Friday, February 27, 2009

Sierra Club v. EPA

Feb 25: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-4485. According to the summary provided by the Sixth Circuit in its opinion, the Clean Air Act requires the U.S. EPA to object to an air-pollution permit if any person “demonstrates” to the EPA “that the permit is not in compliance” with the Act’s requirements. 42 U.S.C. § 7661d(b)(2). In August 2006, the Sierra Club petitioned the EPA Administrator to object to a permit issued by the Kentucky Division of Air Quality to the East Kentucky Power Cooperative, claiming it had “demonstrate[d]” non-compliance because the EPA previously had issued a notice of violation to the same company (about the same plant) in January 2003 and had filed a federal-court complaint against the same company (about the same plant) in January 2004.

The Appeals Court said, "The EPA declined to object. Because it reasonably interpreted § 7661d(b)(2) to mean that the agency may alter its position about a power plant’s compliance with the Act based on intervening events and because the Sierra Club does not challenge the impact of these intervening events on the power plant’s compliance with the Act, we deny the petition for review."

This case arises from the power company’s request for a renewal of its Title V permit for one of the coal-powered steam generators, known (not so descriptively) as Unit 2, at the Spurlock Station power plant in Maysville, Kentucky. The Kentucky agency granted the permit in 1999. In 2003, apparently after discovering these changes to the plant, the EPA issued a notice of violation, informing the company that its Unit 2 permit failed to address the PSD requirements stemming from these modifications.

In August 2006, the Sierra Club petitioned the EPA to object to the permit, arguing (as it did in its comments to the state agency) that the proposed permit was deficient because it failed to address the PSD requirements. In support, the Sierra Club relied solely on the fact that the EPA previously had issued a notice of violation and had filed a civil-enforcement action based on the same allegations.

In August 2007, while the parties waited for the district court to approve the consent decree, the EPA reached a decision on the Sierra Club’s petition. Although it granted the petition in part (on an unrelated issue), it declined to object to the power company’s failure to address the PSD requirements. Acknowledging its prior notice of violation and enforcement action, the EPA explained that they were “initial steps” in the enforcement process and did not reflect the agency’s final position as to whether the Title V permit for Unit 2 needed to include a PSD compliance schedule.

The Appeals Court said, "The question is this: Does the Act require the EPA to object to a permit request when the agency previously has filed a notice of violation and enforcement action regarding the same allegations about the same plant? The answer turns on the meaning of a statute that the EPA administers and thus turns on an application of the familiar Chevron framework. Unless the statute’s terms “directly address[] the precise question at issue,” Chevron says that we must defer to the EPA’s “reasonable” interpretation of the provision. Chevron, USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). . .

"Under these circumstances, the EPA acted within its authority in addressing the Sierra Club’s objection. Consistent with Chevron, the EPA reasonably construed § 7661d(b)(2) to mean that a prior notice of violation and enforcement action did not by themselves require it to object to a permit request. And consistent with the APA, the EPA did not arbitrarily or capriciously deny the Sierra Club’s request, after accounting not only for the agency’s prior actions but also for developments in that litigation."

Access the complete opinion (
click here).

Wednesday, February 25, 2009

American Farm Bureau Federation v. EPA

Feb 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 061410, consolidated with 06-1411, 06-1415, 06-1416, 06-1417.In this high profile case involving many states, environmental organizations and industry groups the Appeals Court considered several challenges to U.S. EPA's most recent revision of the National Ambient Air Quality Standards for particulate matter [See WIMS 9/21/06]. The Appeals Court said, "Because the agency promulgated standards for fine particulate matter that were, in several respects, contrary to law and unsupported by adequately reasoned decisionmaking, we grant the petitions for review in part and remand those standards to the agency for further proceedings. We deny the petitions for review of the agency’s standards for coarse particulate matter because those standards are not arbitrary, capricious, or otherwise contrary to law."

The court explained the three sets of petitioners, joined by several intervenors and amici, filed petitions for review of the EPA’s final rule. The American Lung Association, Environmental Defense, and the National Parks Conservation Association (environmental petitioners) challenge the primary annual and secondary standards for fine PM as well as the elimination of the annual standard for coarse PM. Several states and state agencies (state petitioners) challenge the primary annual fine PM standard. The American Farm Bureau Federation, the National Pork Producers Council, the National Cattlemen’s Beef Association, and the Agricultural Retailers Association (industry petitioners) challenge the EPA’s retention of the PM10 indicator for coarse PM and the 150 µg/m3 level for the daily coarse PM standard.

