Wednesday, February 20, 2008

P&V Enterprises v. U.S. Army Corps of Engineers

Feb 19: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5060. The Appeals Court explains that section 404 of the Clean Water Act (CWA) authorizes the Corps to regulate the discharge of dredged and fill material into “navigable waters,” which are “the waters of the United States, including the territorial seas.” In 1986, the Corps promulgated a definition of “waters of the United States.” In 2001, the Supreme Court held that the Corps had exceeded its authority under section 404(a) in promulgating the Migratory Bird Rule as applied to “an abandoned sand and gravel pit.” Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs (SWANCC), 531 U.S. 159, 174 (2001). Because that rule raised “significant constitutional questions” by “invok[ing] the outer limits of Congress’ power” under the Commerce Clause, the Court held that “a clear indication” of Congressional intent was required and there was none.

In January 2003, the Corps issued an Advance Notice of Proposed Rulemaking (ANPRM requesting public input on issues associated with the definition of “waters of the United States” with the goal of developing proposed regulations that will clarify what waters are subject to CWA jurisdiction and affording full protection to these waters. After receiving approximately 130,000 comments, on December 16, 2003, the Corps and U.S. EPA issued a one-page press release announcing that it “would not issue a new rule on federal regulatory jurisdiction over isolated wetlands.”

On August 5, 2005, P&V Enterprises, et al filed suit, challenging the 1986 rule’s definition of “waters of the United States” as “facially invalid” under the Commerce Clause and alleged that the Corps had overstepped its authority in asserting jurisdiction over the Mojave River, which they said was an “isolated, intrastate” river. The complaint alleged that the Corps had overstepped its authority in asserting jurisdiction over the Mojave River. The Corps moved to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(1) for lack of subject-matter jurisdiction, asserting sovereign immunity and, alternatively, that if the complaint stated a claim under the Administrative Procedure Act (APA) it was "untimely."

P&V responded that the APA’s waiver of sovereign immunity applied regardless whether it was stating an APA claim and that the Corps had reopened the 1986 rule for facial challenge by issuing the ANPRM and Press Release in 2003. The district court dismissed the complaint for failure to state a claim.

The Appeals Court indicates that the issue on appeal is whether the Corps reopened consideration of a 1986 rule such that the district court erred in dismissing a facial challenge to the rule as untimely under 28 U.S.C. § 2401(a). In its final ruling the Appeals Court says, ". . .we affirm the dismissal of P&V’s facial challenge to the 1986 rule for lack of subject-matter jurisdiction, rather than for failure to state a claim. . .The court has long held that section 2401(a) creates 'a jurisdictional condition attached to the government’s waiver of sovereign immunity.' [precedent cited] On appeal, neither P&V nor the Corps has challenged this circuit’s precedent; therefore, we need not question our prior authority. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). Consequently, the court has no occasion to address potential implications of recent Supreme Court decisions, and no need to reach the Corps’ alternative objection that P&V lacks standing."

Access the complete opinion (
click here).

American Bird Conservancy v. FCC

Feb 19: In the U.S. Court of Appeals, D.C. Circuit, Case No. 06-1165. The American Bird Conservancy and Forest Conservation Council petitioned the court for review of an order by the Federal Communications Commission (FCC), denying in part and dismissing in part their petition seeking protection of migratory birds from collisions with communications towers in the Gulf Coast region. In their petition the groups claimed that FCC rules and procedures for approving new towers failed to comport with the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Migratory Bird Treaty Act (MBTA). The Appeals Court, in a 2-1 decision, vacated the FCC Order saying the "Commission failed to apply the proper NEPA standard, to provide a reasoned explanation on consultation under the ESA, and to provide meaningful notice of pending tower applications."

In the case environmental groups claimed that towers kill 4 million to 50 million birds per year, while industry groups claimed that such claims are overstated. In 2005, FCC dismissed the groups' Gulf Coast region petition and said it would address aspects of the migratory bird issue as part of a separate docket examining the issue on a nationwide basis. In 2006, as part of its nationwide inquiry on the issue, FCC also “tentatively” proposed that communications towers use “medium intensity white strobe lights” rather than red lights that may present a higher risk of tower kill. The comment period in the nationwide rulemaking proceeding closed in May 2007, but the Commission has yet to take final action. In the meantime, in May 2006, the petitioners continued their legal challenge and sought review of the FCC regional order.

In its final decision, the two judge majority ruled, ". . .except as regards deferral of the MBTA issue, we vacate the Order and remand the case to the Commission to comply with NEPA and ESA. The results of the NPRM may inform the Commission’s decision on remand, but the nationwide proceeding neither incorporates nor supplants the Gulf Coast petition. The Commission has amassed a wealth of information during the past five years, including reports from other federal agencies such as the FWS, a report from its own consultant in 2004, as well as a second round of comments from interested persons. Guided by this opinion, the Commission should be able to proceed with dispatch on remand to resolve the Gulf Coast petition, whether separately or as part of the nationwide proceeding." On the MBTA issue the Appeals Court said, ". . .the Commission acted reasonably in deferring consideration of this issue."

Judge Kavanaugh, in a dissenting opinion said, "I would dismiss their lawsuit as unripe because the FCC, in a separate rulemaking proceeding, is re-examining these environmental issues and considering the effects of communications towers on birds nationwide, including in the Gulf Coast region. . ."

According to a release from Earthjustice who represented environmental groups in the case, tens of thousands of communication towers dot landscapes across the country. In Texas alone, there are over 10,000 of these towers. Each month, the FCC receives more than 20 new applications for tower construction. They said the situation is critical along the Gulf Coast where thousands of communications towers dot the 1,000-mile stretch of coastline between Pt. Isabel, Texas and Tampa Bay, Florida.

Darin Schroeder, American Bird Conservancy's Executive Director of Conservation Advocacy said, "We are very pleased by today's ruling which will require the FCC to assess the environmental impacts of towers. Given the large number of bird deaths caused by towers, an environmental review is long overdue. The ruling will also require FCC to better protect endangered species by consulting with wildlife experts before permitting decisions are made. This is a huge victory for migratory birds and the millions of Americans who love to see them each year."

Access the complete opinion (
click here). Access a release from Earthjustice (click here).