Tuesday, July 28, 2009

Public Citizen v. Nuclear Regulatory Commission

Jun 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-71868 & 07-72555. Petitioners Public Citizen, Inc., San Luis Obispo Mothers For Peace, the State of New York, and amicus State of California (Petitioners) challenge the Nuclear Regulatory Commission’s (NRC or Commission) modification of the Design Basis Threat (DBT) rule and partial denial of the Committee to Bridge the Gap’s (CBG) petition for rulemaking. Petitioners claim the Commission acted arbitrarily and capriciously and contrary to law by refusing to include the threat of air attacks in the final revised DBT rule. Petitioners also claim NRC violated the National Environmental Policy Act (NEPA) by not considering the risk of an airborne terrorist attack in its Environmental Assessment (EA), and that this risk creates a potentially significant impact on the environment necessitating a full Environmental Impact Statement (EIS). In a split, 2-1 decision, the Appeals Court denied the petition.

In denying the petition, the majority said in part, "Because the Commission acted within its discretion in concluding that air-based threats were beyond the scope of the DBT rule, however, it was unnecessary for the Commission to consider that decision as an alternative course within the scope of the rule. The Commission’s determination that air-based threats were outside the scope of the DBT rule distinguishes this case from a case like Center for Biological Diversity [538 F.3d at 1215], where we held an agency must consider a broad range of alternative actions within the scope of the rule at issue, beyond those alternatives the agency seriously considered. We decline to extend that holding to create a rule that ignores reasonable boundaries in the scope of an EA alternative action analysis. The Commission did not merely select among a range of options, but instead determined air-based threats were not properly addressed by the DBT rule. As noted above, this decision was within the Commission’s discretion and it need not include an analysis of airbased threats within the EA alternative action section."

The dissenting opinion states in conclusion, "Although we owe the NRC considerable deference, the NRC owes the public a rational and reasonable explanation why it would exclude from its rule consideration of terrorist air attacks on nuclear facilities. In the face of near-uniform scientific studies warning of serious risk, bare assurances by the NRC that we are safe do not satisfy this minimal agency burden."

Access the complete opinion (
click here).

WildEarth Guardians v. US Forest Service

Jul 24: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-1089. The appellant, Mountain Coal Company (MCC), owns and operates the West Elk Mine, a large underground coal mine lying beneath the Grand Mesa, Uncompahgre, and Gunnison National Forests in Colorado. After the United States Forest Service approved plans for venting methane gas from the mine, WildEarth Guardians brought suit against the Forest Service, the Department of Interior, and several of their officials under the Administrative Procedure Act, contending that the approval violated the National Environmental Policy Act (NEPA). MCC moved to intervene under Federal Rule of Civil Procedure 24.

The district court denied the motion and MCC appealed. Because “[a]n order denying intervention is final and subject to immediate review if it prevents the applicant from becoming a party to an action,” Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Dep’t of the Interior, 100 F.3d 837, 839 (10th Cir. 1996) (Coalition). The Appeals Court concluded that MCC is entitled to intervene as of right, and accordingly reversed the district court’s decision and remanded the case with instructions to grant MCC’s motion to intervene.

The Appeals Court ruled, "We are convinced that MCC has established a possibility of inadequate representation. . . the government has multiple objectives and could well decide to embrace some of the environmental goals of WildEarth. Therefore, MCC should not be required to rely on the defendants to represent its interests."

Access the complete opinion (
click here).

Wednesday, July 22, 2009

River Runners For Wilderness v. Martin

Jul 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-15112. The National Park Service entered a decision adopting a 2006 Colorado River Management Plan that the Plaintiff-Appellants contend is unlawful. Plaintiffs sought to have that decision set aside by the district court as arbitrary and capricious under the Administrative Procedure Act. The district court granted summary judgment to all defendants (i.e. Superintendent of Grand Canyon National Park, National Park Service, Department of Interior, et al).

The Appeals Court said, "The district court wrote an extensive and well-reasoned order, which is attached as an appendix. We agree with the order and adopt it as the opinion of our court." In its decision the district court explained that the case concerns the National Parks Service’s decision to permit the continued use of motorized rafts and support equipment in Grand Canyon National Park. Plaintiffs contended that such motorized activities impair the wilderness character of the Canyon and that the Park Service’s decision violates its management policies and various federal statutes. The district court ruled that for reasons which it explains in its order that, "Plaintiffs have not satisfied the high threshold required to set aside federal agency actions under the APA."

Access the complete opinion (
click here).

