White Tanks Concerned Citizens v. Strock (Corps of Engineers)

Apr 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-15659. According to the Appeals Court explanation, this environmental dispute is between developers who dream of building thousands of homes in the now relatively undisturbed desert near the White Tank Mountains west of Phoenix, Arizona, and a non-profit organization formed essentially to oppose such developments. The focus of the dispute is the adequacy of the study that went into the decision by the Army Corps of Engineers (Corps) to grant a permit under the Clean Water Act (CWA) so that the developers could fill several "ephemeral washes" that run through the project area.

The Appeals Court said, "The scope of the Corps’ jurisdiction under the Clean Water Act is not entirely clear after the Supreme Court’s four-four-one decision in Rapanos v. United States, 547 U.S. 715 (2006), but there has never been any direct challenge to the exercise of jurisdiction before the Corps in this case, and the existence of the Corps’ jurisdiction is not disputed before this court."

Rather, the Appeals Court said, the dispute is over which of the Ninth Circuit's prior decisions should control. In summary, the case focuses on the question of whether it is factually more similar to the Ninth Circuit's decision in Save Our Sonoran v. Flowers, 408 F.3d 1113 (9th Cir. 2005) (SOS), or the Ninth Circuit's decision in Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d 1105 (9th Cir. 2000) (Wetlands).

In SOS, the Ninth Circuit held that before the Corps could grant a permit to fill washes similar in nature to those at issue in the appeal, the Corps must consider the entire scope of that development, because the pattern of washes in the area made any development avoiding the washes impossible. In Wetlands, the Ninth Circuit considered a project that required filling natural saltwater wetlands, but in mitigation created a larger freshwater wetland. The Appeals Court held that the Corps properly confined its environmental review to the wetlands and was not required to study the environmental effects on the upland area, principally because the development of the upland area could proceed independent of the wetlands project.

According to the Appeals Court, the district court in the current case, delivered "a thoughtful opinion," concluding that it should follow Wetlands because it agreed with the analysis of the Corps in the district court that the bulk of the project could be developed independently, without affecting the area traversed by the washes.

The Appeals Court concludes, "Upon a close review of the district court and administrative records, including the permit application itself and concerns that the U.S. EPA and the Fish and Wildlife Service (FWS) raised before the Corps, we conclude that the washes here were, in most material respects, more like the washes in SOS than those in Wetlands. These washes were dispersed throughout the project area in such a way that, as a practical matter, no large-scale development could take place without filling the washes. We therefore hold that the Corps’ Finding of No Significant Impact (FONSI) was made on the basis of too narrow a scope of analysis, and we reverse the district court." Further, the case is remanded "for entry of an appropriate injunction against the issuance of a Section 404 permit until the Corps performs the requisite environmental analysis in accordance with this opinion."

Access the compete opinion (click here).

State of New Mexico v. Bureau of Land Management

Apr 28: In the U.S. Court of Appeals, Tenth Circuit, Case No.06-2352. As explained by the Appeals Court, the litigation concerns the environmental fate of New Mexico’s Otero Mesa, the largest publicly-owned expanse of undisturbed Chihuahuan Desert grassland in the United States (over 1.2 million acres). From 1998 to 2004, the Bureau of Land Management (BLM or the Agency) conducted a large-scale land management planning process for federal fluid minerals development in Sierra and Otero Counties, where the Mesa is located. Ultimately, the Agency opened the majority of the Mesa to development, subject to a stipulation that only 5% of the surface of the Mesa could be in use at any one time.

Invoking the National Environmental Policy Act (NEPA), the Federal Land Management Policy Act (FLPMA), and the National Historic Preservation Act (NHPA), the State of New Mexico and a coalition of environmental organizations led by the New Mexico Wilderness Association (NMWA) challenged in federal district court the procedures by which BLM reached this determination. NMWA also challenged BLM’s decision not to consult with the Fish and Wildlife Service (FWS) under the Endangered Species Act (ESA) regarding possible impacts of the planned development on the Northern Aplomado Falcon.