The Appeals Court explains the various Parts of its decisions as follows. "In Part II we grant in part the petitions for review of the primary annual fine PM standard, brought by the states and environmental groups, and remand the standard to the EPA for reconsideration. The EPA failed to explain adequately why an annual level of 15 µg/m3 is 'requisite to protect the public health,' including the health of vulnerable subpopulations, while providing 'an adequate margin of safety.'

"In Part III we grant in full the petition for review of the secondary NAAQS for fine PM brought by the environmental groups and remand them to the EPA for reconsideration. The EPA unreasonably concluded that the NAAQS are adequate to protect the public welfare from adverse effects on visibility.

"In Part IV we deny the petitions for review of the primary daily standards for coarse PM brought by the industry groups. We do not reach the question raised by the amicus National Association of Home Builders whether the EPA lawfully could have distinguished between urban and nonurban coarse PM in selecting the coarse PM indicator.

"Finally, in Part V, we deny the petition for review of the EPA’s revocation of the primary annual standard for coarse PM brought by the environmental groups."

New York Attorney General Andrew Cuomo who led a coalition of 18 states and cities in the case announced that they had "won a major victory in a challenge of lax Bush Environmental Protection Agency (EPA) standards for fine soot pollution that had wholly failed to protect public health, particularly for children, elderly people and other vulnerable populations." Attorney General Cuomo said, “In an epic victory for New York State and the entire country, my office has ensured that politics don’t come in the way of public health and environmental protection. The EPA is charged with protecting the environment, yet the Bush administration had misconstrued the purpose of this agency, using it as a tool to facilitate pollution instead of combating it. As a result of this victory, millions of New York residents will have a chance to breathe easier. My office will work with the new Obama administration to make sure that new more protective soot standards are issued quickly.”

The states, cities and other state agencies joining Cuomo in the challenge included: California, Connecticut, Delaware, Illinois, Maine, New Hampshire, New Jersey, New Mexico, Oregon, the Pennsylvania Department of Environmental Protection, Rhode Island, Vermont, the District of Columbia and the South Coast Air Quality Management District. The States of Arizona, Maryland and Massachusetts also joined as friends of the court.

The American Lung Association (ALA) issued a release saying they challenged the EPA’s standards, "because the science clearly showed that the standards set in 2006 failed to adequately protect public health." Stephen Nolan, American Lung Association National Board Chair said, “Strong, protective national air quality standards are fundamental for healthy air. Today’s triumph will save countless lives and is an important step forward in the American Lung Association’s continued work to fight for air."

Earthjustice attorney Paul Cort who represented ALA, Environmental Defense Fund, and National Parks Conservation Association in the case said, "This is a huge victory for anyone who breathes. Particulate matter is one of the most deadly forms of pollution out there today. The Bush EPA refused to follow the advice of leading health advocates as well as its own scientists who argued that a stronger standard was needed to protect public health. Today's ruling corrects that injustice."

Bob Stallman, President, American Farm Bureau Federation issued a statement saying, “Because of Tuesday’s ruling by the U.S. Court of Appeals for the District of Columbia Circuit that upheld the Environmental Protection Agency’s regulatory standards related to rural dust, farmers and ranchers could face additional and unwarranted regulations as states attempt to comply with federal standards. Farm Bureau challenged the EPA’s Clean Air Act National Ambient Air Quality Standards rule for coarse particulate matter, but the court chose to disregard the overall lack of scientific support for the rule.

“Farm Bureau is disappointed in the outcome and concerned about costly measures to regulate rural dust that could be imposed on our farmers and ranchers. EPA’s own studies had failed to demonstrate adverse health effects associated with rural dust, which comes mostly from naturally occurring organic materials such as plants, sand and soil. Most disappointing is that the court suggested industry had the burden of proving that dust from agricultural sources was safe, rather than EPA proving within a margin of safety that the emissions caused harm. These dust standards are revised every five years, so it is difficult to predict the final impact of the ruling. However, during a time when farmers and ranchers are already struggling with the economics of producing food and fiber, the possibility of this leading to more regulatory costs does not bode well, especially since science does not show that any health benefits would result.”

