Wednesday, December 24, 2008

WIMS. . . December 24, 2008

We're on our Holiday break right now.
But, we'll be back on January 5, 2009
We wish you a happy Holiday Season!

Monday, December 22, 2008

Sierra Club v. EPA

Dec 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 02-1135. The case was consolidated with Nos. 03-1219, 06-1215, 07-1201, and the American Chemistry Council intervened on behalf of EPA. Petitioners challenged the final rules promulgated by U.S. EPA exempting major sources of air pollution from normal emission standards during periods of "startups, shutdowns, and malfunctions" (SSM) and imposing alternative, and "arguably less onerous requirements in their place."

The 2-1 majority Appeals Court said, "Because the general duty that applies during SSM events is inconsistent with the plain text of section 112 of the Clean Air Act (CAA), even accepting that 'continuous' for purposes of the definition of 'emission standards' under CAA section 302(k) does not mean 'unchanging,' the SSM exemption violates the CAA’s requirement that some section 112 standard apply continuously. Accordingly, we grant the petitions and vacate the SSM exemption."

In a final rule adopted in 2003, EPA “decided instead to adopt a less burdensome approach,” to the SSM regulation requiring members of the public to make a “specific and reasonable request” of the permitting authority to request the SSM plan from the source and thus making it more difficult to access and obtain. The Sierra Club challenged the 2003 Rule in a petition for review. The Natural Resources Defense Council (NRDC) also filed a petition for reconsideration on the ground that any limitation on the public availability of the SSM plans was unlawful. EPA agreed to take comment on the new SSM provisions, and the consolidated cases were held in abeyance pending reconsideration.

In 2006, EPA retracted the requirement that sources implement their SSM plans during SSM periods; and instead comply with the "general duty to minimize emissions.” EPA required a "post-event reporting" and eliminated the requirement that the Administrator obtain a copy of a source’s SSM plan upon request from a member of the public and determined that the public may only access those SSM plans obtained by a permitting authority; but the permitting authority was not "required to do so" -- it was discretionary.

The petitioners, petitioned for reconsideration and contended that the exemption from compliance with emissions standards during SSM events is both unlawful and arbitrary, and that the 2002, 2003, and 2006 rules unlawfully and arbitrarily fail to 'assure compliance' with 'applicable requirements' under Title V.

The majority Appeals Court ruled, "In sum, petitioners’ challenge to the exemption of major sources from normal emission standards during SSM is premised on a rejection of EPA’s claim of retained discretion in the face of the plain text of section 112. 'Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent'. NRDC, 489 F.3d at 1374 (quoting TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)). The 1990 Amendments confined the Administrator’s discretion, see New Jersey, 517 F.3d at 578, and Congress was explicit when and under what circumstances it wished to allow for such discretion, id. at 582. 'EPA may not construe [a] statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.' New Jersey, 517 F.3d at 583 (quoting Whitman, 531 U.S. at 485). Accordingly, we grant the petitions without reaching petitioners’ other contentions, and we vacate the SSM exemption. See New Jersey, 517 F.3d at 583 (citing Allied Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)).

The minority, dissenting opinion indicated, "I do not agree that we have jurisdiction over Sierra Club’s petition for judicial review. The original regulations at issue. . . exempt periods of startup, shutdown, and malfunction from opacity and non-opacity emission standards. When EPA promulgated these regulations in 1994, Sierra Club took no legal action. Yet under the Clean Air Act a petition for judicial review of an EPA regulation must be filed within 60 days of the regulation’s publication in the Federal Register. . ."

Access the complete opinion and dissent (click here).

Town of Marshfield v. Federal Aviation Administration

Dec 18: In the U.S. Court of Appeals, First Circuit, Case No. 07-2820. The Federal Aviation Administration (FAA) has authority to prescribe aircraft approach and departure patterns in order to minimize noise and ensure safety. In 2002, the agency approved a change in the runway layout of Logan Airport in Boston to include a new runway and, at the same time, began a study of improved noise abatement measures. The outcome was the "Boston Overflight Noise Study" (BONS), conducted with advice and participation by various organizations.