The district court rejected the challenges, save for the plaintiffs’ argument that BLM erred in beginning the leasing process on the Mesa before conducting additional analysis of site-specific environmental impacts flowing from the issuance of development leases. The Appeals Court ruled, "Discerning serious flaws in BLM’s procedures, we affirm the district court’s conclusion that NEPA requires BLM to conduct site-specific analysis before the leasing stage but reverse its determination that BLM’s plan-level analysis complied with NEPA. Moreover, we affirm its conclusion that BLM complied with public comment provisions in FLPMA, and we vacate as moot the portion of the district court’s order addressing NMWA’s ESA claims."

New Mexico Attorney General Gary King commented on the decision and said, "This is great news for those who believe as I do that the preservation of Otero Mesa is critical to the health of people, wildlife and the environment In southeastern New Mexico. This decision confirms the position of the Attorney General's office that the Otero Mesa development plan did not properly take into consideration all the environmental impacts to the habitat and protection of groundwater in the area so this is a huge victory for us." The AG indicated in a release that the 10th Circuit reversed Judge Bruce Black on most issues concerning the propriety of issuing oil and gas leases on Otero Mesa. The Bureau of Land Management will likely have to complete an environmental impact statement on the entire Otero Mesa management plan; at least consider totally closing Otero Mesa to development; show more evidence for conclusions about impacts on the area's aquifer and; conduct further analysis before leasing.

Access the complete opinion (click here). Access the statement from the NM AG (click here). Access the New Mexico Wilderness Association website for more information (click here).

U.S. Bank National Association v. U.S. EPA

Apr 20: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-3083. Eagle-Picher Technologies, LLC (EP Tech), an electronics manufacturer, filed for Chapter 11 bankruptcy in 2005. The United States, on behalf of U.S. EPA and the Department of Interior, filed a claim in the bankruptcy proceeding against EP Tech under CERCLA -- the Comprehensive Environmental Response, Compensation and Liability Act of 1980. The Appeals Court indicates that under CERCLA, the federal government may recover the cost of cleaning up hazardous waste from the parties responsible for its release.

Over the objections of U.S. Bank, the bankruptcy trustee, the bankruptcy court found EP Tech liable for $357,246 of already-incurred costs and $8,735,434 in estimated future costs for the clean-up of groundwater and soil contamination near a now-vacant manufacturing plant in Socorro, New Mexico. U.S. Bank appealed to the district court, which affirmed the finding.

U.S. Bank appealed to the Sixth Circuit, arguing: (i) EP Tech is not liable under CERCLA for hazardous waste releases that occurred before EP Tech acquired an interest in the Socorro plant in 1998; (ii) even if EP Tech is liable for the clean-up costs at the plant, genuine issues of material fact precluded the bankruptcy court from concluding that EP Tech was responsible for contamination detected at a well located a mile and a half south of the plant; and (iii) the bankruptcy court improperly excluded evidence at the hearing on estimating the future cost of cleaning up the hazardous substances.

The Appeals Court said in affirming the finding, "the bankruptcy court’s decision was legally correct, and it did not abuse its discretion by excluding evidence of future costs."

Further explaining its decision the Appeals Court said, "Our review of the hearing transcript indicates, contrary to U.S. Bank’s characterization, that the bankruptcy court was well-aware that, notwithstanding the finality of the divisibility issue, U.S. Bank was allowed to challenge the estimate derived from EPA’s proposed clean-up strategy. And the transcript shows that the court gave both parties wide latitude. The court appreciated the overlap between the divisibility issue and the estimation of future costs. . . It did not categorically bar questions about the scope of the contamination, and instead probed each of the experts on how their proposed clean-up plans fit with the available data. . ."

Access the complete opinion (click here).

