Thursday, November 20, 2008

Alaska Wilderness v. Kempthorne

Nov 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-71457, 07-71989, and 07-72183. The petitioners are six organizations that support environmental conservation, indigenous communities, and wildlife populations of Northern Alaska. They challenge the Minerals Management Service’s (MMS) approval of an exploration plan submitted by Shell Offshore Inc. (Shell). Shell seeks to drill multiple offshore exploratory oil wells over a three-year period in the Alaskan Beaufort Sea.

Petitioners challenge the agency’s action under the National Environmental Policy Act (NEPA), and the Outer Continental Shelf Lands Act (OCSLA). Petitioners allege that MMS failed to take the requisite “hard look” at the impact of drilling on the people and wildlife of the Beaufort Sea region in violation of the standards set forth by NEPA, OCSLA, and their implementing regulations. Petitioners also argue that MMS erred by failing to prepare an environmental impact statement (EIS) for the proposed exploration activities, because of the potential for significant harmful effects on the environment.

The Appeals Court, in a split 2-1 decision vacated the Agency’s approval of Shell’s exploration plan, and remanded the case so that MMS can conduct the “hard look” analysis required by NEPA. The Appeals Court said MMS must prepare a revised EA "or, as necessary, an EIS."

In part, the majority said, ". . . having specific information about well locations is critical to the agency’s ability to analyze the project’s environmental effects. MMS acted in contravention of the regulations by approving Shell’s three-year plan without
determining the locations of the wells that would be drilled in that period. In order to comply with the regulations, the agency needs to consider the location of the proposed wells before it can approve the project for all three years."

Access the complete opinion and dissent (
click here).

McDonald v. Sun Oil Co.

Nov 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35683. Thomas McDonald, Marian McDonald and Alex McDonald appeal from the district court’s grant of summary judgment in favor of Sun Oil Company, Sunoco, Inc. and Cordero Mining Company (collectively, Sun). The McDonalds sued Sun for, among other things, negligence, contribution, breach of contract and fraud. Each of the claims arose out of an alleged oral warranty that certain crushed rock at the Horse Heaven Mine Property (Horse Heaven), a disused mercury mine, was free of mercury.

The district court held that Oregon’s statute of repose barred the McDonalds’ negligence claim, that their claim for contribution failed to comply with an administrative requirement, that their breach of contract claim failed because of the merger doctrine and the parol evidence rule, and that their fraud claim failed to raise a genuine issue of material fact. The Appeals Court affirmed in part, reversed in part, and remanded for trial.

The Appeals Court concluded, "The district court erred in granting summary judgment to Sun on the McDonalds’ negligence claim and that claim is remanded for trial. The district court correctly concluded that summary judgment was proper on the McDonalds’ contribution, breach of contract and fraud claim." In explaining the negligence ruling the Appeals Court said, "
the negligence claim is not based on any alleged promise to provide mercury-free calcine, but rather on alleged failures to warn about the mercury in the calcine and to test the calcine. A jury could find that there was no oral agreement, but that Sun was negligent in failing to warn that, for example, the calcine was not tested. The negligence claim should not have been dismissed."

Access the complete opinion (click here).

Romoland School District v. Inland Empire Energy

Nov 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-56632. The Romoland School District and several individuals and environmental groups, (collectively, Plaintiffs) appeal the denial of their motion for a preliminary injunction and the dismissal with prejudice of their two claims against Inland Empire Energy Center (IEEC), a wholly-owned subsidiary of General Electric Company. Plaintiffs brought suit against IEEC under the citizen suit provision of the Clean Air Act (CAA), in connection with IEEC’s plans to construct an 810-megawatt power plant approximately 1,100 feet from the Romoland Elementary School in Riverside County, California.

IEEC’s motion to dismiss contended, among other things, that the district court lacked jurisdiction over the suit because IEEC had been granted a permit under Title V of the CAA and such permits may not be challenged in civil or criminal enforcement proceedings in federal district court. Plaintiffs also included as a defendant in their CAA action the South Coast Air Quality Management District (SCAQMD), the local air pollution control agency that issued the relevant permit and authorized IEEC to
begin construction of the power plant.

The Ninth Circuit said, "We must resolve two threshold issues of jurisdiction before we may consider the merits of Plaintiffs’ claims: (1) whether the district court’s dismissals of the claims in this case present us with a final decision pursuant to 28 U.S.C. § 1291; and (2) whether the Central District of California was an appropriate forum, and 42 U.S.C. § 7604 an appropriate statutory basis, for Plaintiffs’ challenge such that the district court had jurisdiction over it pursuant to 28 U.S.C. § 1331."

The Appeals Court said, "We conclude that the orders appealed from are part of a final judgment and thus that we have jurisdiction over this case, but that the district court did not. Accordingly, we affirm the district court’s dismissal of the claims against IEEC with prejudice, hold that the claims against the air district should also be deemed to be dismissed with prejudice notwithstanding the voluntary dismissal order’s silence on this point, and further hold that all proceedings on Plaintiffs’ motion for a preliminary injunction are void because the district court was without jurisdiction to entertain that motion."

Access the complete opinion (
click here).

Friday, November 7, 2008

Wildwest Institute v. Bull

Nov 6: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35044. The Appeals Court indicates that in this case it must decide whether the United States Forest Service complied with federal environmental law in its management of the Bitterroot National Forest in Montana. The case involves the Forest Service plan for deal with unburned fuels remaining in the area following a wildfire in the Forest in the summer of 2000, making the area a high-risk area for future wildfires.