In implementing BONS, FAA adopted some of the report's "phase I" measures for the rerouting of aircraft to increase use of Logan approaches and departures over the ocean with shoreline crossings at higher altitudes. In finding that these measures required no environmental assessment (EA) or environmental impact statement (EIS), the FAA relied upon noise studies to measure the impact on surrounding communities. The Town of Marshfield, MA, opposed the new phase 1 measures, arguing that the new flight patterns would adversely affect its residents and sought review of the FAA's decision claiming violations of the National Environmental Policy Act (NEPA), the Federal Advisory Committee Act (FACA), and the FAA's own rules.

In analyzing the NEPA issues and denying the petition for review, the Appeals Court determined that FAA's noise exposure finding "is adequately based." Additionally, the Appeals Court said, "Marshfield seems to assert that an EA or EIS was required so long as the phase 1 measures were 'highly controversial,' which it regards as covering any introduction of new noise over inhabited areas and with opposition by a town or city. Although FAA Order 10501.1E, para. 304, uses the phrase 'highly controversial,' it makes clear that controversy is not decisive but is merely to be weighed in deciding what documents to prepare."

Access the complete opinion (
click here).

Salmon Spawning & Recovery Alliance v. US Customs & Border

Dec 18: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-1444. This case concerns the Endangered Species Act (ESA) and the scope of the jurisdiction of the United States Court of International Trade. Plaintiffs-Appellants Salmon Spawning and Recovery Alliance, et al (collectively Salmon Spawning) appeal a final judgment of the Court of International Trade dismissing their complaint against various Federal agencies and officials for lack of subject matter jurisdiction.

On July 15, 2008, the Federal Circuit issued a decision [
See WIMS 7/18/08] in which it concluded that the Court of International Trade erred in dismissing the case for lack of standing and remanded to the court to determine in the first instance whether plaintiffs’ claim under section 7(a)(2) of the ESA falls within the exclusive jurisdiction of the Court of International Trade. Salmon Spawning & Recovery Alliance v. United States, 532 F.3d 1338 (Fed. Cir. 2008). On August 29, 2008, defendants filed a petition for rehearing for the limited purpose of reconsidering statements made in this court’s original opinion regarding whether the Court of International Trade may exercise “supplemental” jurisdiction pursuant to 28 U.S.C. § 1367(a).

In response Salmon Spawning elected to take no position on the issue presented by the petition. All parties agreed that the relief requested by the petition would not alter the outcome of the appeal. The Appeals Court granted the petition solely to issue a revised opinion. The previous opinion was withdrawn. In its revised opinion the Appeals Court ruled, "the Court of International Trade’s dismissal of plaintiffs’ section 9 claim is affirmed. The court’s dismissal of the section 7 claim for lack of standing is reversed, and the case is remanded to the Court of International Trade to determine whether the surviving claim falls within its exclusive jurisdiction."

Access the complete opinion (
click here).

Thursday, December 18, 2008

NC Fisheries Association v. Gutierrez (Commerce Dept.)

Dec 16: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5389. Appellants are the North Carolina Fisheries Association, Inc., two commercial fishermen, and a fish-packing plant (collectively, the Association). They filed a complaint (petition for review) in district court against the Department of Commerce, claiming that Amendment 13C to the Fishery Management Plan for South Atlantic Snapper Grouper violated the Magnuson-Stevens Fishery Conservation and Management Act (Act).

The district court granted in part and denied in part the Association’s motion for summary judgment. The court held that the Department had not complied with its statutory obligation to promulgate a rebuilding plan for certain fish species following a determination that such species were “overfished,” which failure the Government had conceded. The court then ordered that the parties confer on an appropriate remedy and submit a joint proposal or, should disagreement persist, separate proposals. Because the parties were unable to reach agreement, the district court adopted the Government’s proposal with slight adjustments to the suggested timetable. The appeal was filed and the Appeals Court concluded that it lacked jurisdiction and therefore, dismissed the appeal.

