Alliance For The Wild Rockies v. Cottrell (USDA)

Jul 28: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35756. The Alliance for the Wild Rockies (AWR) appealed the district court's denial of its motion for a preliminary injunction. AWR seeks to enjoin a timber salvage sale proposed by the United States Forest Service. Citing Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the district court held that AWR had not shown the requisite likelihood of irreparable injury and success on the merits. After hearing oral arguments, the Appeals Court issued an order reversing the district court and directing it to issue the preliminary injunction. Alliance for Wild Rockies v. Cottrell, No. 09-35756, 2010 WL 2640287 (9th Cir. June 24, 2010). The Appeals Court says that In its current opinion, it is setting forth its reasons for the reversal, and taking the opportunity to clarify an aspect of the "post-Winter standard for a preliminary injunction."

 

    In its conclusion the Appeals Court said, "We conclude that the district court erred in denying AWR's request for a preliminary injunction. AWR has established a likelihood of irreparable injury if the Project continues. AWR has also established serious questions, at the very least, on the merits of its claim under the ARA

[Appeals Reform Act]. Because AWR has done so with respect to its claim under the ARA, we do not reach its claims under NFMA and NEPA. The balance of hardships between the parties tips sharply in favor of AWR. Finally, the public interest favors a preliminary injunction."

 

    The Appeals Court also discusses the post-Winter issues (i.e. the Supreme Court's recent opinion in Winter v. Natural Res. Def. Council, 129 S. Ct. 365 (2008) [See WIMS 11/12/08] and notes that, "Three other circuits have directly confronted the question whether some version of a sliding scale test has survived Winter. They have split. The Fourth Circuit has held that the sliding scale approach is now invalid. Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 347 (4th Cir.

2009) . . . The Seventh and Second Circuits have held to the contrary [i.e. Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) &  Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010)]. The Ninth Circuit also notes that, The Second Circuit decision came down after the Supreme Court had decided two post-Winter cases, Munaf v. Geren, 553 U.S. 674 (2008), and Nken v. Holder, 129 S. Ct. 1749

(2009).

 

    The Ninth Circuit says, "For the reasons identified by our sister circuits and our district courts, we join the Seventh and the Second Circuits in concluding that the 'serious questions' version of the sliding scale test for preliminary injunctions remains viable after the Supreme Court's decision in Winter."

 

    Access the complete opinion (click here).

Vidiksis v. U.S. EPA

Jul 28: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 09-12544. In this Petition for Review of a Decision of the Environmental Appeals Board, the Appeals Court explains that in 2005, the U.S. EPA filed an administrative complaint against Petitioner John P. Vidiksis. The complaint alleged 69 violations of the Toxic Substances Control Act (TSCA) section 409, 15 U.S.C. § 2689; the Residential Lead-Based Paint Hazard Reduction Act of 1992, and the Federal regulations promulgated thereunder.

 

    An Administrative Law Judge for the EPA (ALJ) found Vidiksis liable on each of the 69 counts and assessed a civil penalty of $97,545. On appeal, the Environmental Appeals Board (EAB) affirmed the decision of the ALJ as to the liability finding and the penalty amount. Vidiksis then appealed to the Eleventh Circuit which affirmed the EAB's ruling on liability and on the penalty amount.

 

   The bulk of the violations were based on Vidiksis's breach of § 745.113(b)(2), requiring the lessor to state either that lead paint is present at the property, or that the lessor has "no knowledge" of the presence of any lead paint at the property. The EAB interpreted this provision to require the lessor to make "one of two affirmative statements" -- to either disclose what the lessor knows about lead-based paint in the housing or to affirmatively state that the lessor has no knowledge of the presence of lead-based paint and/or hazards in the housing. Vidiksis argues that his lead paint notice fulfilled his obligations under § 745.113(b)(2). However, Vidiksis stated only that the premises "may contain lead-based paint," and the Appeals Court said it "therefore did not comply with § 745.113(b)(2). A statement that the premises 'may contain' leadbased paint is insufficient because it does not indicate to the lessee whether the lessor has knowledge of the presence of lead-based paint or does not know one way or the other."