Access the complete 50-page opinion (click here). Access a release from Attorney General Cuomo (click here). Access a release from ALA (click here). Access a release from Earthjustice (click here). Access the statement from the Farm Bureau (click here).

USA v. Holden

Feb 24: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 07-5573, 07-5574. The appeal involves convictions arising out of an investigation into false reporting of pollutant levels in wastewater discharged by a water treatment facility in Mount Pleasant, Tennessee. Mike Holden, the operator of the plant, was convicted of knowingly falsifying and concealing material facts in a matter within the jurisdiction of U.S. EPA in violation of 18 U.S.C. §§ 2, 1001(a), and of falsifying documents with the intent to impede an investigation within the jurisdiction of the EPA in violation of 18 U.S.C. §§ 2, 1519. His father, Larry Holden, the Superintendent of Public Works for Mount Pleasant, was convicted of knowingly falsifying and concealing material facts in a matter within the jurisdiction of the EPA.

The Holdens challenge their convictions on four grounds. First, they argue that the district court abused its discretion by excluding evidence that Marty Roddy had been treated for marijuana dependency in 1992. Second, they argue that the district court committed plain error by admitting into evidence a negative evaluation of the plant from before the charged period. Third, they argue that the district court abused its discretion by refusing to admit statements by Mike Holden under the “rule of completeness.” Fourth, they argue that the evidence presented at trial was insufficient to find James Larry Holden guilty beyond a reasonable doubt.

The Appeals Court ruled, "We find that no reversible error occurred at trial, and we thus affirm."

Access the complete opinion (
click here).

Saturday, February 21, 2009

Moshe Leib v. Hillsborough County Public Transportation

Feb 19: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-14271. Moshe Leib (Leib) appealed from the district court’s dismissal of his suit, brought under 42 U.S.C. § 1983, against the Hillsborough County Public Transportation Commission (HCPTC, or the Commission) for denying him permission to operate a Toyota Prius as one of the limousines offered by his transportation service. Leib argues that the HCPTC violated his due process and equal protection rights, and that the Commission’s rules are unconstitutionally vague and impermissibly burden interstate commerce. The district court dismissed Leib’s complaint under Rule 12(b)(6) and the Appeals Court affirmed the decision.

Leib owns and operates TB, a limousine service in the Tampa Bay area. Seeking to offer customers an "environmentally-friendly” alternative to traditional limousines, Leib bought a Prius. In order to operate the Prius as a limousine within Hillsborough County, Leib had to obtain a permit from the HCPTC, the administrative agency charged by the Florida State Legislature with regulating the operation of public vehicles on Hillsborough County’s public highways. The Commission denied Leib’s request on the ground that the Prius did not qualify as a “luxury” vehicle, and thus did not meet the definition of “limousine” in HCPTC Taxi Rule 1.15. A subsequent waiver request was also denied by HCPTC.

The Appeals Court said, ". . .Leib’s argument rests on a factual mistake: he argues that 'environmentally-friendly passengers that desire to utilize ecologically superior transportation are left with no alternative options whatsoever as a result of the HCPTC’s complete prohibition of eco-friendly vehicles for use as limousines.' This is simply false: an environmentally-friendly vehicle may qualify as a limousine so long as it meets Rule 1.15’s luxury and other requirements. Accordingly, Leib’s interstate commerce claim was properly dismissed."

Access the complete opinion (click here).

Thursday, February 19, 2009

Piedmont Environmental Council v. FERC

Feb 18: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 07-1651, 07-1864, 07-1865, and 07-1866. This important case involving dozens of states, NGOs, electric utilities and associations. Two state utilities commissions and two community interest organizations petition for review of several rulemaking decisions made by the Federal Energy Regulatory Commission (FERC or the Commission) in connection with FERC’s implementation of the new § 216 of the Federal Power Act (FPA) and the National Environmental Policy Act (NEPA).

Section 216 of the FPA, which was added in 2005, gives FERC jurisdiction in certain circumstances to issue permits for the construction or modification of electric transmission facilities in areas designated as national interest corridors by the Secretary of Energy. The majority opinion reversed in part, affirmed in part, vacated in part, dismissed in part without prejudice, and remanded the opinion. The wrote a separate opinion concurring in part and dissenting in part.