The Appeals Court said, "It does seem rather peculiar -- perhaps even a bit fishy -- that the Service promulgated Amendment 15A without accompanying regulations, indeed, without any “regulatory effect.” Recall that the Service acknowledged that it had violated the Act (which was rather obvious) by omitting a rebuilding plan; thus, it could be thought that the Service is continuing to evade its statutory obligations by failing to put teeth into the rebuilding plan. But if the Association thought that the Service had not complied in substance with the district court’s mandate, it should have sought direct relief in the district court. In any event, we lack jurisdiction at this stage in the proceedings. The case is dismissed."

Access the complete opinion (click here).

Friday, December 12, 2008

League of Wilderness Defenders v. US Forest Service

Dec 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35780. In their suit under the Administrative Procedures Act (APA), the League of Wilderness and a number of environmental groups (collectively, LOWD) sought declaratory and injunctive relief to halt the Deep Creek Vegetation Management Project (the Project), which called for the selective logging of 12.8 million board feet of timber in the Ochoco National Forest. LOWD claims in its suit that the United States Forest Service (Forest Service) failed to comply with the National Environmental Policy Act (NEPA), and the National Forest Management Act (NFMA), in developing and implementing the Project.

The district court denied LOWD’s motion for summary judgment and granted the Forest Service’s cross-motion for summary judgment. The Appeals Court ruled, "Because the Final Supplemental Environmental Impact Statement (FSEIS) may not tier to a non-NEPA watershed analysis to consider adequately the aggregate cumulative effects of past timber sales, we reverse the district court’s grant of summary judgment in favor of the Forest Service, and we remand this case so the Forest Service can reissue its NEPA documentation to include the omitted information regarding past timber sales contained in the watershed analysis."

In its conclusion the Appeals Court said, "The Forest Service’s approval of the Project violates NEPA because the FSEIS may not tier to the non-NEPA Watershed Analysis to consider adequately the aggregate cumulative effects of past timber sales. We reverse the district court’s grant of summary judgment in favor of the Forest Service, and we remand this case so the agency can reissue its NEPA documentation to include the omitted information regarding past timber sales contained in the Watershed Analysis. Each party shall bear its own costs on appeal."

Access the complete opinion (
click here).

Oregon Natural Desert Association v. US Forest Service

Dec 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35205. Plaintiffs-Appellants, Oregon Natural Desert Association, and a number of other environmental organizations (collectively ONDA), sued Defendant-Appellee, the United States Forest Service (Forest Service), for allegedly failing to comply with § 401 of the Clean Water Act (CWA, or Act) in its issuance of grazing permits on Forest Service lands. ONDA specifically argued that the outcome and reasoning of S.D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006) [See WIMS 5/15/06], are clearly irreconcilable with the Ninth Circuit's reasoning in Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092 (9th Cir. 1998), and that Dombeck is, therefore, no longer controlling law.

The Forest Service moved for judgment on the pleadings pursuant to Federal Rules of Civil Procedure 12(c). The matter was referred to a magistrate judge, who made Findings and Recommendations suggesting that the district court grant the motion for judgment on the pleadings on the ground that ONDA’s claim was barred by the doctrine of collateral estoppel [issue preclusion, or doctrine preventing a person from relitigating an issue]. The district court adopted the Findings and Recommendations and granted the motion for judgment on the pleadings. The appeal followed and the Appeals Court affirmed the decision of the district court.

However, the Appeals Court said, "Because we conclude that the principles of stare decisis [legal doctrine providing that courts should adhere to the legal principles established by courts deciding similar cases] control all of the plaintiffs in this case, we need not reach the issues of collateral estoppel and virtual representation. Whether or not the individual Plaintiffs-Appellants in this case were participants in the earlier trial, they are bound by Dombeck as a matter of law. Accordingly, the district court’s grant of the Forest Service’s motion for judgment on the pleadings as to all Plaintiffs-Appellants is affirmed."

