Monday, August 31, 2009

Kennedy Bldg. Assoc. v. CBS Corp.

Aug 18: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-3622. According to a court summary the district court's order finding that CBS has substantially complied with the remediation requirements imposed upon it was consistent with this court's mandate, and it did not abuse its discretion in determining that no further relief was required by the provisions of the injunction previously entered in the case. The district court was without authority under the mandate to increase the bond in the case; Kennedy's Rule 60(b)(2) motion to increase the bond was untimely.

The mandate did not preclude the district court from considering Kennedy's claim for response costs and as the court cannot determine whether the district court denied the motion on the merits or because it believed the request was outside the scope of the mandate, and the matter was remanded for further proceedings. In its final ruling the Appeals Court said, ". . .we affirm the order of the district court modifying the MERA [Minnesota Environmental Rights Act] injunction and denying Kennedy’s motion to increase the bond. We remand this case for clarification of the district court’s order denying Kennedy’s request for response costs." The Appeals Court said, ". . .we direct that the district court make the appropriate findings: (1) Which, if any, of Kennedy’s claimed response costs are compensable; and (2) The amount of money damages, if any, to which Kennedy is entitled."

Access the complete opinion (
click here).

United States v. Northshore Mining Co.

Aug 17: In the U.S. Court of Appeals, Eighth Circuit, Case No. 08-1423, 08-1529, & 08-1533. According to a court written summary, Northshore received all of the relief it sought in its motion to dissolve the injunction in the case, and it lacked standing to appeal the order; nor did Northshore have standing to appeal the district court's collateral ruling denying its Rule 60(b) motion as the court's ruling on that motion was immaterial to the ultimate ruling vacating the injunction; the United States' appeal must also be dismissed because it was not aggrieved by the district court's order since its interest did not extend to air-emissions programs and the order involved only affects air emissions.

With respect to the remaining appeal by Minnesota and the Minnesota Pollution Control Agency, those parties have failed to show that the district court abused its discretion by vacating sua sponte [acting spontaneously without prompting from another party] the injunction's air-emissions programs as the State and the agency have sufficient regulatory tools to monitor and control the plant's fibre emissions in ways which parallel the injunction. In its conclusion, the Appeals Court said, ". . .we dismiss Northshore’s appeal, dismiss the United States’ cross-appeal, and affirm the district court’s conclusion that the air-emissions provisions of the injunction are moot."

Access the complete opinion (
click here).

Friday, August 14, 2009

Sierra Forest Legacy v. Rey

Aug 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16892. This complicated appeal and decision concerns three United States Forest Service (USFS) projects -- Empire, Slapjack and Basin -- that attempt to fund fire prevention activities in the Plumas National Forest in California by awarding logging contracts to private parties. The Appeals Court said, "We must decide whether the district court abused its discretion by denying plaintiffs’ request to preliminarily enjoin the three projects."

USFS developed Empire, Slapjack and Basin under the “2004 Framework,” an amendment to the forest plans governing California’s Sierra Nevada region, including Plumas. Among other claims, plaintiffs allege that USFS violated the National Environmental Policy Act (NEPA), by failing to consider a reasonable range of alternatives before adopting the 2004 Framework.

The 2004 Framework replaced the “2001 Framework” as the operative land and resource management plan for the 11 national forests in the Sierra Nevada region. Whereas the 2001 Framework allowed logging of trees only up to 12-20 inches in diameter, depending on the characteristics of the land in question, the 2004 Framework allows the logging of trees up to 30 inches in diameter. The preliminary injunction plaintiffs seek would allow the Empire, Slapjack and Basin projects to proceed only to the extent they are consistent with the 2001 Framework.

In a previously filed opinion in this case, the Ninth Circuit held for plaintiffs, in part because we agreed that USFS failed to consider a reasonable range of alternatives to the 2004 Framework as required by NEPA. See Sierra Forest Legacy v. Rey, 526 F.3d 1228, 1231-32 (9th Cir. 2008) [
See WIMS 5/14/09]. Plaintiffs were therefore likely to succeed on the merits. Under the legal standard then in effect, we held that the district court abused its discretion by not issuing plaintiffs’ requested preliminary injunction.

Defendants filed a petition for rehearing and petitions for rehearing en banc. The Appeals Court rules, "With this opinion, which supersedes our previously filed opinion, we grant the pending petition for rehearing and deny the pending petitions for rehearing en banc as moot. We will entertain new petitions for rehearing and petitions for rehearing en banc.

"We continue to hold that plaintiffs are likely to succeed on the merits of their NEPA claim. However, the Supreme Court’s intervening decision in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008) [See WIMS 11/12/09], requires us to revisit our holding with respect to the factors governing preliminary relief other than likelihood of success on the merits -- irreparable harm, balancing of equities and the public interest. In light of Winter, we now hold that the district court erred because it did not assess these non-merits factors in the context of the narrow injunction plaintiffs requested -- to halt the three site-specific projects only to the extent they are inconsistent with the 2001 Framework. We have jurisdiction under 28 U.S.C. § 1292(a), and we reverse and remand so the district court can weigh the non-merits factors under the Winter standard, with reference to the narrow relief plaintiffs requested. . ."