The Fourth Circuit majority in this case summarized its decision as follows: "First, we reverse FERC’s expansive interpretation of the language in FPA § 216(b)(1)(C)(i) that grants FERC permitting jurisdiction when a state commission has 'withheld approval [of a permit application] for more than 1 year.' The phrase does not include, as FERC held, the denial of an application. Second, we affirm FERC’s determination that it was not required to prepare an environmental assessment or an environmental impact statement in connection with its issuance of procedural regulations dealing with the content of permit applications under § 216 of the FPA. Third, we conclude that FERC violated Council on Environmental Quality (CEQ) regulations when it failed to consult with the CEQ before amending its (FERC’s) NEPA implementing regulations to cover § 216 permit applications. We therefore vacate the amendments to the NEPA regulations and remand for FERC to engage in the required consultation with the CEQ. And fourth, we dismiss without prejudice, because it is not ripe, the part of one petition for review that seeks to challenge the content of the amendments (which we are vacating) to FERC’s NEPA-implementing regulations."

The minority dissent in part said, "because I believe that FERC correctly interpreted 'withheld approval [of a permit application] for more than 1 year' in 16 U.S.C.A. § 824p(b)(1)(C) (West Supp. 2008) to include the failure or refusal to grant a permit application for more than one year in cases in which the permit application was denied, I respectfully dissent from the contrary holding."

According to a report in the Mid-Hudson News, U.S. Senator Charles Schumer (D-NY) said the decision was a victory and indicated, “This decision puts the kibosh on NYRI’s effort to do an end-around local law and correctly determines that New York State should have the preeminent role in siting projects like NYRI. NYRI’s proposed path remains unduly intrusive and would have damaging impacts on parks, vista and communities from Utica to Chenango to the Catskills to Orange County.”

Christopher Miller, President of the Piedmont Environmental Council (PEC) said, "The decision directly upholds a State's right to reject a transmission line project without fear of the federal government stepping in to overrule that State's determination. In plain language, the utilities do not get a second chance if the State rejects a line based upon the merits. The court also ruled that FERC must consult with the Council on Environmental Quality to ensure compliance with the National Environmental Policy Act."
PEC indicated the Court's decision "overturns FERC's hard-charging, environment-be-damned approach to fast-tracking transmission line siting throughout the northeast and southwest corridors. The Court's decision is a blow against heavy-handed federal preemption and the ruling restores a semblance of federal-state balance in the overall transmission line-siting process."

PEC indicated that the FERC lawsuit was the first of two filed by PEC against the previous Administration's attempt "to fast-track transmission line siting through much of the U.S." The second, which seeks to overturn the Department of Energy's designation of multi-state corridors for transmission line siting [
See WIMS 3/7/08], is pending before the Ninth Circuit Court of Appeals in San Francisco.

Access the complete opinion and partial dissent (
click here). Access the Mid-Hudson News (click here). Access a release from PEC (click here).

Tuesday, February 17, 2009

Ohio Valley Environmental Coalition v. Elk Run Coal Co.

Feb 13: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 07-1355, 07-1479, 07-1480, 07-1964, 07-2112. This is a high profile case on the controversial issue of mountaintop mining, involving dozens of parties Plaintiffs-Appellees Ohio Valley Environmental Coalition, the Coal River Mountain Watch, and the West Virginia Highlands Conservancy (hereinafter referred to collectively as OVEC) challenge the U.S. Army Corps of Engineers (Corps) issuance of four permits allowing the filling of West Virginia stream waters in conjunction with area surface coal mining operations.

Granting judgment for OVEC, the district court rescinded the permits as violations of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA). The court also enjoined all activity under those permits and remanded to the Corps for further proceedings consistent with its order. Separately, in an order dated June 13, 2007, the district court provided declaratory relief to OVEC, holding that the stream segments linking the permitted fills to downstream sediment treatment ponds were "waters of the United States" and that the Corps lacked authority under the CWA to permit discharge from the fills into the stream segments.

The Corps appealed the two orders and in a split decision, the Fourth Circuit reversed and vacated the district court’s opinion and order of March 23, 2007, and vacated the district court’s injunction. Additionally, the Fourth Circuit reversed the district court’s June 13, 2007, grant of declaratory relief and remanded the case for further proceedings consistent with its opinion.