 

    On the assessed penalty, the Appeals Court said in part, "The ERP [EPA's calculation of the penalty was based on the U.S. EPA, Office of Regulatory Enforcement, Section 1018 - Disclosure Rule Enforcement Response Policy for the Lead Paint Disclosure Rule (Feb. 2000)] clearly takes it [i.e. degree of culpability] into consideration. Simply because Vidiksis disagrees with the manner in which the agency has chosen to take it into consideration does not make the agency's interpretation arbitrary or capricious."

    Access the complete opinion (click here).

RSR Corporation v. International Insurance

Jul 26: In the U.S. Court of Appeals, Fifth Circuit, Case No. 09-10405. In this somewhat complicated CERCLA cost recovery case, the Appeals Court provides a summary of the background and proceedings. Accordingly, from 1972 until 1983, Quemetco, Inc. (Quemetco), a subsidiary of RSR Corporation, operated a lead smelter on Harbor Island, near Seattle, Washington. During that time, Harbor Island suffered substantial environmental damage. In December 1982, U.S. EPA announced that it planned to place Harbor Island on its National Priorities List (NPL). In 1986, the EPA determined that Quemetco was a potentially responsible party for the pollution. On May 22, 2000, the EPA filed an action under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) seeking recovery from RSR Corporation for the costs it had expended in cleaning up Harbor Island, as well as for expected future costs.

 

    Meanwhile, on February 2, 2000, International Insurance Company (International) sued RSR Corporation, Quemetco, Quemetco Metals Limited, Inc., and Quemetco Realty, Inc. (collectively, RSR), seeking a declaratory judgment that International had no obligations to RSR under four Environmental Impairment Liability (Environmental) policies which International's predecessor in interest had sold to RSR in 1981. An initial jury trial was held to resolve certain coverage issues, while other coverage and

damages issues were reserved for future resolution. At the conclusion of this initial trial, the district court entered judgment for RSR, holding that International's Environmental policies obligated it to indemnify RSR for remediation costs incurred by the EPA at Harbor Island, to the extent those costs were not excluded by the policies. The Appeals Court affirmed the district court's judgment on September 19, 2005. Int'l Ins. Co. v. RSR Corp., 426 F.3d 281, 286–89 (5th Cir. 2005).

RSR and International were realigned on July 12, 2007. Afterwards, 2

 

    International raised additional defenses which had been unavailable to it at the time of the prior judgment or which had been reserved in the initial jury trial. On October 22, 2008, both parties filed motions for summary judgment. The district court granted International's motion and dismissed RSR's claims, holding that RSR could not recover from International (1) because an "other insurance" clause in International's Environmental policies limited RSR's recovery to sums it had already received from settlement agreements with several other insurance companies and (2) alternatively, because Texas's "one recovery" rule barred RSR from collecting money from International when it had already been fully compensated for its Harbor Island liability through its settlement agreements with other insurance companies. RSR appealed the district court's grant of summary judgment. The Appeals Court affirmed the "take-nothing judgment" of the district court.

 

    The Appeals Court said, "The CGL [Comprehensive General Liability] settlements yielded over $76 million in proceeds, all of which must be allocated to the Harbor Island liabilities before RSR could collect on its Environmental policies. Because the Harbor Island alleged liabilities only totaled $13.1 million, RSR can take nothing under the Environmental policies. Therefore, we hold that the district court did not err in finding that Condition 8 ["other insurance" clause] barred all recovery on the Environmental policies."

 

    Access the complete opinion (click here).

Metropolitan Taxicab Board of Trade v. City of New York

Jul 27: In the U.S. Court of Appeals, Second Circuit, Case No. 09-2901. The City of New York, the New York City Taxicab & Limousine Commission, and City officials appeal a grant of a preliminary injunction by the United States District Court for the Southern District of New York, that enjoined the enforcement of the City's recently amended lease rates for taxicabs on the basis that the new rules are likely preempted under the Energy Policy and Conservation Act (EPCA) and the Clean Air Act (CAA). The lease rates for taxicabs effectively shifted fuel costs from drivers of fleet taxis to fleet owners to incentivize the use of hybrid-engine and fuel-efficient vehicles. The Appeals Court said, "We conclude that the preliminary injunction was appropriate and therefore affirm."

