Monday, November 30, 2009

Ackerson v. Bean Dredging LLC

Nov 25: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-30272. In this multi-party case known as the Katrina Canal Breaches Litigation, appellants sued the United States and thirty-two defendants who dredged the Mississippi River Gulf Outlet to recover damages sustained during Hurricane Katrina. The district court dismissed the claims against the dredgers because it determined that the defendants acted pursuant to contracts with the United States government under authority granted by an act of Congress. The appellants argue that the district court improperly: (1) dismissed their claims; (2) refused to allow them to amend their complaint; (3) refused to allow them to conduct discovery; and (4) entered judgment in favor of those defendants whose actions had been stayed after they filed petitions under the Limitation of Liability Act.The Appeals Court affirmed the district court decision.

While admitting that the district court did commit a procedural error, the Appeals Court ruled, "A district court’s failure to comply with formal procedural requirements is a ground for reversing a judgment when “the failure substantially prejudiced one of the parties.” Here, the limitation actions and the merits actions were before the same district court. Because the district court could cure the procedural defect merely by entering a stay in the limitation actions and then entering judgment for the Limitation Defendants in the merits action, the Plaintiffs would be in the same position if the district court followed the proper procedure. The Plaintiffs have not identified any substantial prejudice arising out of the district court’s procedural error. Thus, we affirm the entry of judgment in favor of the Limitation Defendants.

"Because we hold that the Contractor Defendants are entitled to government-contractor immunity under Yearsley and that the Plaintiffs’ other claims are without merit or are harmless error, we affirm the district court’s dismissal and deny the motion to dismiss the appeal as moot."

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Wednesday, November 25, 2009

State of North Carolina v. EPA

Nov 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1225. The State of North Carolina petitions for review of the final rule of U.S. EPA removing the northern part of the State of Georgia from EPA’s regulations under its national ambient air quality standard (NAAQS) for ozone measured during a one-hour period [See 73 FR 21,528, 4/22/08]. In 1998 EPA called upon several states to revise their state implementation plans (SIPs) for attaining the NAAQS for ozone by reducing emissions of oxides of nitrogen (NOx), a precursor of ozone [63 FR 57,356, 10/27/98, NOx SIP Call].

Following the remand in Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), cert. denied, 532 U.S. 904 (2001), EPA promulgated a rule that included only the northern portion of Georgia in the NOx SIP Call under the one-hour ozone standard [69 FR 21,604, 4/21/04, Remand Rule]. Georgia’s inclusion was based on EPA’s findings in the NOx SIP Call that emissions from Georgia were significantly contributing to non-attainment of the one-hour ozone NAAQS in Birmingham, Alabama and Memphis, Tennessee.

Upon the petition of an industry coalition, an intervenor, EPA reconsidered its inclusion of Georgia in light of its determinations that recently Birmingham, and earlier Memphis, had attained the one-hour ozone standard. North Carolina now challenges the Withdrawal Rule as contrary to EPA policy requiring states’ adherence to NOx emissions budgets based on the one-hour ozone standard after the repeal of the one-hour standard, as nonconformance with the mandate in Michigan v. EPA, and as disparate treatment of Georgia without lawful justification.

The Appeals Court rules, "We do not reach the merits of these contentions because we conclude that North Carolina lacks standing, specifically that North Carolina failed to show redressability." Further, the Appeals Court says, "The Division’s [Georgia Environmental Protection Division] showing in its sur-reply that Georgia intends to use CSP credits to cover its excess emissions thus resolves the question of redressability, for North Carolina can no longer show that vacating the Withdrawal Rule and re-including northern Georgia in the NOx SIP Call is likely to redress North Carolina’s difficulty in meeting the 1997 NAAQS eight-hour
ozone standard. As counsel for North Carolina stated at oral argument, if reinstating Georgia in the NOx SIP Call would not lower Georgia’s emissions, then North Carolina has a standing problem. Accordingly, we dismiss North Carolina’s petition for lack of standing."

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Boston & Maine Corp. v. Massachusetts Bay Transportation

Nov 24: In the U.S. Court of Appeals, First Circuit, Case No. 09-1185. The Appeals Court explains that on June 30, 1983, the Boston and Maine Corporation (B&M), a railroad operator, was discharged from bankruptcy by a Consummation Order stating that it was "free and clear of all claims." The Order was pursuant to § 77 of the Bankruptcy Act of 1898, 11 U.S.C. § 205 (repealed 1978). B&M was the operator of what is now known as the MBTA Commuter Rail Maintenance Facility (the Terminal), a thirty-four-acre railroad terminal in the greater Boston area used for refueling diesel trains. In 1983, the Terminal was owned by the Massachusetts Bay Transportation Authority (the MBTA), having been purchased by the MBTA from B&M in 1976; B&M had operated the Terminal under bankruptcy protection from 1970 to June 1983 and had owned the Terminal since the late 1920s. B&M continued to operate the Terminal under an agreement with and for the benefit of the MBTA until December 31, 1986.