The Appeals Court provides a straightforward explanation of the controversial practice of mountain top removal coal mining saying,"The mountaintop removal method of surface coal mining, pioneered in West Virginia, involves the blasting of the soil and rock atop a mountain to expose coal deposits below. While mining operations are ongoing, the overburden is hauled or pushed into adjacent valleys. This excavated overburden is known as "spoil." Once the coal has been extracted, efforts are made to re-contour the mountaintop by replacing the removed overburden, but stability concerns limit the amount of spoil that can be returned to the area. In its natural state, the spoil material is heavily compacted; once excavated, however, the loosening of the rock and soil and incorporation of air causes significant swelling. As a result, large quantities of the blasted material cannot be replaced, and this excess spoil (overburden) remains in the valley, creating a 'valley fill' that buries intermittent and perennial streams in the process.

"Water that collects in the fill must be moved out to ensure the fill’s continued stability. Thus, an underdrain system is constructed by placing large boulders up to and above the ordinary high-water mark of the stream. The collected water is then channeled into a treatment pond, where sediment from the runoff is allowed to settle. Sediment ponds usually are constructed in existing streambeds, using earth and rock to create an embankment. After sediments have settled out of the fill runoff, the treated water is discharged from the sediment pond back into existing streams. When practicable, a sediment pond will be constructed in the streambed immediately adjacent to the end (or "toe") of the fill. But, because West Virginia’s steep, mountainous topography often prevents this kind of positioning, a short stream segment is frequently used to move runoff from the fill downstream to the sediment pond. Once a valley fill is stabilized, the embankments of the sediment pond are removed, and the ponds and the stream segments are restored to their pre-project condition."

On appeal, the Corps contends that it is entitled to deference on its determination about the scope of its NEPA analysis and that its findings on individual and cumulative impacts and mitigation were not arbitrary or capricious. The agency further argues that its interpretation of its CWA regulations -- treating stream segments and sediment ponds as part of a unitary waste treatment system and thus excepting them from separate CWA § 402 permitting -- was entitled to deference. Intervenors have raised these same challenges to the district court’s ruling, but also argued that OVEC’s stream segment claim was barred in the first place under principles of res judicata [a matter already decided by the court].

The majority Appeals Court indicates that, "A complex statutory framework undergirds the regulation of valley fills and associated sediment ponds, and it is this framework that provides the foundation for our opinion." The Appeals Court says it appreciates "the statutory tightrope that the Corps walks in its permitting decisions" and rules, "The Corps, in permitting sediment ponds and accompanying stream segments under its § 404 authority, is attempting to harmonize the two statutes’ [Clean Water Act & Surface Mining Control and Reclamation Act] goals: ensuring that mining operations can proceed while maintaining the highest level of water quality possible outside of the mining area."

On the issue of "in-stream sediment ponds," the Appeals Court ruled, "Sediment ponds represent the 'best technology currently available' for the treatment of sedimentary runoff from surface mining valley fills. In fact, the regulations of the Department of the Interior’s Office of Surface Mining specifically contemplate the use of in-stream sediment ponds. 30 C.F.R. § 816.46(c) (2008). While ideally these ponds would be located immediately adjacent to the fills, the steep Appalachian terrain often does not allow this result. The topographical realities of the area make stream segments a necessary component of the construction of a waste treatment system for valley fill runoff. (See, e.g., J.A. 653.) This system, in turn, is necessary to ensure that water released from the mining area into existing streams meets CWA § 402 standards. The Appeals Court ruled "the Corps’ interpretation of its authority was reasonable in light of the CWA" and the Agency is "entitled to deference."

The dissenting minority opinion, which concurred in the parts of the majority opinion upholding the scope (or physical boundary) of the Corps’ NEPA analysis and the Corps’ interpretation of its regulatory definition of "waters of the United States,"the dissenting justice said, "In upholding the Corps’ interpretation of its obligations under § 230.11(e), the majority declines to give effect to the unambiguous requirements of the regulations. . . By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources. . ."

Earthjustice, the public interest law firm representing several of the environmental organizations in the case issued a release saying, "The ruling will permit mining companies to conduct devastating mountaintop removal coal mining operations without acting to minimize stream destruction or conducting adequate environmental reviews. As a result, Appalachia could now be facing up to 90 new mountaintop removal coal mining operations, which would destroy huge swaths of the Appalachian Mountains." Steve Roady, Earthjustice attorney said, "We believe the decision is wrong on the law and the science. This fight is not over until mountaintop removal mining is over. We will continue to litigate, and in addition, the new administration must take immediate steps to curb the terrible practice of mountaintop removal mining and undo the mistakes of the past."