 

    The Appeals Court ruled further, "The sole issue before us is whether the plaintiffs have established a likelihood of success on the merits. . . The City's new rules, based expressly on the fuel economy of a leased vehicle, plainly fall within the scope of the EPCA preemption provision. The plaintiffs, therefore, have demonstrated a likelihood, indeed a certainty, of success on the merits, and we affirm the district court's preliminary injunction on this ground. Because preemption under the EPCA is sufficient to affirm the preliminary injunction, there is no need to reach the question of whether the preemption provision of the CAA would invalidate the City's new rules."

 

    Access the complete opinion (click here).

State of North Carolina v. Tennessee Valley Authority

Jul 26: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-1623. This is a high profile case involving some states and business groups supporting the TVA and many states and environmental organizations supporting the State of North Carolina. The Appeals Court explains that the Tennessee Valley Authority (TVA) appealed an injunction requiring immediate installation of emissions controls at four TVA electricity generating plants in Alabama and Tennessee. The injunction was based on the district court's determination that the TVA plants' emissions constitute a public nuisance in North Carolina. As a result, the court imposed specific emissions caps and emissions control technologies that must be completed by 2013.

 

    The Appeals Court said the ruling was flawed for several reasons. The Justices said, "If allowed to stand, the injunction would encourage courts to use vague public nuisance standards to scuttle the nation's carefully created system for accommodating the need for energy production and the need for clean air. The result would be a balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike. Moreover, the injunction improperly applied home state law extraterritorially, in direct contradiction to the Supreme Court's decision in International Paper Co. v. Ouellette, 479 U.S. 481 (1987). Finally, even if it could be assumed that the North Carolina district court did apply Alabama and Tennessee law, it is difficult to understand how an activity expressly permitted and extensively regulated by both federal and state government could somehow constitute a public nuisance. For these reasons, the judgment must be reversed."

 

    In making its decision, the Appeals Court listed a number of remedies that North Carolina could pursue and said, "This list of possible remedies does not even include private law remedies that may be available to North Carolina. Indeed, if North Carolina believes that TVA is not complying with its permits, the Clean Air Act provides for suits "against any person . . . who is alleged to have violated . . . or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation." 42 U.S.C. § 7604(a)(1). The statute further grants a cause of action against the EPA if it fails to perform any non-discretionary responsibility, 42 U.S.C. § 7604(a)(2), and also allows suit against any entity that constructs a source of emissions without securing the requisite permits. 42 U.S.C. § 7604(a)(3). If North Carolina believes that any of these violations have occurred, it remains free to pursue such avenues as well.

 

    "As this non-exclusive discussion of remedies demonstrates, North Carolina has a number of possible paths to pursue in its entirely laudable quest to guarantee pure air to its citizens. Seeking public nuisance injunctions against TVA, however, is not an appropriate course. The laws in place have been designed by Congress to protect our air and water. Plaintiff would replace them with an unknown and uncertain litigative future. As the Supreme Court has emphasized, the legal difficulties with this approach are legion. No matter how lofty the goal, we are unwilling to sanction the least predictable and the most problematic method for resolving interstate emissions disputes, a method which would chaotically upend an entire body of clean air law and could all too easily redound to the detriment of the environment itself. . . For the foregoing reasons, we reverse the judgment of the district court and remand with directions to dismiss the action."

 

    Access the complete opinion (click here).

Theodore Roosevelt Conservation v. Kenneth Salazar (DOI)

Jul 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-5162. The Appeals Court explains that in March 2007, the Bureau of Land Management (BLM or Bureau), an agency within the Department of the Interior (DOI), released a Record of Decision that established the Atlantic Rim Natural Gas Field Development Project (Atlantic Rim Project). The project was designed to manage the resources of more than 270,000 acres of publicly and privately owned land in south-central Wyoming. Shortly after issuing the Record of Decision, the Bureau began authorizing specific applications for permission to drill wells that accorded with the project.