Tuesday, July 21, 2009

California Trout v. FERC

Jul 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-73664, 07-74494 & 08-71593. According to the Ninth Circuit, the Supreme Court has long stressed that “the formulation of procedures [is] basically to be left within the discretion of the agencies to which Congress [has] confided the responsibility for substantive judgments.” [Citing: Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524-25 (1978)].

The Appeals Court said, "Agencies must have the ability to manage their own dockets and set reasonable limitations on the processes by which interested persons can support or contest proposed actions. In this respect, an agency’s procedural rules operate much as our own rules of procedure do: we require litigants to observe the orderly procedures of the court, even if such rules occasionally bar inattentive or ill-advised parties from our courtrooms. So long as an agency’s procedural rules do not afford petitioners less protection than the minimum mandated by the Administrative Procedure Act (APA) and the Constitution, we are not free to 'improperly intrude[ ] into the agency’s decision-making process' and second-guess its administrative tradeoffs. Id. at 525.

In the instant case, petitioners California Trout (CalTrout) and Friends of the River (FOR) contend that the Federal Energy Regulatory Commission (FERC, the Commission) applied its rule governing intervention in a license renewal proceeding in an arbitrary and capricious fashion. The Appeals Court, in a split decision said, "Although petitioners have set forth evidence that their late intervention would not prejudice the Commission’s proceeding, under the circumstances we cannot find that the Commission’s decision was an abuse of its discretion. The regulation at issue explicitly confers on the Commission a broad power to differentiate among untimely interveners and permits the Commission to summarily reject a prospective intervener who cannot demonstrate 'good cause' for its untimely motion. Because we find that the Commission reasonably determined that petitioners lacked good cause for their untimely attempt to intervene, we deny the petition for review."

In its final argument, the majority ruled, "Finally, we observe that the Commission’s procedural rules are no less important -- and, therefore, no less deserving of respect -- than our own code of procedure. Such rules provide for orderly decision-making and constitute advance notice of the process by which our institutions will conduct themselves. The petitioners knew the rules of the game and assumed the risks of their decision not to intervene. The Commission had no obligation, by statute or by rule, to provide relief for petitioners’ failure to intervene in a timely fashion."

The dissenting Justice said, "I respectfully dissent and would grant the petition because the Commission has erected an unreasonably high barrier to good cause for late intervention, and without explanation or justification has departed from its own precedent of routinely granting late intervention where there is no risk of prejudice. In denying Petitioners’ motions for late intervention, the Federal Energy Regulatory Commission (the Commission) has arbitrarily imposed a good cause requirement far more stringent than indicated by analogous precedent and at odds with the liberal standard it has applied consistently in similar cases. Moreover, it should not go unnoticed that in denying leave to intervene, the Commission has silenced any party wishing to advance Petitioners’ environmental concerns."

Access the complete opinion and dissent (
click here).

Friday, July 17, 2009

St. John's Organic Farm v. Gem County Mosquito Abatement

Jul 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35797. Plaintiffs Saint John’s Organic Farm and Peter Dill (collectively, Dill) filed suit under the citizen-suit provisions of the Clean Water Act (CWA) against the Gem County Mosquito Abatement District and Gem County (collectively, GCMAD). Dill alleged that GCMAD’s discharges of pesticides directly into the waters of the United States without a National Pollutant Discharge Elimination System (NPDES) permit violated the CWA. Dill and GCMAD settled the suit.

The Settlement Agreement (Agreement) limited GCMAD’s pesticide spraying in several ways and provided that an application for “costs of litigation (including reasonable attorney and expert witness fees)” under 33 U.S.C. § 1365(d) could be made to the district court. The district court denied Dill’s attorney’s fees application, holding under § 1365(d) that Dill was not a “prevailing or substantially prevailing party” and, in the alternative, that it was not “appropriate” to grant fees to Dill.

The Appeals Court reversed the district court decision holding "that Dill was a prevailing party under § 1365(d)." The case was remanded to the district court to consider whether fees are appropriate under the standard articulated in this opinion. In a separate concurring opinion one of the Justices explains, "we employ 'a two-pronged test to determine whether special circumstances exist to justify denying attorney’s fees.' . . .This test requires a showing whether (1) 'awarding the attorney’s fees would further the purposes' of the statute, and (2) 'the balance of equities favors or disfavors the denial of fees.'"

The Justice said further, ". . .the policy implications of today’s holding concern me. Courts should not be interpreting attorney’s fee requirements in such a way as to discourage settlement. If today’s holding is read too literally, I believe there is a disincentive for parties in environmental litigation to negotiate a settlement."

Access the complete opinion (click here).