Access the complete opinion and dissent (
click here). Access a release from Earthjustice and link to additional information (click here). Access links to various media reports on the ruling (click here).

Friends Milwaukee v. Milwaukee Metro

Feb 13: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-1103. The Appeals Court comments on the long history of litigation on the case saying, "After over six years of litigation and two trips back and forth between the district court and this court, we are hopeful that the sun is breaking through." The case involves Friends of Milwaukee’s Rivers and Lake Michigan Federation, n/k/a Alliance for the Great Lakes (collectively, Friends), and their citizens’ suit against the Milwaukee Metropolitan Sewerage District (MMSD) under the Federal Water Pollution Control Act (the Clean Water Act or the Act), alleging that certain sanitary sewer overflows that occurred between January 1, 1995 and September 25, 2001 were violations of MMSD’s Clean Water Act permit and of the Act itself. The State of Wisconsin (the State) also filed suit against MMSD.

On May 19, 2008, the WDOJ and MMSD resolved the WDOJ’s 2005 enforcement action with a new stipulation (the 2008 Stipulation). The district court found that the 2002 Stipulation was a diligent prosecution for privity purposes, and therefore dismissed plaintiffs’ suit on res judicata grounds. Plaintiffs appealed the dismissal as well as the denial of their motions to supplement the record. The Appeals Court says, "The questions presented in this successive appeal are relatively narrow. Friends do not challenge the sufficiency of the evidence supporting the district court’s decision." The Appeals Court concludes that the, "district court was within its discretion when it found that the letter did not set forth the activities of the EPA. Moreover, even if any abuse of discretion had occurred, it would have been harmless."

Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).]

Hill v. Gould

Feb 13: In the U.S. Court of Appeals, DC Circuit, Case No. 07-5026. After winning a lawsuit against the Secretary of the Interior, Joyce M. Hill filed an application to recover her attorney’s fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412. The district court denied the application on the basis that the Secretary’s position at the merits stage was substantially justified. Hill appealed. The Appeals Court affirmed the district court denial.

The original case involved numerous charges of wrongs the mute swan species had allegedly suffered. Hill's principal claim was that the Secretary of the Interior improperly denied the species the protection of the Migratory Bird Treaty Act. The district court held that the Secretary’s List of Migratory Birds rested on "a permissible construction of the Treaty Act" and granted the Secretary’s motion for summary judgment. The DC Circuit overruled saying, "the court held that the Secretary’s exclusion of the mute swan from the protected bird list was arbitrary and capricious under the Administrative Procedure Act."

Access the complete opinion (
click here).

Monday, February 9, 2009

Sierra Club v. Wagner (USDA)

Feb 6: In the U.S Court of Appeals, First Circuit, Case No. 08-1978. The Sierra Club, along with two other conservation groups including Center for Biological Diversity and Wilderness Society (Sierra Club), challenged the U.S. Department of Agriculture's (USDA's) Forest Service's approval of two forest resource management projects in the White Mountain National Forest (Forest or WMNF) -- the Than Forest Resource Management Project (Than Project) and the Batchelder Brook Vegetation Management Project (Batchelder Project). The district court decision, upheld the Forest Service.

Following adoption of a 2005 plan for the forest that included "inventoried roadless areas" (IRAs), the Forest Service proposed to allow timber harvesting of approximately 929 acres in the Than project, creating up to 231 acres of early successional habitat. The proposal would allow some existing roads to receive maintenance or reconstruction, and a 500 foot section of new road was planned. In an environmental assessment indicating certain possible adverse effects of the Than Project on the Wild River Inventoried Roadless Area -- including sediment inputs to streams, some soil disturbance, and effects on stream temperature -- the Forest Service concluded that the project would not significantly alter the character of the area or the qualities which qualified it for inclusion in the inventory. A similar finding was delivered for the Batchelder project. The groups requested a stay pending appeal which was denied by the Appeals Court, but the Appeals Court expedited the case.