Arizona Public Service Company v. EPA

Apr 14: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-9546 & 07-9547. Arizona Public Service Company (APS), operator and majority owner of the Four Corners Power Plant (Plant), and Sierra Club, Diné CARE, Diné for the C-Aquifer, and San Juan Citizens Alliance (collectively Environmentalists) challenged a regulation promulgated by the U.S. EPA (EPA). The regulation at issue is known as a source-specific, Federal implementation plan (Federal plan) and was enacted pursuant to sections 301(a) and (d)(4) of the Clean Air Act, 42 U.S.C. §§ 7601(a) and (d)(4). The Federal plan limits particular air emissions from the Plant.

The Appeals Court indicated that because all parties agree that the Federal plan provision pertaining to fugitive dust should be remanded, it did not address those emissions limit in its discussion of the facts. The Appeals Court granted EPA’s motion for voluntary remand and granted in part and denied in part the petitions for review. In particular, the Appeals Court denied APS’s petition for review; denied the Environmentalists’ petition for review, and affirmed the remainder of the Federal implementation plan.

On the APS challenge, the Appeals Court said, "We hold the EPA has established 'an adequate rationale' for the affirmative defense. . . We conclude the EPA has not acted arbitrarily or capriciously. The EPA identified a regulatory need and enacted a source-specific Federal plan to fill this gap. The EPA has neither relied on factors which Congress did not intend it to consider nor failed to consider any important aspect of the problem. . . The EPA addressed all substantive aspects of APS’s comments: startup, shutdown, malfunction, and saturated stack conditions. The EPA based its decision on the evidence before it, i.e., current air quality data for the area surrounding the Plant, and incorporated its negotiations with APS, the Navajo Nation, and the State of New Mexico into its plan. We can ascribe APS’s disagreement with the EPA’s final action to a difference in view."

Regarding the Environmentalists' challenges, the Appeals Court said, "In sum, the key criterion in determining the adequacy of any plan is attainment and maintenance of the national air standards. . . The Federal plan at issue codifies in part the New Mexico plan -- previously studied, analyzed, approved, and in place -- and relies on current data demonstrating that the air quality in the area of the Plant is better than the national air standards for criteria pollutants. Therefore, the EPA had no need to conduct additional modeling and analysis to demonstrate the adequacy of the plan, a fact the EPA already knew. The Federal plan, by necessity, is adequate because the plan is but a stricter version of the satisfactory emissions limits already applied by the Plant and implemented throughout the State of New Mexico. Because the EPA’s interpretation of its own regulation is not 'plainly erroneous or inconsistent with the regulation,' we must defer to the EPA."

Access the complete opinion (click here).

Columbia Venture LLC v. SC Wildlife Federation

Apr 3: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 05-2398, 06-1072, 08-1033, & 08-1034. The Federal Emergency Management Agency (FEMA), the South Carolina Wildlife Federation, et al (Defendants) jointly appeal the district court’s order vacating the 2001 base flood elevation determinations adopted by FEMA for Richland County, South Carolina. The district court vacated these determinations because of FEMA’s failure to timely publish notice in the Federal Register as required by 42 U.S.C. § 4104(a). Because Columbia Venture did not establish that it was prejudiced by this failure to publish, the Appeals Court reversed the district court’s Order of Vacatur and remand the case for further proceedings.

The Appeals Court explains that The sole grounds for an appeal under § 4104(b) is a claim that the flood elevations are scientifically or technically incorrect. FEMA must "review and take fully into account" any submitted data that tends to "negate or contradict the information upon which [the] proposed determination is based." Once FEMA resolves the administrative appeal,
any appellant aggrieved by its final determination has 60 days to appeal to the federal district court where the community is located. In 2005, Columbia Venture first learned of FEMA’s defective publication. It filed a motion to vacate the final base flood elevation determinations for the Congaree River, arguing that FEMA’s failure to comply with § 4104(a) rendered those determinations null and void. The district court granted the motion in favor of Columbia Venture. Defendants timely appealed.