Monday, July 13, 2009

Natural Resources Defense Council v. U.S. EPA

Jul 10: In the U.S. Court of Appeals, D.C. Circuit, Case No. 06-1045, consolidated with 06-1046, 06-1047, 06-1214, 07-1311. As explained by the Appeals Court, in 1997, the EPA revised the National Ambient Air Quality Standard (NAAQS) for ozone from a 1-hour standard to an 8-hour standard. These consolidated petitions for review challenge aspects of the Final Rule To Implement the 8-Hour Ozone NAAQS -- Phase 2, 70 Fed. Reg. 71,612 (2005) (Phase 2 Rule), and Phase 2 of the Final Rule To Implement the 8-Hour Ozone NAAQS -- Notice of Reconsideration, 72 Fed. Reg. 31,727 (2007) (Reconsideration Notice).

The Appeals Court ruled, "We hold the Phase 2 Rule is inconsistent with the Clean Air Act (CAA or Act) in allowing participation in a regional cap-and-trade program to satisfy an area-specific statutory mandate. We further hold the EPA arbitrarily
eliminated one safeguard and violated the anti-backsliding provision of the Act insofar as it eliminated another from its regulations governing review of new sources of pollution. We therefore grant the petitions with respect to those aspects of the Phase 2 Rule.

"In view of our decision in North Carolina v. EPA, 531 F.3d 896 (2008) [
See WIMS 7/14/08, & 1/5/09], in which we granted a petition for review of the Clean Air Interstate Rule (CAIR), we defer consideration of the Phase 2 Rule and Reconsideration Notice insofar as they relate to the CAIR program. We deny the petitions in all other respects."

Earthjustice filed the suit, representing the Natural Resources Defense Council (NRDC). The states of New Jersey, New York and Connecticut also joined in part of the challenge. In a release, NRDC said, "The U.S. Court of Appeals for the D.C. Circuit found the Environmental Protection Agency rules illegally let plants buy rights to pollute -- sometimes from plants hundreds of miles away -- instead of installing modern emission controls. The court also invalidated parts of the rule that weakened pollution limits for major new or expanded factories and power plants in cities with unhealthful air."

David Baron, Earthjustice attorney said, “Rejecting these waivers is a breath of fresh air to millions of Americans living in cities that violate clean air standards. The EPA rule let power plants pump uncontrolled air pollution into regions that already had dangerous smog levels. We said that violated the law, and the court agreed.”

NRDC indicated that the case grew out of an air pollution trading program aimed at reducing pollution that travels between states. The EPA rule overturned created loopholes by allowing power plants in already polluted communities to avoid installing controls by buying pollution credits from another plant that could be hundreds of miles away. Earthjustice argued that the waiver violated the Clean Air Act. Twenty-two states are members of this interstate program, and most of them contain areas that are already very polluted, officially known as “non-attainment areas.” These include cities like Chicago, Pittsburgh, Baltimore, New York and Philadelphia.

Access the complete opinion (
click here). Access a release from NRDC (click here).

Greater Yellowstone Coalition v. Kimball

Jul 10: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-8083. Petitioners-Appellants Greater Yellowstone Coalition, Jackson Hole Conservation Alliance, and Wyoming Outdoor Council (collectively GYC) sent a letter to the United States Forest Service (Forest Service”) and the United States Bureau of Land Management (BLM) requesting the agencies to undertake environmental analyses of Wyoming elk feedgrounds located on Federal land. In the letter, GYC alleged the environmental analyses were required pursuant to the National Environmental Policy Act (NEPA).

Unsatisfied with the agencies’ response to its letter, GYC filed a Petition for Review of Agency Action in the United States District Court for the District of Wyoming. GYC alleged the Forest Service and BLM violated NEPA and various Federal permitting regulations in connection with the feedgrounds’ authorizations. In addition to seeking review of the agencies’ actions, GYC requested injunctive relief requiring the Forest Service and BLM to undertake environmental analyses of the feedgrounds. The district court denied the requested relief and entered judgment in favor of Respondents. GYC then appealed the decision and the Appeals Court vacated the portions of the district court order that have become moot and affirmed the other portions.

The Appeals Court ruled further, "GYC’s claims as to the six feedgrounds included in the July 2008 environmental analysis are moot. We therefore vacate the portions of the district court opinion addressing those feedgrounds." Additionally, ". . .we conclude BLM’s actions with regard to the four Wyoming feedgrounds in question were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and affirm the district court’s denial of GYC’s request to compel BLM to undertake environmental analyses of these feedgrounds."

Access the complete opinion (
click here).