Access the complete opinion (
click here). Access the complete S.D. Warren Co. opinion (click here).

Monday, December 8, 2008

Sierra Club v. Franklin County Power

Oct 27: In the U.S. Court of Appeals, Seventh Circuit, Case No. 06-4045. As explained by the Appeals Court, Franklin County Power of Illinois, LLC, wanted to build a 600 megawatt coal-fired power plant in Benton, in southern Illinois. Because the plant will emit a significant amount of air pollution, the Company must first obtain a “Prevention of Significant Deterioration” (PSD) permit from the Illinois Environmental Protection Agency (IEPA), the agency that the federal EPA has designated as the issuer of PSD permits in Illinois. Although the IEPA granted the Company a PSD permit in 2001, the IEPA has since made a “preliminary determination” that the permit has expired.

Sierra Club, a non-profit environmental organization sought to enjoin the Company from building the power plant by bringing suit against the Company, its parent company EnviroPower, LLC, and Khanjee Holding (US), Inc., under a citizen suit provision of the Clean Air Act. Sierra Club alleged that the Company’s 2001 PSD permit had expired because the Company had neglected to “commence construction” of the plant within an 18-month window required under the permit.

Sierra Club also claimed the permit was invalid under EPA regulations because the Company had discontinued construction of the plant for over 18 months. The district court agreed with Sierra Club on both points and granted summary judgment in its favor. The court also permanently enjoined the Company from building the plant until it obtained a new PSD permit, and the defendants appealed the decision.

The Appeals Court said, "We agree with the district court that Sierra Club has standing to pursue this lawsuit and that its claim is ripe and permissible under the Clean Air Act. We also agree that the 2001 PSD permit has expired and that the district court properly granted permanent injunctive relief in favor of Sierra Club. Therefore, we affirm the district court’s grant of summary judgment in favor of Sierra Club."

Further explaining its ruling, the Appeals Court said, ". . . the record here demonstrates that the four injunctive relief factors favor Sierra Club. First, Sierra Club will likely suffer irreparable injury if the Company builds under its expired PSD permit rather than a new permit because the former likely includes more relaxed emission standards. . . Second, legal remedies will not adequately address Sierra Club’s injury. The record shows that at least one Sierra Club member will likely suffer a decrease in recreational and aesthetic enjoyment of Rend Lake if the plant is built according to the 2001 permit. An economic award would not sufficiently compensate for this injury. . . Third, the balance of harms favors issuing an injunction. An injunction protects Sierra Club from irreparable injury while simply requiring the Company to defer construction until it obtains a permit that complies with the Clean Air Act. Finally, the record contains no evidence that the injunction harms the public interest. In fact, based on the record before us, we agree with Sierra Club that requiring the Company to obtain a valid PSD permit would likely result in decreased emissions and improved public health, which would further a stated goal of the Clean Air Act. . ."

Access the complete opinion (click here). [Please Note: The 7th circuit has a strange temporary web hyperlink nomenclature system. If the previous link does not work click on this link and enter the case number above (click here).]

Fitzgerald v. Harris

Dec 5: In the U.S. Court of Appeals, First Circuit, Case No. 08-1306. The case raises the issue of whether a Maine statute governing the management of a state administered river, the Allagash Wilderness Waterway (AWW) is preempted by certain sections of a Federal statute, the Wild and Scenic Rivers Act (WSRA). Plaintiffs Charles FitzGerald and Kenneth Cline (collectively FitzGerald) are avid canoeists who sued Willard R.Harris, Director of the Maine Bureau of Parks and Lands, seeking a declaration that the Maine statute is preempted by Federal law, as well as injunctive relief against the enforcement of the Maine statute.

According to the Appeals Court, the Plaintiffs essential complaint is that the provisions of Maine's statute maintaining certain bridges and public access points to the AWW destroy the "wild" character of the river. The Appeals Court said, "There have been, to our knowledge, no prior federal courts of appeals decisions squarely involving claims of preemption of state statutes by the WSRA, which was enacted in 1968." The district court granted Harris's motion to dismiss under Fed. R. Civ. P. 12(b)(6), adopting a magistrate judge's recommended decision holding that the Maine statute is not preempted by federal law. The Appeals Court affirmed the district court dismissal.

