Wednesday, January 23, 2008

Natural Resources Defense Council v. U.S. EPA

Jan 22: In the U.S. Court of Appeals, DC Circuit, Case No. 07-1040. Cemtura Corporation and the American Chemistry Council were intervenors in the case [See WIMS 12/19/06]. In the case, Natural Resources Defense Council challenges U.S. EPA's 2007 “critical use” exemption for methyl bromide on the grounds that it applies an unreasonable interpretation of the Clean Air Act and that it is arbitrary and capricious in light of the United States’ agreements with other nations on reducing the use of methyl bromide and other ozone-depleting chemicals.

The 2007 exemption applied a framework that EPA adopted in a 2004 rule -- a rule that NRDC challenged previously and that the DC Circuit affirmed. [See NRDC v. EPA, 464 F.3d 1 (D.C. Cir. 2006)]. The Appeal Court said that NRDC’s claim has not changed: in the first case it argued that the 2004 framework was invalid as adopted and applied to determine the 2005 exemption, and now it challenges the 2004 framework -- which EPA left unchanged -- as applied to determine the 2007 exemption. The Appeals Court said, "Under principles of claim preclusion, the first case bars NRDC’s new challenge."

The Appeals Court explained further, "A subsequent lawsuit is barred by claim preclusion 'if there has been prior litigation (1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.' Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006). Because NRDC involved the same parties and proceeded to final judgment in this court, the current petition for review is precluded by our prior judgment if it involves “the same claims.” We hold that it does."

The Appeals Court ruled finally, "NRDC doesn’t get a second bite at that same apple. The petition for review is barred by the preclusive effect of our prior decision adjudicating its claims against EPA’s framework for adopting critical use exemptions."

Access the complete opinion (
click here).