Friday, July 10, 2009

United States v. Gary Bailey

Jul 9: In the U.S. Court of Appeals, Eighth Circuit, Case No. 08-1908. According to the Appeals Court, Gary Bailey constructed a road on a parcel of wetlands in Lake of the Woods County (County), Minnesota, without obtaining a permit under Section 404 of the Clean Water Act (Act). The United States Army Corps of Engineers (Corps) ordered Bailey to restore the land to its previolation condition. Bailey refused, and the United States brought an action under Section 309(b) of the Act to enforce the restoration order and to enjoin Bailey from discharging further pollutants into the wetland.

Bailey counterclaimed against the United States, alleging that the Corps did not have jurisdiction over his parcel of land and that its restoration order was arbitrary and capricious. Bailey sued the County in a third-party complaint, alleging that the County should pay to restore the land. All parties moved for summary judgment.

In what the Appeals Court called "a most comprehensive, thorough opinion (from which we have borrowed extensively)," the district court granted in part the United States’s motion for summary judgment, finding that the Corps properly asserted jurisdiction under the Act and that its restoration order met the requirements of United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976). United States v. Bailey, 516 F. Supp. 2d 998 (D.Minn. 2007). The district court dismissed Bailey’s counterclaim against the United States and his third-party complaint against the County. The district court subsequently issued a final injunction, ordering Bailey to restore the wetland at his own expense to its previolation condition. United States v. Bailey, 556 F. Supp. 2d 977 (D. Minn. 2008).

Bailey appeals, contending that the district court erred in concluding that the Corps has jurisdiction over his property, in granting summary judgment in favor of the United States, and in entering an injunction to enforce the restoration order. He
also argues that the restoration order is arbitrary and capricious. The Appeals Court affirmed the district court opinion.

According to the Appeals Court summary, "The wetlands in question met the substantial nexus test announced in Justice Kennedy's concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006) because they were adjacent to the Lake of the Woods in Minnesota, and the district court did not err in finding it had jurisdiction to hear the United States' complaint under Section 309(b) of the Clean Water Act; the district court did not err in admitting the Corps' expert evidence establishing the existence of wetlands as the evidence was reliable and satisfied the Daubert test; the district court's order requiring Bailey to restore the wetlands in question was not arbitrary or capricious; restoration order was not a violation of Bailey's equal protections rights under the Fourteenth Amendment.

Access the complete opinion (
click here).

Thursday, July 9, 2009

Oregon Natural Desert Association v. Locke

Jul 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35851. The Department of Commerce, National Oceanic and Atmospheric Administration Fisheries (NOAA Fisheries) and National Marine Fisheries Services (collectively, Commerce) appeal the district court’s order granting attorney fees and costs under the Freedom of Information Act (FOIA), in favor of Oregon Natural Desert Association (ONDA). The district court issued the attorney fees order after it entered judgment in ONDA’s action alleging unlawful withholding of requested documents and use of unlawful processing regulations in violation of the FOIA and the Administrative Procedure Act (APA).

The Appeals Court affirmed in part, reverse in part, and remand for recalculation of the attorney fee award. The Appeals Court said, "On two of its claims, ONDA was not a substantially prevailing party under Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t. of Health & Human Res., 532 U.S. 598 (2001). As to those claims, the defendants provided the documents ONDA requested before the district court ordered that they be turned over. ONDA was successful in obtaining the documents, but it succeeded by use of the catalyst theory of recovery, and not by either a judgment on the merits or a court-ordered consent decree as required by Buckhannon. Id. at 604."

The Appeals Court said further, "The Openness Promotes Effectiveness in our National Government Act (the '2007 Amendments' to the FOIA) authorizes the payment of attorney fees when documents such as those sought by ONDA are recovered using a catalyst theory, but those Amendments were signed into law after the district court entered its attorney fees order, and they do not apply retroactively to this case. ONDA is not eligible for the recovery of attorney fees on its first two claims. Nor is it eligible for attorney fees on its third claim, which it lost. But, it is eligible for an award of attorney fees on its fourth claim for its successful challenge to the cut-off regulation."

Access the complete opinion (
click here).

Wednesday, July 8, 2009

Catawba County NC v. U.S. EPA

Jul 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 05-1064. The case is consolidate with 29 other cases. In these consolidated petitions, several states, counties, and industrial entities challenge the U.S. EPA's promulgation of area designations for the annual national ambient air quality standard (NAAQS) applicable to fine particulate matter (PM2.5), a category of air pollutants consisting of miniscule airborne particles known to present adverse health risks. The parties argue that EPA’s methodology for designating areas as “nonattainment” for the fine particulate matter standard violates section 107(d) of the Clean Air Act, which governs the designations, and that the methodology and the individual designations it produced are arbitrary and capricious.