The Appeals Court affirmed the district court decision and concluded, ". . . the evident intent to allow public comment on FONSI [Finding of No Significant Impact] findings seems to have been satisfied here in spades. An agency that adopts a FONSI without seeking input can be expected at least to accept comments before acting on the merits of a decision; but here both EAs were circulated in draft form and comments solicited even before any FONSI was finally adopted. Why this does not satisfy the purpose of the thirty day rule Sierra Club does not explain."

Access the complete opinion (
click here).

Friday, February 6, 2009

South Coast Air Quality Management v. EPA

Feb 6: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1030. The South Coast Air Quality Management District, the Santa Barbara County Air Pollution Control District, and Friends of the Earth challenged the final rule promulgated by U.S. EPA that extended the deadline for the EPA to establish more stringent emissions standards for large marine diesel engines. The Appeals Court ruled that "EPA reasonably implemented the Clean Air Act (CAA) in extending the deadline, wherefore we deny the petitions for review."

In its conclusion the Appeals Court said, "In view of the issues remaining for the EPA to resolve before it sets Tier 2 standards, we hold the Extension Rule deferring the deadline for promulgating a regulation is neither arbitrary nor unlawful. At the oral argument the petitioners allowed that they would not be objecting to the new deadline if they could be sure the EPA would adhere to it. The EPA gives that assurance in the Extension Rule, id. at 68,520/2, and the record, which demonstrates the EPA has made progress toward promulgating Tier 2 standards, see id. at 69,522, suggests no reason to doubt it. We rely upon that assurance in holding that the Rule is lawful. In sum, because the Rule commits the EPA to proceed with the two-tiered approach approved in Bluewater Network, and to resolve outstanding issues and set standards no later than December 17, 2009, the petitions for review are denied."

Access the complete opinion (click here). Access EPA's diesel, boats and ships website for more information (click here).

Thursday, February 5, 2009

USA v. Cundiff

Feb 4: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 05-5469/5905; 07-5630. The case involves an interpretation of the U.S. Supreme Court decision in Rapanos v. United States, 547 U.S. 715 (2006) and the definition of wetlands and the “waters of the United States.” By way of background, the Appeals Court explains that after eight years of failed negotiations and ignored orders, the United States sued George Rudy Cundiff (who goes by Rudy) and his son, Christopher Seth Cundiff (who goes by Seth), seeking injunctive relief and civil penalties against them for discharging “pollutants” into “waters of the United States” without a permit in violation of the Clean Water Act. 33 U.S.C. § 1362.

The district court granted summary judgment for the government, imposed injunctive relief in the form of a restoration plan for the Cundiffs’ wetlands, and imposed a civil penalty of $225,000. All but $25,000 of that penalty was suspended, however, provided that the Cundiffs implemented the restoration plan. The district court also dismissed the Cundiffs’ array of statutory, common law, and constitutional counterclaims.

The Appeals Court indicates that while the original appeal in this case was pending, the Supreme Court issued its "splintered ruling" in Rapanos, which defined the Act’s jurisdiction over “waters of the United States.” In light of Rapanos, the Appeals Court returned the case to the district court to reconsider whether jurisdiction was proper over the Cundiffs’ wetlands. According to the Appeals Court, "The district court determined that it was because the Cundiffs’ wetlands were in fact waters of the United States, and the Cundiffs appealed. We affirm the district court on all grounds."

The Appeals determined that, "the Cundiffs "actively filled the wetlands with dredged spoil and covered roughly 5.3 acres of wetlands next to about 11,900 feet of ditches", thus the Appeals Court said, ". . . they discharged a pollutant under the Act." The Cundiffs argue that their activities fall into either the farming exception, § 1344(f)(1)(A), or the drainage ditch maintenance exception, § 1344(f)(1)(C). The Appeals Court rejects those arguments, and says, "Even if the Cundiffs’ activities fell within either the farming or drainage ditch maintenance exemptions, they would still have been required to get a permit under the 'recapture provision,' 33 U.S.C. § 1344(f)(2), which states that a permit is still required whenever a dredging activity has 'as its purpose bringing an area of the navigable waters into a use to which it was not previously subject,' and the 'flow or circulation of navigable waters may be impaired or the reach of such waters reduced.'" The Appeals Court ruled, ". . . the district court properly granted summary judgment on their liability."

Access the complete opinion (
click here). Access multiple postings on the WIMS-eNewsUSA blog relating to the Rapanos decision (click here). [*Water]