Access the complete opinion (
click here).

Steven Pollack v. DOJ

Aug 13: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-3857. The case involves a gun range that the United States government operates on the shores of Lake Michigan. The plaintiffs brought suit against several governmental agencies, alleging that the discharge of bullets into the lake violates various environmental laws. The district court dismissed the suit for want of jurisdiction after concluding the plaintiffs lacked constitutional standing. The Appeals Court affirmed the district court decision.

Plaintiff, Steven Pollack is an attorney who lives in Highland Park, Illinois, thirteen miles south of the range. He is the executive director of plaintiff Blue Eco Legal Council (Blue Eco), an environmental group “with an interest in the environmental safety of the Great Lakes watershed,” that, among other things, sues private and governmental polluters to enforce environmental laws.

To establish standing, the plaintiffs relied on affidavits submitted by Pollack and another Blue Eco member, Darren Miller, who is also a resident of Highland Park. Pollack’s affidavit stated that he enjoyed watching birds in the Great Lakes watershed, visited public parks along the Lake Michigan shoreline, drank water from Lake Michigan at his home in Highland Park, and ate freshwater and ocean fish. Miller’s affidavit was nearly identical to Pollack’s.

The district court dismissed the suit for lack of subject matter jurisdiction saying that plaintiffs concern over drinking water did not provide standing because the drinking water in Highland Park was below the environmental limit on lead pollution allowed by the city government, thereby negating any claim of harm. Additionally, the district court held that expressed concerns over birds, fish, and wildlife were "too general and did not allege any particular or specific harm" that had been caused by the bullets at the gun range.

The Appeals Court concluded, "Because neither Pollack nor Miller has demonstrated that they were concretely affected by the shooting activities they challenge, neither individual has standing to pursue this case. Accordingly, neither Pollack nor Blue Eco has standing. The district court’s dismissal of this suit for lack of subject-matter jurisdiction is affirmed."

In a separate concurring opinion, one Judge wrote, "This is without question a close case. As the case law laid out by the majority suggests, 'injury in fact' can be an elusive phenomenon. Although in the present case an injury is arguably traceable to the deposit of toxic substances in potable water, such phenomena appear and disappear from one case to the next depending on subtle twists in the allegations, turning between the real and the hypothetical."

Access the complete opinion (
click here).

Thursday, August 13, 2009

Mirant Potomac River, LLC v. EPA

Aug 12: In the U.S. Court of Appeals, Fourth Circuit, Case No. 08-1277. The Appeals Court explained that Mirant Potomac River, LLC (Mirant) appealed the U.S. EPA approval of Virginia’s Clean Air Interstate Rule State Implementation Plan (CAIR SIP). The Court said Mirant’s alleged injury, however, "flows from Virginia’s Nonattainment Provisions, which are separate emissions standards adopted by Virginia’s Air Pollution Control Board (Virginia Board) under the authority of the Virginia legislature. Because Mirant’s injury cannot fairly be traced to EPA’s approval of Virginia’s CAIR SIP, we dismiss for lack of standing."

The Appeals Court also noted in a footnote, "Since we find no subject matter jurisdiction, we need not evaluate a recent decision by Virginia’s Court of Appeals that invalidated a portion of the Nonattainment Provisions. . . Mirant Potomac River, LLC v. Commonwealth of Virginia, State Air Pollution Control Board, 2009 WL 1748524 (Va. Ct. App. June 23, 2009) (unpublished)."

In summary the Appeals Court ruled, ". . .there is no connection -- much less one that is 'fairly traceable' -- between Mirant’s claimed injury and EPA’s approval of Virginia’s CAIR SIP because Virginia’s Nonattainment Provisions and its CAIR SIP are separate regulatory schemes. Virginia’s Nonattainment Provisions are state regulations. They are not part of, and do not directly interfere with, the CAIR SIP approved by EPA. Consequently, Mirant has failed to demonstrate a causal link between its alleged injury and EPA’s approval of Virginia’s CAIR SIP. Mirant has failed to carry its burden of establishing standing."

Access the complete opinion (
click here).

Thursday, August 6, 2009

People of the State of CA v. USDA (Roadless Rule)

Aug 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-15613 & 07-15695. As explained by the Appeals Court, this case involves procedural challenges to a United States Forest Service Rule known as the "State Petitions Rule." The plaintiffs, several states and various environmentalist organizations, contend that the State Petitions Rule was promulgated without proper process and that it is invalid. They urge us to affirm the district court, which set aside the State Petitions Rule and reinstated the Roadless Area Conservation Rule, more commonly known as the “Roadless Rule,” pending Forest Service compliance with the National Environmental Policy Act and the Endangered Species Act.