The Appeals Court said FEMA does not dispute that it failed to timely publish notice of its August 1999 proposed determinations in the Federal Register in violation of § 4104(a). However, a failure to timely publish does not per se result in nullification of the agency action. Instead, § 4104(g) incorporates chapter 7 of Title 5 of the Administrative Procedures Act, which provides that "due account shall be taken of the rule of prejudicial error." 5 U.S.C. § 706. Therefore, "the party who claims deficient notice bears the burden of proving that any such deficiency was prejudicial," and if that party fails to carry its burden, the agency’s decision must be upheld. Friends of Iwo Jima v. National Capital Planning Comm’n, 176 F.3d 768, 774 (4th Cir. 1999).

The Appeals Court finds that, "Despite Columbia Venture’s attempts to distinguish Friends of Iwo Jima, we find that it controls. Columbia Venture has not shown that it suffered prejudice as a result of FEMA’s defective publication.

Finally, the Appeals Court rules, "As in Friends of Iwo Jima, because its position 'was considered and simply did not prevail,' Columbia Venture was not prejudiced. . . Because FEMA’s failure to comply with § 4104(a) did not prejudice Columbia Venture, we reverse the district court’s Order of Vacatur and remand for further proceedings."

Access the complete opinion (click here).

Supreme Court: Entergy Corp. v. Riverkeeper, Inc.

Apr 1: In the U.S. Supreme Court, Case Nos. 07-588, 07-589, 07-597 [See WIMS 1/26/07 & 3/23/07, 12/3/08]. The cases involve regulation under the Clean Water Act (CWA) of the intake structures used by power plants to take in cooling water. After 30 years of regulating new facilities, the Environmental Protection Agency (EPA) promulgated a regulation requiring existing cooling water intake structures to be retrofitted to comply with EPA’s latest determination of the “best technology available for minimizing adverse environmental impact,” measured in terms of the potential effects on early life stages of fish. The Second Circuit, deferring to EPA, held that EPA has authority to retrofit existing facilities. Siding with environmental petitioners and against EPA, the court also held that EPA’s weighing of costs and benefits is limited to a narrow “cost-effectiveness” test.

The majority opinion upholds EPA's use of cost-benefit analysis and overturns the Second Circuit opinion. The majority opinion was delivered by Justice Scalia, in which Justices Roberts, Kennedy, Thomas, and Alito, joined. Justice Breyer filed an opinion concurring in part and dissenting in part. Justice Stevens filed a dissenting opinion, in which Justices Souter and Ginsburg joined.

As stated by the High Court, respondents -- environmental groups and various States -- challenged EPA's regulations, and the Second Circuit set them aside. Riverkeeper, Inc. v. EPA, 475 F. 3d 83, 99–100 (2007). The issue for our decision is whether, as the Second Circuit held, the EPA is not permitted to use cost-benefit analysis in determining the content of regulations promulgated under §1326(b). Petitioners operate -- or represent those who operate -- large power plants. In the course of generating power, those plants also generate large amounts of heat. To cool their facilities, petitioners employ "cooling water intake structures" that extract water from nearby water sources.These structures pose various threats to the environment, chief among them "the squashing against intake screens (elegantly called 'impingement') or suction into the cooling system ('entrainment') of aquatic organisms that live in the affected water sources.

The crux of the argument, framed by the High Court is, "In its Phase II rules. . . the EPA expressly declined to mandate adoption of closed-cycle cooling systems or equivalent reductions in impingement and entrainment, as it had done for new facilities subject to the Phase I rules. . . It refused to take that step in part because of the 'generally high costs' of converting existing facilities to closed-cycle operation, and because 'other technologies approach the performance of this option.'. . Thus, while closed-cycle cooling systems could reduce impingement and entrainment mortality by up to 98 percent . . (compared to the Phase II targets of 80 to 95 percent impingement reduction), the cost of rendering all Phase II facilities closed-cycle-compliant would be approximately $3.5 billion per year. . . nine times the estimated cost of compliance with the Phase II performance standards . . . Moreover, Phase II facilities compelled to convert to closed-cycle cooling systems 'would produce 2.4 percent to 4.0 percent less electricity even while burning the same amount of coal,' possibly requiring the construction of '20 additional 400–MW plants . . . to replace the generating capacity lost.'"