According to the Appeals Court the petitioners what it "to vacate the nonattainment designations and to send EPA back to the drawing board." The Appeals Court ruled, "With one minor exception, we deny the petitions for review. Faced with the complex task of identifying those geographic areas that contribute to fine particulate matter pollution, EPA both complied with the statute and, for all but one of the 225 counties or partial counties it designated as nonattainment, satisfied -- indeed, quite often surpassed -- its basic obligation of reasoned decisionmaking. . . we deny the petitions for review in all respects save one: the designation of Rockland County [New York] is remanded to EPA."

Access the complete opinion (click here).

Tuesday, July 7, 2009

Scott Howard v. Hilda Solis

Jul 6: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-5799. In this case Petitioner Scott Howard, a miner, sought a writ of mandamus from the court directing the Secretary of Labor to promulgate lower limits for the amount of dust and silica in the air in mines. The Federal Mine Safety and Health Act of 1977 authorizes the Secretary to promulgate mandatory air quality standards for U.S. mines. The Secretary has not promulgated new standards for dust and silica since 1980. Howard argued that the present standards are too high and that the Secretary had, therefore, violated her duty under the Mine Act to promulgate “improved” standards to protect the health of miners.

The Appeals Court said, "Because Howard must first exhaust his administrative remedies as required by the Mine Act, however, his petition must be dismissed." In its opinion, the Appeals Court said further, "If Howard petitions for a lower PEL [permissible exposure limits], the Secretary assures us, the agency would make a considered determination, capable of judicial review, as to whether to promulgate a lower PEL. This would have the benefit of creating a record that would facilitate judicial review. '[E]ven where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context.'"

Access the complete opinion (
click here).

Thursday, July 2, 2009

Alaska Wilderness v. Kempthorne, Et. Al.

Jun 30: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 07-71989 and 07-72183. Petitioners in this case challenge the Minerals Management Service’s (MMS) approval of Respondent-Intervenor Shell Offshore Inc.’s (Shell) 2007-2009 Beaufort Sea Plan of Exploration (EP). On May 5, 2009, however, Shell withdrew its EP, and the MMS subsequently rescinded its prior approval of that EP. The MMS characterized the EP as “null and void” and declared that it “will not consider nor approve any exploratory drilling activity under this EP.”

The Appeals Court said, "The MMS’s rescission of its approval of the EP, which was the agency action at issue in this appeal, renders Petitioners’ challenge moot. Accordingly, Shell’s unopposed 'Motion to Dismiss Appeal as Moot' is granted. This appeal is dismissed as moot. The parties shall bear their own costs on appeal. A certified copy of this order shall serve as the mandate of this court."

Access the court order (click here).

Geerston Seed Farms v. Monsanto Co.

Jun 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16458, 07-16492, & 07-16725. This ruling affirms a major ruling under the National Environmental Policy Act (NEPA) involving many Plaintiff and Defendant Appellees and Intervenors on both sides involving the controversial practice of genetically modified crops, in this case specifically herbicide resistant alfalfa manufactured by Monsanto. The original decision was issued on September 2, 2008 [See WIMS 9/4/08]. In the latest action, the Ninth Circuit, has voted to deny the petition for panel rehearing and recommend denial of the petition for rehearing en banc. The full court was advised of the petition for rehearing en banc and no Judge has requested a vote on whether to rehear the matter en banc. The Appeals Court ruled, "The petition for panel rehearing and rehearing en banc is denied. No further petitions for rehearing will be accepted."

The ruling affirms an injunction entered by the district court in May 2007, enjoining future planting of Monsanto alfalfa, called “Roundup Ready alfalfa,” pending the preparation by the United States Department of Agriculture, Animal and Plant Health Inspection Service (APHIS), of an environmental impact statement (EIS). The injunction was sought by plaintiffs Geertson Seed Farms and Trask Family Seeds, conventional alfalfa-seed farms, together with environmental groups, because they fear cross-pollination of the new variety with other alfalfa, thereby possibly causing conventional alfalfa to disappear.

Andrew Kimbrell, executive director of the Center for Food Safety, lead plaintiff and counsel in the lawsuit said, “This ruling affirms a major victory for consumers, ranchers, organic farmers, and most conventional farmers across the country. Roundup Ready Alfalfa represents a very real threat to farmers’ livelihoods and the environment; the judge rightly dismissed Monsanto’s claims that their bottom line should come before the rights of the public and America’s farmers. This ruling is a turning point in the regulation of biotech crops in this country.”

Access the latest ruling (
click here). Access the 9/2/08 ruling (click here). Access a release from Beyond Pesticides (click here).