Wednesday, February 6, 2008

Southeastern Federal Power Customers, Inc. v. Green (Dept. of Army)

Feb 5: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 06-5080, 06-5081. The case arises out of the requirements of three States for water stored in a federal reservoir. The States of Alabama and Florida appealed the order of the district court approving a Settlement Agreement between Southeastern Federal Power Customers, Inc. (Southeastern), a group of Georgia water supply providers (Water Supply Providers), the U.S. Army Corps of Engineers (the Corps), and the State of Georgia. The Agreement provides for a ten or twenty year “temporary” reallocation of over twenty percent (20%) of the water storage in the Lake Lanier reservoir, which is located in the State of Georgia and operated by the Corps. Alabama and Florida contend that the Agreement violates the Water Supply Act (WSA), 43 U.S.C. § 390b(d), the Flood Control Act (FCA), 33 U.S.C. § 708, and the National Environmental Protection Act (NEPA), 42 U.S.C. § 4321 et. seq.

The Appeals Court said "We need address only one of the statutory challenges. Under the WSA, the Corps must obtain prior Congressional approval before undertaking 'major . . . operational changes.' § 301(d), 43 U.S.C. § 390b(d). Because the Agreement’s reallocation of Lake Lanier’s storage space constitutes a major operational change on its face and has not been authorized by Congress, we reverse the district court’s approval of the Agreement."

In their decision, the Majority concluded, "Congress envisioned that changed circumstances or 'difficult situations' might arise and specified that any solution involving 'major operational . . . changes' required its prior authorization. . . We therefore need not reach the other contentions of Alabama and Florida. The Agreement’s reallocation of Lake Lanier’s storage capacity to local
consumption is a major operational change that under section 301(d) of the WSA, 43 U.S.C. § 390b(d), may not occur without Congress’ prior authorization. Accordingly, because no authorization has been obtained, we hold that the district court erred in approving the Agreement and reverse." The third judge issued a separate, but concurring opinion.

Access the complete opinion (
click here).

Lemon, et al v. Green (Dept. of Army)

Feb 5: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 06-5278. Plaintiffs live near and enjoy Fort Ritchie, a closed Army base in western Maryland. The Appeals Court said the only issues on this appeal are whether, as the district court ruled, plaintiffs lack standing to pursue claims regarding the disposition of Fort Ritchie under the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA), and whether the case became moot while the appeal was pending.

On the standing issue, the Appeals Court said, "...We think the court misperceived the nature of plaintiffs’ claim... Preparation of an environmental impact statement will never 'force' an agency to change the course of action it proposes. The idea behind NEPA is that if the agency’s eyes are open to the environmental consequences of its actions and if it considers options that entail less environmental damage, it may be persuaded to alter what it proposed... Countless lawsuits in which this court and others upheld a plaintiff’s standing were predicated on that understanding. The plaintiffs in some of those cases had standing because they lived -- as do the plaintiffs here -- near where the federal action would occur and would feel the environmental effects of that action if it went forward... it is clear that individuals in the same position as the plaintiffs in this case have standing to seek compliance with the impact statement requirement of NEPA. The Supreme Court recognizes as much, as do we. For similar reasons we believe plaintiffs had standing to pursue their claim under NHPA..."

On the mootness issue, the Appeals Court said, "A case becomes moot when 'intervening events make it impossible to grant the prevailing party effective relief... But all of the parties to the transaction are before the court. If unraveling the transfer is necessary after the district court decides the merits, it will be within the court’s power to do so... The case therefore is not moot. The judgment of the district court dismissing the action for lack of standing is reversed and the case is remanded for further proceedings."

Access the complete opinion (click here).