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).