPA’s determination that '[t]he solvent that TSG uses to dilute stain repellent finishes is a transfer agent that is added to the finish as an auxiliary to improve the finishing process, and therefore, is a finishing material.' As the regulation states, the definition of finishing materials 'includ[es] auxiliaries,' so long as they are 'added to the finish to improve the finishing process.' 40 C.F.R. § 63.4371."

Access the complete opinion (click here).

Navajo Nation v. U.S. Forest Service

Aug 8: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-15371, 06-15436, 06-15455. In these consolidated cases, involving claims of violations of the Religious Freedom Restoration Act (RFRA), with numerous parties, the en banc Appeals Court issued a split decision with three Justices issuing a lengthy dissent. As summarized in the dissenting opinion, "The en banc majority today holds that using treated sewage effluent to make artificial snow on the most sacred mountain of southwestern Indian tribes does not violate the Religious Freedom Restoration Act (RFRA). It also holds that a supposed pleading mistake prevents the tribes from arguing under the National Environmental Protection Act (NEPA) that the Forest Service failed to consider the likelihood that children and others would ingest snow made from the effluent."

The majority defines the case saying, American Indians ask us to prohibit the Federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow. The Plaintiffs claim the use of such snow on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities.

The majority says, "We are called upon to decide whether this government approved use of artificial snow on government-owned park land violates the Religious Freedom Restoration Act of 1993 (RFRA) . . ., the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470 et seq. We hold that it does not, and affirm the district court’s denial of relief on all grounds."

Access the complete opinion and dissent (click here).

Center for Biological Diversity v. Marina Point Development

Aug 6: In the Court of Appeals, Ninth Circuit, Case Nos. 06-56193, 07-55243, & 07-56574. Marina Point Development Associates, et al appeal the district court’s judgment on the merits in favor of Center for Biological Diversity and Friends of Fawnskin (collectively the Center) on their claims under the Clean Water Act (CWA), and under the Endangered Species Act (ESA). Marina Point also appeals the district court’s order awarding attorney fees to the Center and the district court’s contempt order. The Appeals Court vacated the district court’s judgment on the merits and instruct it to dismiss for lack of jurisdiction and reversed the order awarding attorney fees and the contempt order.

By way of background, the Corps granted a permit to Marina Point which authorized it to strengthen the existing shoreline. The permit authorized Marina Point to dredge the adjacent shoreline and the interior of the existing marina, and to use the dredged material as fill for building pads on the land. Marina Point was forbidden, however, from placing rip-rap at elevations below lake bottom contours, from depositing sand below the ordinary high water mark, and from transferring fill or structures to neighboring wetlands. In order to protect bald eagles’ seasonal behavioral habits, it was also barred from working during the winter months. Besides the permit from the Corps, Marina Point secured a number of other State and local permits.

On the CWA issues, the Appeals Court said, ". . . in light of the fact that the Corps and Marina Point did act to cease the activities that the Center claimed were wrongful and even acted to effect ongoing repairs for any problems caused by past activities, the district court did not have jurisdiction to hear the CWA action. It should have dismissed the action at the outset. Thus, in this respect the district court’s judgment must fall for lack of jurisdiction, and must be vacated."

On issues relating to the ESA and bald eagles, the Appeals Court said, "Now that the bald eagle has been delisted, nothing we decide can properly give the Center the relief it sought. If the district court erred, the injunction must fall, but if the district court was correct, the injunction must still fall because no activities by Marina Point could constitute a take within the meaning of the ESA. In fact, in a letter to this court, the Center has conceded mootness."

In its ruling the Appeals Court said, "The district court determined that Marina Point had violated the CWA and had either violated or would violate the ESA. . . However, because it lacked jurisdiction over the CWA claims and because the ESA claims have become moot, we vacate its judgment and remand with directions to dismiss for lack of jurisdiction. Concomitantly, we reverse the award of attorney fees and the contempt order."

Access the complete opinion (click here).

Southwest Marine, Inc. v. U.S.

Aug 6: In the Court of Appeals, Ninth Circuit, Case No. 07-55229. In this dispute over attorney fees in an environmental case, appellant Southwest Marine, Inc., appealed from a judgment of the United States District Court for the Southern District of California granting summary judgment in favor of the United States and the Secretary of the Navy. The case involves the Appeals Court determining whether fees incurred by Southwest Marine during its unsuccessful defense of a private party Clean Water Act lawsuit are allowable costs under Subpart 31.2 of the Federal Acquisition Regulation (FAR). The Appeals Court ruled that Southwest Marine’s costs are not allowable and affirmed the judgment of the District Court.

Access the complete opinion (click here).

Citizens Against Ruining The Environment v. U.S. EPA

Jul 28: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 07-3197, 07-3198 & 07-3199. In this consolidated appeal of three related administrative review proceedings, the petitioners, several environmental protection groups and the attorney general of the State of Illinois, challenge the failure of U.S. EPA to object to certain operating permits proposed by the Illinois Environmental Protection Agency (IEPA) pursuant to the Clean Air Act (CAA). The petitioners contend that the Administrator was obligated to object because they clearly “demonstrated” that the permits were not in compliance with the CAA.

The EPA, on the other hand, maintains that the Administrator reasonably exercised his discretion in determining that the petitioners did not “demonstrate” a violation because their petitions called for further investigation and analysis, a task the Administrator found to be more appropriately carried out through the CAA’s enforcement process. The petitioners argue that the CAA grants the Administrator no such discretion.

The case involves Midwest Generation, the operator of multiple, large, coal-fired power plants in Illinois. Six of those plants: the Fisk, Crawford, Will County, Powerton, Joliet, and Waukegan stations are involved. Midwest’s predecessor, Commonwealth Edison, originally submitted applications to the IEPA for Title V operating permits back in 1995.

The Appeals Court said because the CAA does not provide a standard of review, we review the EPA’s decision under the Administrative Procedure Act (APA), which contemplates setting aside agency actions only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Appeals Court determined that the Attorney General had "not met her burden of establishing standing in this case" and dismissed her petition for review. The review then focused on the environmental groups’ challenge to the Administrator’s decision not to object to the Fisk and Crawford permits.

The groups cited a precedent from the Court of Appeals for the Second Circuit’s opinion in New York Public Interest Research Group, Inc. v. Johnson, 427 F.3d 172 (2d Cir. 2005). In summary, the Appeals Court disagreed with the groups and said, ". . .we conclude that where, as here, there is contested evidence of a potential violation requiring further investigation and analysis, the CAA allows the EPA reasonable discretion to determine that the petition failed to demonstrate noncompliance and to refer the matter to the enforcement process." The Appeals Court denied the environmental groups’ petition for review (No. 07-3197).

Access the complete opinion (click here).