Monday, December 22, 2008

Sierra Club v. EPA

Dec 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 02-1135. The case was consolidated with Nos. 03-1219, 06-1215, 07-1201, and the American Chemistry Council intervened on behalf of EPA. Petitioners challenged the final rules promulgated by U.S. EPA exempting major sources of air pollution from normal emission standards during periods of "startups, shutdowns, and malfunctions" (SSM) and imposing alternative, and "arguably less onerous requirements in their place."

The 2-1 majority Appeals Court said, "Because the general duty that applies during SSM events is inconsistent with the plain text of section 112 of the Clean Air Act (CAA), even accepting that 'continuous' for purposes of the definition of 'emission standards' under CAA section 302(k) does not mean 'unchanging,' the SSM exemption violates the CAA’s requirement that some section 112 standard apply continuously. Accordingly, we grant the petitions and vacate the SSM exemption."

In a final rule adopted in 2003, EPA “decided instead to adopt a less burdensome approach,” to the SSM regulation requiring members of the public to make a “specific and reasonable request” of the permitting authority to request the SSM plan from the source and thus making it more difficult to access and obtain. The Sierra Club challenged the 2003 Rule in a petition for review. The Natural Resources Defense Council (NRDC) also filed a petition for reconsideration on the ground that any limitation on the public availability of the SSM plans was unlawful. EPA agreed to take comment on the new SSM provisions, and the consolidated cases were held in abeyance pending reconsideration.

In 2006, EPA retracted the requirement that sources implement their SSM plans during SSM periods; and instead comply with the "general duty to minimize emissions.” EPA required a "post-event reporting" and eliminated the requirement that the Administrator obtain a copy of a source’s SSM plan upon request from a member of the public and determined that the public may only access those SSM plans obtained by a permitting authority; but the permitting authority was not "required to do so" -- it was discretionary.

The petitioners, petitioned for reconsideration and contended that the exemption from compliance with emissions standards during SSM events is both unlawful and arbitrary, and that the 2002, 2003, and 2006 rules unlawfully and arbitrarily fail to 'assure compliance' with 'applicable requirements' under Title V.

The majority Appeals Court ruled, "In sum, petitioners’ challenge to the exemption of major sources from normal emission standards during SSM is premised on a rejection of EPA’s claim of retained discretion in the face of the plain text of section 112. 'Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent'. NRDC, 489 F.3d at 1374 (quoting TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)). The 1990 Amendments confined the Administrator’s discretion, see New Jersey, 517 F.3d at 578, and Congress was explicit when and under what circumstances it wished to allow for such discretion, id. at 582. 'EPA may not construe [a] statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.' New Jersey, 517 F.3d at 583 (quoting Whitman, 531 U.S. at 485). Accordingly, we grant the petitions without reaching petitioners’ other contentions, and we vacate the SSM exemption. See New Jersey, 517 F.3d at 583 (citing Allied Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)).

The minority, dissenting opinion indicated, "I do not agree that we have jurisdiction over Sierra Club’s petition for judicial review. The original regulations at issue. . . exempt periods of startup, shutdown, and malfunction from opacity and non-opacity emission standards. When EPA promulgated these regulations in 1994, Sierra Club took no legal action. Yet under the Clean Air Act a petition for judicial review of an EPA regulation must be filed within 60 days of the regulation’s publication in the Federal Register. . ."

Access the complete opinion and dissent (click here).

Town of Marshfield v. Federal Aviation Administration

Dec 18: In the U.S. Court of Appeals, First Circuit, Case No. 07-2820. The Federal Aviation Administration (FAA) has authority to prescribe aircraft approach and departure patterns in order to minimize noise and ensure safety. In 2002, the agency approved a change in the runway layout of Logan Airport in Boston to include a new runway and, at the same time, began a study of improved noise abatement measures. The outcome was the "Boston Overflight Noise Study" (BONS), conducted with advice and participation by various organizations.

In implementing BONS, FAA adopted some of the report's "phase I" measures for the rerouting of aircraft to increase use of Logan approaches and departures over the ocean with shoreline crossings at higher altitudes. In finding that these measures required no environmental assessment (EA) or environmental impact statement (EIS), the FAA relied upon noise studies to measure the impact on surrounding communities. The Town of Marshfield, MA, opposed the new phase 1 measures, arguing that the new flight patterns would adversely affect its residents and sought review of the FAA's decision claiming violations of the National Environmental Policy Act (NEPA), the Federal Advisory Committee Act (FACA), and the FAA's own rules.

In analyzing the NEPA issues and denying the petition for review, the Appeals Court determined that FAA's noise exposure finding "is adequately based." Additionally, the Appeals Court said, "Marshfield seems to assert that an EA or EIS was required so long as the phase 1 measures were 'highly controversial,' which it regards as covering any introduction of new noise over inhabited areas and with opposition by a town or city. Although FAA Order 10501.1E, para. 304, uses the phrase 'highly controversial,' it makes clear that controversy is not decisive but is merely to be weighed in deciding what documents to prepare."

Access the complete opinion (
click here).

Salmon Spawning & Recovery Alliance v. US Customs & Border

Dec 18: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-1444. This case concerns the Endangered Species Act (ESA) and the scope of the jurisdiction of the United States Court of International Trade. Plaintiffs-Appellants Salmon Spawning and Recovery Alliance, et al (collectively Salmon Spawning) appeal a final judgment of the Court of International Trade dismissing their complaint against various Federal agencies and officials for lack of subject matter jurisdiction.

On July 15, 2008, the Federal Circuit issued a decision [
See WIMS 7/18/08] in which it concluded that the Court of International Trade erred in dismissing the case for lack of standing and remanded to the court to determine in the first instance whether plaintiffs’ claim under section 7(a)(2) of the ESA falls within the exclusive jurisdiction of the Court of International Trade. Salmon Spawning & Recovery Alliance v. United States, 532 F.3d 1338 (Fed. Cir. 2008). On August 29, 2008, defendants filed a petition for rehearing for the limited purpose of reconsidering statements made in this court’s original opinion regarding whether the Court of International Trade may exercise “supplemental” jurisdiction pursuant to 28 U.S.C. § 1367(a).

In response Salmon Spawning elected to take no position on the issue presented by the petition. All parties agreed that the relief requested by the petition would not alter the outcome of the appeal. The Appeals Court granted the petition solely to issue a revised opinion. The previous opinion was withdrawn. In its revised opinion the Appeals Court ruled, "the Court of International Trade’s dismissal of plaintiffs’ section 9 claim is affirmed. The court’s dismissal of the section 7 claim for lack of standing is reversed, and the case is remanded to the Court of International Trade to determine whether the surviving claim falls within its exclusive jurisdiction."

Access the complete opinion (
click here).