The MBTA asserted no claims against B&M regarding environmental matters before B&M's June 1983 discharge from bankruptcy, pursuant to the Consummation Order. The MBTA did, however, assert a claim on May 4, 2004, almost 21 years later, against B&M. The claim was for 95 percent of $15,340,810 for past costs and 95 percent of all future costs, as contribution, under state environmental law, the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (Chapter 21E), for certain cleanup activities the MBTA had undertaken at the Terminal.

The Appeals Court ruled, "We hold that the MBTA's contribution claims under Chapter 21E for contamination prior to the 1983 discharge from bankruptcy are barred as a matter of law by the Consummation Order. We reverse and direct entry of judgment on these claims for B&M." Further the Appeals Court concluded, "Both sides have been ably represented by counsel; the facts and the law require rejection of the MBTA's arguments. The MBTA's contribution claims arising out of pre-June 30, 1983, conduct by B&M are barred by the Consummation Order, so B&M is entitled to an order enjoining the MBTA from pursuing claims for investigation or remediation costs for contamination at the Terminal occurring before June 30, 1983."

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Tuesday, November 24, 2009

Levine v. Vilsack (USDA)

Nov 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-16441. A number of parties including The Humane Society of the United States (collectively “Levine”) appealed from a summary judgment ruling in favor of the Secretary of the United States Department of Agriculture (Secretary or USDA). The case involves a dispute concerning whether chickens, turkeys and other domestic fowl are excluded from the humane slaughter provisions of what the parties (and references subsequent to the enactment) term the “Humane Methods of Slaughter Act of 1958 (HMSA).” In particular, the parties dispute whether poultry should be considered “other livestock” as that phrase is used in that statute.

Levine challenged USDA’s enunciation of its position -- made most recently on September 28, 2005, in a Federal Register Notice issued by USDA’s Food Safety and Inspection Service [see Treatment of Live Poultry before Slaughter, 70 FR 56,624, 9/28/05] -- that “there is no specific federal humane handling and slaughter statute for poultry.” In Levine v. Conner, 540 F. Supp. 2d 1113 (N.D. Cal. 2008), the United States District Court for the Northern District of California (district court) determined that, while the plain meaning of the word “livestock” as used in the HMSA of 1958 is ambiguous, Congressional intent behind the term was clear and consistent with the interpretation adopted by the USDA.

The Appeals Court said, "Because we conclude that Levine cannot satisfy the redressability prong of Article III standing, we vacate that decision and remand to the district court so that it can dismiss the action." Further, the Appeals Court concluded, "Because Levine’s alleged injuries are not redressable by way of this lawsuit, there is a lack of standing to proceed with this action. Consequently, the decision of the district court granting the USDA’s motion for summary judgment is vacated and the case is remanded with instructions to dismiss."

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Thursday, November 12, 2009

National Parks & Conservation Association v. BLM

Nov 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-56814, 05-56815, 05-56843, 05-56832, and 05-56908. Kaiser Eagle Mountain, Inc. (Kaiser) seeks to build a landfill on a former Kaiser mining site near Joshua Tree National Park (Joshua Tree). As part of its landfill development plan, Kaiser sought to exchange certain private lands for several parcels of land surrounding the mine site and owned by the Bureau of Land Managment (BLM). Several parties, including the National Parks Conservation Association (Conservation Association) and Donna and Laurence Charpied (the Charpieds), challenged the land exchange. Nevertheless, the BLM approved the land exchange, as did the Interior Board of Land Appeals (Appeals Board).

The Conservation Association and the Charpieds pursued their challenges in district court on several grounds, including violations of the Federal Land and Policy Management Act (Management Act) and National Environmental Policy Act (NEPA). The district court held for the Conservation Association and Charpieds on the Management Act claims and some, but not all, of the NEPA claims. Under its review, the Appeals Court in a split decision, affirmed in part and reversed in part.

In this somewhat complicated decision, involving several conclusions on separate disputed issues, the majority Appeals Court ruled in part that, "BLM necessarily considered an unreasonably narrow range of alternatives. We therefore affirm the district court’s grant of summary judgment on both the 'purpose and need' and “reasonable range of alternatives” claims under NEPA."

And, "Contrary to the district court’s conclusion, we find that the EIS contains extensive analyses of potential impacts on Bighorn sheep, including migration patterns, habitat loss, and water accessibility. . . [However,] the discussion of [atmospheric] eutrophication is neither full nor fair with respect to atmospheric eutrophication. . . We therefore affirm the district court’s decision on this NEPA claim.

". . .we affirm the district court’s holding that the Charpieds lack standing under NEPA, the National Park Service Organic Act, and the California Desert Protection Act. . . [Also,] "we find that the EIS’s discussion of these issues [desert tortoises, visual, noise, and night lighting impacts, groundwater, and air quality] is sufficient to foster informed decision-making and public participation. We therefore affirm the district court’s grant of summary judgment on these NEPA claims."