In part, the Appeals Court said, "Because both the NPS [National Park Service] and the ACE [Army Corps of Engineers] approved Maine's plans for the Henderson Brook Bridge, it cannot be said that the Maine statute authorizing the permanent bridges over the AWW is preempted by federal agency action."

Access the complete opinion (click here).

South Carolina Wildlife Federation v. Limehouse

Dec 5: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1431. The South Carolina Wildlife Federation and co-plaintiffs (collectively SCWF) brought suit against Federal and state agencies and agency directors, alleging violations of the National Environmental Policy Act (NEPA), arising from the proposed construction of the Briggs-DeLaine-Pearson Connector (the Connector) in South Carolina.

The Appeals Court notes that relevant to the appeal, the Director of the South Carolina Department of Transportation (the Director), who was sued in his official capacity, moved to dismiss the case on the ground that the claims against him were barred by sovereign immunity under the Eleventh Amendment. The district court denied the Director’s motion, and he filed this interlocutory appeal. The Appeals Court affirmed the district court decision.

In its analysis, the Appeals Court said, "We conclude SCWF alleged facts sufficient to survive a motion to dismiss for lack of standing. SCWF asserted that construction of the Connector would harm its members’ ability to use and enjoy the relevant area for a variety of educational, scientific, recreational, and aesthetic purposes, and that one or more of its members currently use the land for such purposes." The Appeals Court also said that SCWF has shown that enjoining the Director from proceeding with the construction of the Connector, and requiring the reexamination of the proposal in accordance with NEPA, would redress its procedural and substantive concerns."

The Appeals Court cited the now famous, historic global warming Supreme Court case Massachusetts v. EPA, 127 S.Ct. 1438, 1453 (2007) [
See WIMS 4/2/07] saying, "the redressability of an injury to a procedural right turns on the potential impact of the court’s action on the injury-causing party. Massachusetts v. EPA, 127 S.Ct. 1438, 1453 (2007) (requiring that a litigant seeking to vindicate a procedural right show 'some possibility that the requested relief will prompt the injury-causing party to reconsider' the decision). The Appeals Court concluded, "The district court properly found that SCWF stated a cause of action for prospective relief under NEPA and that the Director was party to the suit. Accordingly, we affirm the order of the district court."

Access the complete opinion (click here).

USA v. Hagerman

Dec 5: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 07-3874, 07-3875. The defendants, Wabash Environmental Technologies, LLC, and its president, Hagerman, were convicted of making false statements in violation of the Clean Water Act, and they appeal. The Appeals Court rules, "We affirm the judgments in an unpublished order issued today, and limit this opinion to a threshold issue that happens to be the single point of novelty in the appeals.

The Appeals Court notes that in previous appeals by these parties in a related civil case, it ruled that a limited liability company (which Wabash is), like a corporation, cannot litigate in a Federal court unless it is represented by a lawyer. United States v. Hagerman, 545 F.3d 579, 581-82 (7th Cir. 2008) [
See WIMS 9/30/08].

The Appeals Court explains that in the present case Wabash was represented by a lawyer both in the district court and in Seventh Circuit. The lawyer filed both an opening brief and a reply brief on behalf of the company. But then Hagerman fired the lawyer, who moved the Court for leave to withdraw from the case, which it granted. The Appeals Court says, "The question is whether, even though Wabash’s appeal has been fully briefed, we should dismiss it because Wabash is no longer represented and, not being a natural person, cannot litigate in federal court unless it is represented. We cannot find a case that has addressed this issue."

In affirming the district court decision, the Appeals Court concludes, "We have thought it best. . . to affirm the judgment of the district court in order to lay to rest any doubt about the company’s guilt. But it bears emphasis that at any point in a federal litigation at which a party that is not entitled to proceed pro se finds itself without a lawyer though given a reasonable opportunity to obtain one, the court is empowered to bar the party from further participation in the litigation."