The Forest Service considered: (1) a no-action alternative (“Alternative 1”); (2) its preferred alternative (“Alternative 2”); and (3) an alternative proposed by The Ecology Center and Native Forest Network (now known as the WildWest Institute), Friends of the Bitterroot, and the National Forest Protection Alliance (“Alternative 3”).

Specifically, WildWest asserts the Forest Service committed procedural violations by (1) irretrievably committing resources in favor of its preferred alternative before making its final decision, (2) failing to engage in adequate public collaboration, and (3) ignoring competing scientific views. Substantively, WildWest challenges the Project’s impact on soil productivity, old growth habitat, species viability, and watershed sedimentation. Along with its complaint, WildWest moved for a temporary restraining order and preliminary injunction, primarily relying on its three procedural claims. The district court denied the motion, concluding in part that WildWest had made an insufficient showing that it was likely to prevail on the merits of such claims. The Appeals Court affirmed that motion [WildWest Inst. v. Bull, 472 F.3d 587 (9th Cir. 2006)].

Thereafter, the parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of the Forest Service defendants on all of WildWest’s claims. The district court ruled against WildWest on the merits of its claims, but it also held that the procedural claims were waived as WildWest only “summarize[d] those arguments as necessary to preserve them for appeal” because such claims were previously raised at the preliminary injunction stage. After the district court’s summary judgment ruling, WildWest moved for an emergency injunction pending appeal in the district court, which was denied. WildWest then made a similar motion in the Ninth Circuit court, which was also denied. In this latest action WildWest appealed the district court’s summary judgment ruling. The Ninth Circuit ruled, ". . . we conclude the Forest Service was properly granted summary judgment on all of the claims asserted against it by WildWest."

Access the complete opinion (
click here).

SBT Holdings v. Town of Westminster

Nov 6: In the U.S. Court of Appeals, First Circuit, Case No. 08-1512. Plaintiffs SBT Holdings, LLC, and its owners, Brian, Thomas, and Susan Foley, undertook a condominium real estate development project in the Town of Westminster, Massachusetts. After delays caused by environmental regulation demands by the Town, plaintiffs sued the Town, the Town of Westminster Conservation Commission, and various individuals. Suit was brought under 42 U.S.C. § 1983 alleging that the defendants, in violation of plaintiffs' equal protection rights, intentionally obstructed the development by taking certain actions, actions which a state court had found to be in violation of state law and in bad faith.

The district court dismissed plaintiffs' complaint for failure to state a claim. It held that the complaint failed to specify similarly situated others who were treated differently, a necessary element in an equal protection case. [See: SBT Holdings, LLC v. Town of Westminster, 541 F. Supp. 2d 405, 413 (D. Mass. 2008)]. The Appeals Court reversed the dismissal and remanded the case for further proceedings consistent with the opinion.

In its opinion the Appeals Court said, "Defendants' argument overlooks the relevant Massachusetts law. Since at least 1981, Massachusetts courts have recognized that conservation commissions are amenable to suit. See Hamilton, 425 N.E.2d at 366 (noting that local authorities may impose by bylaw or ordinance wetlands protections that are more stringent than state standards under section 40, but that 'where a taking is caused by the accomplishment of that purpose, it is the local authority which would bear the liability'). In addition, there are numerous cases where conservation commissions are parties and Massachusetts state courts dismissed claims for damages against them, but not on grounds they are not amenable to suit. . . Such actions have not been limited to takings claims and have included actions for damages."

Access the complete opinion (
click here).

Tuesday, November 4, 2008

Sahu v. Union Carbide Corporation

Nov 3: In the U.S. Court of Appeals, Second Circuit, Case No. 065694. In this case involving an appeal from a judgment of the United States District Court for the Southern District of New York that granted a summary judgment in favor of defendants Union Carbide Corporation and Warren Anderson on all the claims of the plaintiffs related to water pollution allegedly caused by the operations at a factory owned and operated by a former Union Carbide subsidiary in Bhopal, India.

According to the Appeals Court, with respect to the plaintiffs' claims for injunctive relief and their theories of liability other than their attempt to pierce the corporate veil between Union Carbide and its subsidiary, the district court, sua sponte [taking action on its own], converted the defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) to one for summary judgment
under Federal Rule of Civil Procedure 56 and granted the motion.

The Appeals Court said, "We conclude that the district court did not give the plaintiffs sufficient notice to allow them adequately to respond to the converted summary judgment motion." Therefore, the Appeals Court vacated the district court action and remanded the case for further consideration consistent with its opinion.

According to their complaint, "the plaintiffs have suffered a variety of ailments caused by 'the highly carcinogenic chemicals and toxic pollutants in the drinking water supply emanating from the premises of the former UCIL plant'. . . The plaintiffs also contend that Union Carbide was aware of the danger of water pollution and other environmental damage yet failed to take adequate precautions to prevent it. . . [and] Finally, the plaintiffs fault Union Carbide's response to the 1984 disaster. They contend that the cleanup effort undertaken by the company was only 'a site-based project, undertaken at minimal expense, which would conceal both the seriousness of on-site pollution and the potential risks of off- site contamination, while enabling Union Carbide to recover money from the sale of its remaining assets at UCIL.'"

The Appeals Court concluded in part, ". . . we view this as a close case. But we think there is a reasonable likelihood that, in light of the peculiarly difficult procedural history of this and related litigation, the plaintiffs were not aware that they were in danger of an adverse grant of summary judgment based on the submissions prior to the district court's order converting the motion and then deciding it. We conclude that further notice was required and that consequently it is appropriate to remand for what would appear to be relatively limited further proceedings in connection with consideration of summary judgment."

Access the complete opinion (click here).