Tuesday, September 30, 2008

USA v. Hagerman

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

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

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 Wabash has no lawyer in this court (it was represented in the district court by a lawyer who has since withdrawn)."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

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

Access the complete opinion (
click here).

Friday, September 26, 2008

Casitas Municipal Water District v. U.S.

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

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

Access the complete opinion (
click here).

Thursday, September 25, 2008

Abagninin v. AMVAC Chemical Corp

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

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

Access the complete opinion (
click here).

Wednesday, September 24, 2008

State of Alaska v. Federal Subsistence Board

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

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

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

Tuesday, September 23, 2008

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

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

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

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

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

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

Access the complete opinion (
click here).

USA v. Capital Tax Corp

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

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

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

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

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

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

Access the complete opinion (click here).

Friday, September 19, 2008

National Resources Defense Council v. U.S. EPA

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

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

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

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

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

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

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

Fund For Animals v. Kempthorne (Interior Department)

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

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

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

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

Access the complete opinion (
click here).

Wednesday, September 17, 2008

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

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

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

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

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

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

Access the complete opinion (
click here).

NRDC v. Winter (Department of Navy)

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

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

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

Access the complete opinion (
click here).

Monday, September 15, 2008

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

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

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

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

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

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

Access the complete opinion (
click here).

Friday, September 12, 2008

Dumontier v. Schlumberger Technology Corp

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

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

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

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

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

Access the complete opinion (click here).

Thursday, September 11, 2008

Fall River Rural Electric Cooperative v. FERC

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

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

Access the complete opinion (
click here).

Monday, September 8, 2008

Wong v. Bush

Sep 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16799. Plaintiff-Appellants (Appellants), many of whom participated in protests on August 26 and 27, 2007, oppose the Hawaii Superferry’s (HSF) operation to the Nawiliwili Harbor in Kauai, Hawaii, alleging that it is illegal. Appellants appeal the district court’s denial of their motion for declaratory relief, a temporary restraining order, a preliminary injunction, and a permanent injunction. They contend that by establishing a security zone to enable the HSF to dock at Nawiliwili Harbor, the United States Coast Guard violated their First Amendment right to free speech, the National Environmental Policy Act (NEPA), and 50 U.S.C. § 191 and 33 C.F.R. § 165.30, which govern the Coast Guard’s authority to create security zones safeguarding United States waters and harbors. The Appeals Court said that because the issue presented is “capable of repetition, yet evading review,” it is not moot. and affirmed the decision of the district court.

Appellants assert the Coast Guard violated NEPA by failing to consider the secondary effects of establishing the security zone, that is, the environmental effects created by the HSF’s operation. The Appeals Court said, "The Coast Guard did not exceed the regulatory authority granted to it in 50 U.S.C. § 191 and 33 C.F.R. § 165.30 when it established the security zone."

Access the complete opinion (
click here).

Thursday, September 4, 2008

Geerston Seed Farms v. Monsanto Co.

Sep 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16458, 07-16492, & 07-16725. In this major ruling under the National Environmental Policy Act (NEPA) involving many Plaintiff and Defendant Appellees and Intervenors on both sides involving the controversial practice of genetically modified crops, in this case specifically herbicide resistant alfalfa manufactured by Monsanto.

The Monsanto Company (Monsanto) is a large-scale manufacturer of chemical products, including herbicides and pesticides. In the 1990s it began developing a variety of alfalfa that would be resistant to one of its leading herbicides. The United States Department of Agriculture, through the Animal and Plant Health Inspection Service (APHIS), approved the genetically modified alfalfa in 2005. This is an appeal from an injunction entered by the district court enjoining future planting of Monsanto alfalfa, called “Roundup Ready alfalfa,” pending the preparation by APHIS of an environmental impact statement (EIS). The injunction was sought by plaintiffs Geertson Seed Farms and Trask Family Seeds, conventional alfalfa-seed farms, together with environmental groups, because they fear cross-pollination of the new variety with other alfalfa, thereby possibly causing conventional alfalfa to disappear.

Monsanto and its licensee, Forage Genetics, Inc. (Forage Genetics), intervened on the side of the government defendants. Monsanto, Forage Genetics, and the government pursued the appeal. According to the Ninth Circuit, there are no issues of law and therefore the Court reviewed the case for "abuse of discretion," citing Idaho Watersheds Project v. Hahn, 307 F.3d 815, 823 (9th Cir. 2002).