Access the complete opinion (
click here). [Please Note: The 7th circuit has a strange temporary web hyperlink nomenclature system. If the previous link does not work click on this link and enter the case number above (click here).]

Thursday, December 4, 2008

Black Warrior Riverkeeper v. Cherokee Mining

Nov 13: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-10810. The Appeals Court explained that Black Warrior Riverkeeper (Black Warrior) is a non-profit membership organization that supports enforcement of environmental laws for the preservation, protection, and defense of the Black Warrior River located in Alabama. Cherokee Mining, LLC (Cherokee) is the owner and operator of two surface coal mines located in northern Alabama. Black Warrior sued Cherokee alleging that it had violated the Federal Water Pollution Control Act (the Clean Water Act) and similar provisions of Alabama law.

Cherokee moved to dismiss, arguing that Black Warrior’s suit was barred by a provision of the Clean Water Act, § 1319(g)(6)(A)(ii) [precludes citizen suits when a state agency has commenced and is diligently prosecuting an administrative enforcement action against a polluter], and thus should be dismissed for lack of subject matter jurisdiction. The district court denied the motion, concluding that another provision of the Clean Water Act, § 1319(g)(6)(B)(ii) [i.e. notice of intent to sue was given to Cherokee prior to the State of Alabama’s commencement of its enforcement action], lifted the bar that would otherwise have precluded Black Warrior’s suit.

The Appeals Court said, "We find Cherokee’s interpretation of these provisions to be an extremely cramped and narrow reading of the ordinary and plain meaning of the relevant language. . . We thus find that the plain meaning of the phrase 'limitations contained in subparagraph (A). . . shall not apply [to bar citizen suits] means that citizen suits are not barred when either the federal EPA or a state is pursuing an administrative enforcement action and the notice and filing requirements of § 1319(g)(6)(B) have been met."

The Appeals Court clarifies further in affirming the district court decision, "We conclude that, in accordance with the plain and ordinary meaning of §1319(g)(6)(B), all of the limitations against a citizen suit as provided for in §1319(g)(6)(A), which include federal and state administrative enforcement actions, are lifted so long as § 1319(g)(6)(B)’s notice and filing requirements are met."

Access the complete opinion (
click here).

Tuesday, December 2, 2008

Fednav et al., v. Steven E. Chester (MI DEQ)

Nov 21: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-2083. In the case of Fednav et al., v. Steven E. Chester, et al, the Appeals Court unanimously upheld the U.S. District Court, Eastern District, Southern Division decision of Judge John Feikens [Case No. 07-11116, See WIMS 8/16/07] that ruled that Michigan's Ballast Water Statute, Mich. Comp. Laws § 324.3112(6), is constitutional. The case challenging the Michigan law was brought by nine shipping companies and associations. Defendants in the case were Michigan Department of Environmental Quality (MDEQ) Director Steven Chester and Michigan Attorney General Mike Cox. Four environmental and conservation organizations intervened in the case supporting the State's position including: Michigan United Conservation Clubs (MUCC); Alliance for the Great Lakes (Alliance); National Wildlife Federation (NWF); and Natural Resources Defense Council (NRDC).

In summary, the Appeals Court said, "We hold that Plaintiffs lack standing to challenge one portion of the statute, and reject their arguments as to its remainder. We therefore affirm." The Appeals Court summarized the Federal regulations that exist and why Michigan felt compelled to adopt its own, separate law. The Court said, ". . . to summarize, the Coast Guard’s ballast-water regulations applicable to the Great Lakes have remained essentially unchanged since 1993. Vessels entering the Great Lakes carrying ballast water from outside the EEZ [exclusive economic zone] must either conduct a mid-ocean ballast-water exchange before discharging ballast water into the Great Lakes, or retain their ballast water. NOBOB [No Ballast On Board] vessels are essentially unregulated with respect to their ballast-water practices. They are thus free to take on ballast water in the Great Lakes, mix it with any sediment or residual water in their tanks, and then discharge the mixture into the Great Lakes."