The Second Circuit Court of Appeals, concluded, that cost-benefit analysis, which "compares the costs and benefits of various ends, and chooses the end with the best net benefits," is impermissible under §1326(b). The Court of Appeals held the site-specific cost-benefit variance provision to be unlawful. Finding it unclear whether the EPA had relied on cost-benefit analysis in setting the national performance standards, or had only used cost-effectiveness analysis, it remanded to the agency for clarification of that point. (The remand was also based on other grounds but those are not at issue).

The case focuses on “the best technology available for minimizing adverse environmental impact,” which the Court calls the “BTA” test and says that is "the one at issue here." The majority opinion says, "In the Phase II requirements challenged here the EPA sought only to avoid extreme disparities between costs and benefits." The Court compared the annualized use-benefits of $83 million to annual costs of $389 million and said it, "demonstrates quite clearly that the agency did not select the Phase II regulatory requirements because their benefits equaled their costs." Saying further, "While not conclusive, it surely tends to show that the EPA’s current practice is a reasonable and hence legitimate exercise of its discretion to weigh benefits against costs that the agency has been proceeding in essentially this fashion for over 30 years."

In its final conclusion, the majority ruled, "We conclude that the EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. The Court of Appeals’ reliance in part on the agency’s use of cost-benefit analysis in invalidating the site-specific cost-benefit variance provision. . . was therefore in error, as was its remand of the national performance standards for clarification of whether cost-benefit analysis was impermissibly used. . . We of course express no view on the remaining bases for the Second Circuit’s remand which did not depend on the permissibility of cost-benefit analysis. . . The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion."

Access the complete opinion and dissent (click here). Access the Supreme Court docket (click here). Access questions presented and merit and amicus briefs in the case (click here, scroll to Entergy Corp. v. EPA). Access the oral argument transcript (click here). Access the 2nd Circuit opinion (click here). Access EPA's Cooling Water Intake Structure website for additional information (click here).

New Jersey DEP v. U.S. Nuclear Regulatory Commission

Mar 31: In the U.S. Court of Appeals, Third Circuit, Case No. 07-2271. As explained by the Appeals Court, the issue presented by the appeal is whether the Nuclear Regulatory Commission (NRC), when it is reviewing an application to relicense a nuclear power facility, must examine the environmental impact of a hypothetical terrorist attack on that nuclear power facility. The New Jersey Department of Environmental Protection (NJDEP) contends that the National Environmental Policy Act of 1969 (NEPA) requires the analysis of the impact of such an attack.

NJDEP petitioned for review of an NRC decision denying its request to intervene in relicensing proceedings for the Oyster Creek Nuclear Generating Station (Oyster Creek). The NRC concluded that terrorist attacks are “too far removed from the natural or expected consequences of agency action” to require an environmental impact analysis and that, in any event, it had already addressed the environmental impact of a potential terrorist act at Oyster Creek through its Generic Environmental Impact Statement [GEIS] and site-specific Supplemental Environmental Impact Statement [SEIS]. The Appeals Court agreed with the NRC and denied the petition for review.

The Third Circuit explained its decision further saying, ". . .the GEIS and SEIS together provide both generic and site-specific analyses of potential environmental impacts at Oyster Creek arising from terrorist attacks. New Jersey has never explained how or why an aircraft attack on Oyster Creek would produce impacts that are different from severe accidents and has not provided any evidence that the NRC could engage in a meaningful analysis of the risks of an attack. Instead, NJDEP argues, quoting our decision in Limerick Ecology Action v. NRC, that the NRC’s 'mere assertion of unquantifiability' does not immunize it from having to conduct a NEPA analysis. . . This is a true statement of the law, but it ignores our holding in Limerick that the burden is on the petitioner to demonstrate that the NRC could evaluate risks more meaningfully than it has already done. . . NJDEP has not met its burden here.

"Because NJDEP did not present an admissible contention before the NRC, concerning the environmental effects of a hypothetical aircraft attack on Oyster Creek, we will deny the petition for review."

Access the complete opinion (click here).