The Appeals Court said, "We agree with the plaintiffs that the promulgation of the State Petitions Rule effected a repeal of the Roadless Rule, which we previously found to afford greater protections to the nation’s roadless areas than those the individual forest plans provide. The Forest Service’s use of a categorical exemption to repeal the nationwide protections of the Roadless Rule and to invite States to pursue varying rules for roadless area management was unreasonable. It was likewise unreasonable for the Forest Service to assert that the environment, listed species, and their critical habitats would be unaffected by this regulatory change. We affirm the district court’s order permanently enjoining the implementation of the State Petitions Rule because the Forest Service violated the National Environmental Policy Act and the Endangered Species Act when it promulgated the State Petitions Rule. We further conclude that the district court did not abuse its discretion in ordering the Forest Service to comply with the Roadless Rule as a remedy for these procedural shortcomings."

In it decision, the Ninth Circuit provides an overview of the factual background and procedural history of this lengthy litigation. Additionally, the Court also resolve disputes about the ripeness of the plaintiffs’ claims and the appropriate standard of review to apply to them.

Earthjustice, a party in the case issued a statement saying, "The Ninth Circuit Court of Appeals today affirmed protection for over 40 million acres of wild national forests and grasslands from new road building, logging, and development. The decision puts an end to the Bush administration's efforts to open these last great natural areas to development. Today's ruling protects the majority of national forest roadless areas in the country. . . Today's ruling not only affirms and reinstates the most popular environmental rule of all time, it frees the Obama administration to pursue President Obama's pledge to 'support and defend' the 2001 Rule -- including appealing an adverse ruling from a Wyoming federal court, ending the roadless protection exemption for the Tongass National Forest, and refraining from enacting specific state legislation, like that proposed in Colorado."

Earthjustice attorney Kristen Boyles said, "We're not out of the woods yet. This decision halts the Bush administration assault on roadless areas, but the Obama administration should now take the next steps necessary to make protection permanent." On May 28, 2009, Secretary of Agriculture Tom Vilsack announced the signing of an interim directive regarding inventoried roadless areas within the National Forests and Grasslands. At the time Vilsack said, "This interim directive will provide consistency and clarity that will help protect our national forests until a long-term roadless policy reflecting President Obama's commitment is developed." The directive provided decision-making authority to the Secretary over proposed forest management or road construction projects in inventoried roadless areas [
See WIMS 5/29/09].

USDA indicated at the time, "In simultaneously upholding and overturning the 2001 Clinton roadless rule, the courts have created confusion and made it difficult for the U.S. Forest Service to do its job. The directive will ensure that USDA can carefully consider activities in these inventoried roadless areas while long term roadless policy is developed and relevant court cases move forward."

Access the complete opinion (click here). Access the release from Earthjustice (click here). Access the 1-page USDA Interim Directive (click here). Access the USDA Roadless Area Conservation website for more information (click here). Access the Heritage Forests Campaign website for extensive information and background on roadless areas (click here).

Monday, August 3, 2009

Simsbury-Avon Pres. Society v. Metacon Gun Club, Inc.

Jul 31: In the U.S. Court of Appeals, Second Circuit, Case No. 07-0795. Plaintiffs-Appellants (Simsbury-Avon) brought suit against Defendants-Appellees Metacon Gun Club, Inc., and its members and guests (collectively referred to as Metacon) for violations of the Resource Conservation and Recovery Act (RCRA, and the Clean Water Act (CWA), resulting from the discharge and accumulation of lead shot on Metacon’s property. Plaintiffs-Appellants now appeal from several decisions of the United States District Court for the District of Connecticut, dismissing their claims.

The Appeals Court said, "We defer to the EPA’s interpretation of the applicable RCRA permit regulations, and hold that they do not apply to the regular, intended use of lead shot on a shooting range. Therefore, we conclude that the district court properly dismissed Plaintiffs-Appellants’ claim based on the alleged disposal of hazardous waste without a RCRA permit, in violation of 42 U.S.C. § 6925(a). We also hold that the Plaintiffs-Appellants have failed to adduce sufficient evidence to create a material issue of fact regarding whether lead contamination on the shooting range constitutes 'an imminent and substantial endangerment to health or the environment.' 42 U.S.C. § 6972(a)(1)(B). Thus, we affirm the district court’s grant of summary judgment to Metacon on Plaintiffs-Appellants’ RCRA 'imminent and substantial endangerment' claim. Finally, we hold that the Plaintiffs-Appellants failed to set forth sufficient evidence to create a material issue of fact as to whether the gun club is discharging lead shot into 'navigable waters' from a 'point source.' 33 U.S.C. § 1362(12). Accordingly, we affirm the district court’s grant of summary judgment to Metacon on Plaintiffs-Appellants’ CWA permit claim."

Access the complete opinion (
click here).