The Appeals Court explains the argument of the Plaintiffs saying, "Each of these Plaintiffs seeks, in this Court at least, to challenge two distinct provisions of the Michigan Ballast Water Statute. First, they challenge the statute’s requirement that all 'oceangoing vessels engaging in port operations in' Michigan obtain a permit (the 'permit requirement'). Mich. Comp. Laws § 324.3112(6). Second, they challenge the requirement -- applicable only to oceangoing vessels that discharge ballast water in Michigan -- that they employ a treatment system approved by the MDEQ as a safe and effective means of preventing the discharge of ANS (the 'treatment requirement')."

Plaintiffs include four shipping companies: Fednav, Limited, Canadian Forest Navigation Company, Limited, Baffin Investments, Limited, and Canfornav, Incorporated (the “Shipping Companies”). They include three shipping associations: the Shipping Federation of Canada, the Seaway Great Lakes Trade Association, and the United States Great Lakes Shipping Association (the “Shipping Associations”). They also include a port terminal, Nicholson Terminal and Dock Company (“Nicholson”), and a port association, The American Great Lakes Ports Association (the “Ports Association”).

The Appeals Court then considers whether each of the Plaintiffs has standing to challenge each of these requirements, i.e. the permit requirement and the treatment requirement. The Appeals Court determines that the Shipping Companies and each of the Shipping Associations has standing to challenge the permit requirement, but Nicholson and the Ports Association do not.

On the treatment requirement, the Court says, "'virtually all' of Plaintiffs’ ships do not discharge ballast water in Michigan. And to the extent that Plaintiffs do not so discharge, they are not even subject to the treatment requirement, much less harmed by it. . . And none of them have remotely alleged that they have taken any action, much less an injurious one, in compliance with the treatment requirement. The complaint is conspicuously silent on that point. Second, and more fundamentally, we simply will not strain to construe the complaint to say by negative implication what it very simply could have said directly. . . We instead hold fast to the 'longsettled principle that standing cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record.'”

Thus the Appeals Court determines that, "The only claims over which we have jurisdiction, then, are those of the Shipping Companies and the Shipping Associations (hereinafter, 'Plaintiffs') with respect to the permit requirement." The Appeals Court conducts a rigorous analysis of preemption issues and determines that, ". . . we know that Congress contemplated ANS [aquatic nuisance species] prevention measures 'in the Great Lakes region that are not conducted pursuant to this chapter.' Id. § 4723(a)(1)(D) (emphasis added). That leaves only the question whether the reference to ANS prevention measures 'not conducted pursuant to this chapter' includes measures conducted by the states. For several reasons, we believe that it does. . . The permit requirement does not conflict with NISA [National Invasive Species Act of 1996] or the Coast Guard’s regulations promulgated pursuant to it. The requirement therefore is not preempted by federal law."

The Court also rejects a claim by Plaintiffs that the Michigan law violates the so-called “dormant” Commerce Clause by burdening interstate commerce and a "due process" claim and concludes, "Michigan, for undisputedly legitimate reasons, has enacted legislation of a type expressly contemplated by Congress. We have no basis to disrupt the result of those democratic processes. The August 15, 2007 order of the district court is affirmed."

Alliance vice president for policy, Joel Brammeier, praised the court's ruling saying, “We’re pleased with this confirmation of the states’ authority to protect the Great Lakes from invaders. While the federal government spent 2008 sitting on its hands, this decision reinforces the only real line of defense we have right now -- state action to shield the Great Lakes from these biological threats.”

Access the Appeals Court decision (
click here). Access the complete 32-page district court opinion (click here). Access MDEQ's Ballast Water Reporting website for extensive information (click here). Access legislative details for PA 33 of 2005 (click here). Access a release from the Alliance (click here). Access various media reports on the decision (click here).