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).]