The Appeals Court ruled in a split, 2-1 decision, "We affirm because the district court did not abuse its discretion in entering the injunction after holding one hearing on the nature of the violation of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(C), and two hearings on the scope of injunctive relief, as well as reviewing extensive documentary submissions relating to an appropriate remedy. The injunction is limited in duration to the time necessary to complete the EIS. The existence of the NEPA violation is not disputed on appeal."

By way of background, when APHIS published its notice of the Monsanto petition for approval of Roundup Ready alfalfa in November 2004, it received 663 comments -- 520 of which opposed the petition and 137 of which supported it. Most of the commenting alfalfa growers and seed producers supported it because they said there was a demand for weed-free alfalfa, and Roundup Ready alfalfa would provide farmers a new option for weed control by allowing farmers to apply herbicide after weeds have germinated. Most of the academic professionals, agricultural support industries, and growers associations who commented supported the petition as well. Opponents of the petition, who included organic and conventional alfalfa growers, cited concerns that inadvertent gene transmission would occur, and that foreign and domestic markets may not accept products that cannot be guaranteed to be non-genetically engineered. They urged a full environmental evaluation through an EIS that would analyze the environmental effects of all the alternatives.

APHIS in June 2005 made a finding of no significant impact, concluded that it did not need to prepare an EIS, and unconditionally deregulated Roundup Ready alfalfa. Plaintiffs filed their lawsuit in February 2006, alleging violations of NEPA and other Federal statutes. The district court granted plaintiffs’ motion in February 2007, holding that APHIS had violated NEPA by deregulating Roundup Ready alfalfa without first preparing an EIS. The district court ruled APHIS had failed to take the required “hard look” at whether and to what extent the unconditional deregulation of Roundup Ready alfalfa would lead to genetic contamination of non-genetically engineered alfalfa.

The district court entered a preliminary injunction on March 12, 2007, enjoining all planting of Roundup Ready alfalfa and all sales of Roundup Ready alfalfa seed after March 30, 2007, which allowed farmers who were prepared to plant Roundup Ready alfalfa immediately, and who had already purchased the seed, to do so. After reviewing "voluminous evidentiary submissions from both sides," the district court entered its permanent injunction in May 2007. The injunction enjoined all planting of Roundup Ready alfalfa after March 30, 2007, pending APHIS’s completion of an EIS and decision on the deregulation petition.

In the appeal, much of the argument centered on whether an evidentiary hearing was required before entering the permanent injunction [See Idaho Watersheds Project, 307 F.3d 815]. The dissenting Justice said, "The district court’s failure to conduct the requisite evidentiary hearing prevents me from joining the majority’s opinion." However, the majority said, "We explained in Idaho Watersheds, however, that the key reason a further evidentiary hearing was not required was that the injunction would be in place only until the necessary environmental studies were conducted." The majority concluded, "The injunction involved only interim measures pending APHIS’s compliance with NEPA, and the district court considered extensive remedies-phase evidence. The court did not err in declining to hold a further hearing before entering the injunction pending the agency’s completion of environmental study the law undisputedly required it to perform before approving this product for unrestricted use."

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Kentucky Waterways Alliance v. Johnson

Sep 3: In the U.S. Court of Appeals, Sixth Circuit, Case No. 065614. Plaintiffs, Kentucky Waterways Alliance, Sierra Club Cumberland Chapter, Kentuckians for the Commonwealth, and Floyds Fork Environmental Association, appealed the district court’s grant of summary judgment in favor of Defendants, U.S. EPA Administrator Stephen L. Johnson, the Commonwealth of Kentucky, the Kentucky Coal Association, Associated Industries of Kentucky, the Kentucky Chamber of Commerce, and the Kentucky League of Cities. Plaintiffs’ challenge was brought pursuant to the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq. (2000), regarding EPA’s approval, under § 303(c) of the Clean Water Act (CWA), 33 U.S.C. § 1313(c) (2000), of Kentucky’s regulatory implementation of its "Tier II water quality antidegradation rules."