Perhaps, most interesting in this case is the lengthy dissenting opinion of Justice Trott. In summary he says, "What sane person would want to attempt to acquire property for a landfill? Our well-meaning environmental laws have unintentionally made such an endeavor a fool’s errand. This case is yet another example of how daunting -- if not impossible -- such an adventure can be. Ulysses thought he encountered fearsome obstacles as he headed home to Ithaca on the Argo, but nothing that compares to the 'due process' of unchecked environmental law. Not the Cyclops, not the Sirens, and not even Scylla and Charybdis can measure up to the obstacles Kaiser has faced in this endeavor. The record here exceeds 50,000 pages. At the beginning, Kaiser had a partner, Browning-Ferris Industries (BFI), but BFI -- a company experienced in the field of solid waste disposal -- dropped out after investing $45 million in the project with nothing to show for it in return.

"I agree with my colleagues insofar as they dispense with the cross-appeal and the public interest and bighorn sheep issues, but I dissent with respect to the rest. The final irony is that my colleagues send the case back to the Bureau of Land Management (BLM) to do something BLM has already adequately done: consider the value of the land involved as a commercial landfill." In the final conclusion of his 49-page dissent, Judge Trott said, "I end with the Technical Advisory Panel’s evaluation: 'the proposed Eagle Mountain Landfill could well become one of the world’s safest landfills and a model for others to emulate.' Don’t hold your breath."

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U.S. v. Albert Investment Co.

Nov 10: In the U.S. Court of Appeals, Tenth Circuit, Chase No. 08-6267. Union Pacific Railroad Co. (Union Pacific) appealed from the district court’s denial of its motion to intervene in an action brought by Plaintiffs-Appellees (United States and the State of Oklahoma) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Appeals Court ruled, "Because Union Pacific has an interest in the underlying action, and a statutory right to intervene, we reverse and remand."

The Union Pacific Railroad Company acquired the Double Eagle Superfund Site in 2003, as part of its merger with the Missouri Pacific Railroad Company. The Appeals Court concluded, "Because Union Pacific has demonstrated all four requirements for intervention as of right -- timeliness, interest, impairment, and inadequate representation -- the district court erred in denying the motion for intervention as of right, and on remand Union Pacific shall be allowed to intervene. Because we find that Union Pacific has a right to intervene, we do not reach the district court’s denial of the motion for permissive intervention."

In an interesting portion of the overall decision, the Appeals Court says, "The notice-and-comment mechanism is not an adequate substitute for intervention, contrary to the government’s claims. . . The government solicits comments regarding proposed consent decrees as a matter of practice. . . Union Pacific submitted comments to the Attorney General within the comment period, and the Department of Justice will file them with the district court. . . As Judge Lucero observed during oral arguments, however, the government is free to ignore the comments because the notice-and comment mechanism is not statutorily mandated. The district court may also disregard Union Pacific’s comments in the absence of any requirement to consider them or any appellate review of the court’s consideration of comments. The failure to consider adequately an intervenor’s objections, on the other hand, is subject to appellate review. . . For these reasons, Union Pacific’s ability to protect its interests will be impaired if it is not a party to this action."

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Monday, November 9, 2009

Friends Of Tims Ford v. TVA

Nov 6: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-5706. Plaintiff-Appellant Friends of Tims Ford (FTF) appeals from the district court’s dismissal of its case on summary judgment for want of standing. FTF is an unincorporated association of individuals, families, and homeowners’ associations, who own property adjoining the Tims Ford Reservoir (Reservoir) or in adjacent communities, and are concerned about the environmental impact of land development near the Reservoir and the environmental impact of increased boating on, and community use of, Reservoir water. FTF seeks declaratory and injunctive relief against the Tennessee Valley Authority (TVA) and James Fyke, in his official capacity as Commissioner of the Tennessee Department of Environment Conservation (TDEC), for alleged violations of the National Environmental Policy Act of 1969 (NEPA) by TVA and TDEC in their implementation of the Tims Ford Reservoir Land Management and Disposition Plan (LMDP), based on the Final Environmental Impact Statement (FEIS) prepared by TVA and TDEC, and for violations of the TVA Act of 1933 (TVA Act) in the development of two parcels of land, Fanning Bend, and a parcel conveyed to the City of Winchester, Parcel 79B. FTF has also brought state law claims against TDEC.

The Appeals Court agreed with the district court and said, "Because we find that FTF has failed to demonstrate standing to bring this case, we affirm the district court’s decision to dismiss this action without prejudice. The Sixth Circuit further explained its decision saying, ". . .we are compelled to find that FTF has failed its burden to demonstrate standing. Under this theory of harm, FTF has failed to allege future injury that could be redressed by the requested declaratory or injunctive relief, as its two members only allege direct harm from already-constructed community boat docks, yet seek: (1) issuance of a declaratory judgment that implementation of the FEIS/LMDP violates the TVA Act and NEPA; and (2) an injunction against unidentified future construction. . . Furthermore, because FTF’s suit does not additionally seek the destruction or modification of the community boat docks, nor does it seek, as noted by the district court, 'remedial measures to counteract or prevent the harms allegedly caused by the current docks,' there is no value to a declaratory judgment stating that TVA and TDEC violated NEPA and the TVA Act. . . Thus, FTF lacks standing to bring its claim alleging ongoing harm to its members’ aesthetic and recreational enjoyment of the Reservoir."

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