The Appeals Court affirmed in part and reversed in part the district court’s opinion and order. Additionally, the Appeals Court vacated in part, EPA’s approval of Kentucky’s Tier II antidegradation rules, and remanded the matter to the EPA for further proceedings consistent with these opinions.

Tier II protection applies when “the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water.” 40 C.F.R. § 131.12(a)(2). For such waters, the regulation requires that their “quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic and social development in the area in which the waters are located.” 40 C.F.R. § 131.12(a)(2). However, “[i]n allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully.” 40 C.F.R. § 131.12(a)(2).

According to the Sixth Circuit, "Kentucky’s Tier II exemption for coal-mining discharges was not ambiguous. The antidegradation regulations stated, in explicit terms, that Tier II review 'shall not apply' to coal mining discharges regulated under existing regulations. . . Those existing regulations do not require socioeconomic review. Indeed, when the EPA first queried the State on socioeconomic review for coal-mining discharges, the State responded that there was no such review. . . Only after further inquiries from the EPA did Kentucky adopt a starkly different position -- that its regulations (it did not cite a particular one) compelled a socioeconomic review for each proposed discharge. . . This securing an informal commitment from a state agency rather than requiring the state to amend its regulations violates the federal approval procedure established by 33 U.S.C. § 1313(c)(3) -- the EPA either approves or disapproves the regulations proposed by a state."

The Appeals Court also said, "Enforceability also argues against the EPA’s reliance on informal state commitments." Citing two precedent-setting cases, the Appeals Court ruled, "Because the EPA relied on an informal Cabinet commitment to approve Kentucky’s Tier II exemption for coal mining discharges, we find that the agency’s approval was 'not in accordance with law.' 5 U.S.C. § 706(2). Accordingly, we hold that this exemption too requires remand to the EPA for reconsideration."

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Wednesday, September 3, 2008

Sierra Club v. Stephen L. Johnson

Sep 2: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-11537. As explained by the Appeals Court, this Clean Air Act (CAA) case involves a dispute over what triggers the U.S. EPA's statutory duty to object to the issuance of a Title V operating permit under 42 U.S.C. § 7661d(b)(2). The CAA requires the EPA Administrator to object to an operating permit “if [a] petitioner demonstrates to the Administrator that [a] permit is not in compliance with the requirements of [the Clean Air Act].” Id. The Sierra Club and the Coosa River Basin Initiative, the Petitioners in the case, challenge operating permits issued to the Georgia Power Company.

In mounting their challenge before the EPA Administrator, Petitioners relied exclusively on the Agency’s own violation notice and a subsequent complaint filed against Georgia Power in an unresolved civil enforcement action. The EPA Administrator refused to object. He found the Petitioners had not satisfied their burden of demonstrating the Georgia Power permits were not in compliance with the Act. Petitioners asked the Appeals Court to force the Agency to issue objections to the permits. Georgia Power Company, Oglethorpe Power Corporation, and the Georgia Environmental Protection Division intervened on behalf of EPA.

The Appeals Court said, "We deny the request because we hold the EPA Administrator’s actions fell within the bounds of his discretion: A violation notice and civil complaint are merely initial steps in an enforcement action and do not, by themselves, inevitably trigger the EPA Administrator’s duty to object under 42 U.S.C. § 7661d(b)(2)."

In summary, the Appeals Court said, ". . . we conclude the EPA has offered a reasonable interpretation of the statute that deserves deference: Title V operating permits are required to contain all applicable clean air requirements, see 42 U.S.C. § 7661c(a), and under § 7661d(b)(2) a petitioner must demonstrate to the Administrator that a permit does not contain a requirement that is applicable to that permit’s source. Here, Petitioners only offered evidence that the EPA had initiated proceedings to resolve the applicability of PSD [prevention of significant deterioration] requirements to the Bowen and Scherer plants. This evidence, without more, was insufficient to trigger the Administrator’s duty to object to the permits because the EPA had discretion to reasonably conclude the applicability of PSD limits to the Bowen and Scherer plants was still very much unresolved. Therefore the EPA Administrator did not act arbitrarily in declining to object to the Bowen and Scherer permits, which did not contain PSD-related limits or compliance schedules." While the petition was denied the Appeals Court noted that the EPA action against Georgia Power is still unresolved.

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