 

    Theodore Roosevelt Conservation Partnership, Natural Resources Defense Council, and other environmental organizations filed for declaratory and injunctive relief in the district court, arguing the Bureau's Record of Decision, its accompanying environmental impact statement, and subsequent drilling permits violated the National Environmental Policy Act, the Federal Land Policy and

Management Act, and the Administrative Procedure Act.

 

    The district court granted summary judgment for the Bureau. The environmental organizations appealed from the judgment, alleging errors in both the administrative proceedings and the district court's evidentiary rulings. The Appeals Court affirmed the district court on all issues. The Appeals Court concluded, "Though Appellants raise claims of both procedural and substantive inadequacies in the Bureau's decisions concerning the Atlantic Rim Project, they have failed to show that any of those decisions were 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' 5 U.S.C. § 706(2)(A). Nor did the district court abuse its discretion when it excluded extra-record evidence from its evaluation. Accordingly, the district court's decision is affirmed."

 

    Access the complete opinion (click here).

National Corn Growers Assoc. v. U.S. EPA

Jul 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1284. In a brief opening summary the Appeals Court explains that the National Corn Growers Association, the National Sunflower Association, the National Potato Council, and FMC Corporation petition for review of the order of U.S. EPA denying their objections to the EPA's Final Regulation revoking all "tolerances" for the pesticide carbofuran. The Appeals Court said, "We grant the petition for review in part and accordingly vacate the EPA's final rule to the extent it revoked import tolerances for carbofuran. We deny the petition for review in all other respects."

 

    EPA determines the maximum amount of a pesticide residue, which the statute terms a "tolerance," that may remain on or in raw and processed food. EPA may establish or leave in effect a tolerance only if it is "safe." Absent an exemption from the Administrator of the EPA, any food containing a pesticide residue that exceeds an established tolerance is deemed "unsafe" and "adulterated" and may not be moved in interstate commerce. In 2006 the EPA concluded, in a dietary risk assessment, that human exposure to carbofuran, a pesticide used to control insect infestations in a number of crops, is "above the Agency's level of concern."

    EPA sought to limit exposure to carbofuran by revoking all tolerances which would effectively ban the use of carbofuran on both domestic and imported food for human consumption. The petitioners submitted extensive comments in response to the proposed revocation. Also during the comment period, FMC, the only manufacturer of carbofuran in the United States, voluntarily cancelled its registrations under the FIFRA for all but six crops and proposed that the EPA amend the remaining registrations to limit usage in areas particularly susceptible to drinking water contamination (the First FMC Proposal), which EPA accepted. In May 2009 the EPA issued a Final Regulation revoking all tolerances for carbofuran. It concluded that although the First FMC Proposal would reduce exposure to carbofuran, the aggregate exposure from drinking water would still exceed the level of concern with respect to both children and adults. FMC subsequently, submitted a second proposal which EPA also denied.

    The petitioners contend that even if the EPA properly revoked all domestic tolerances for carbofuran, it acted arbitrarily and capriciously, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), in revoking the import tolerances for carbofuran. EPA acknowledges that exposure to carbofuran from imported foods alone is safe. The EPA nonetheless revoked all carbofuran tolerances for imported foods, contending the petitioners failed to make a timely request that import tolerances alone be left in effect.

    The Appeals Court ruled, "The agency's position is untenable, for the petitioners made such a request on two occasions. . .  In sum, the petitioners asked that if all else failed, the import tolerances for carbofuran should be maintained because the EPA itself considered them safe. The EPA's decision to revoke those tolerances was arbitrary and capricious."

    Access the complete opinion (click here).

State of California v. Hearthside Residential Corp.

State of California v. Hearthside Residential Corp. - Jul 22: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-55389. The Appeals Court frames the case and says, "This appeal presents a question of first impression whether 'owner and operator' status under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). . . is determined at the time that cleanup costs are incurred or instead at the time that a recovery lawsuit seeking reimbursement is filed. We hold that the owner of the property at the time cleanup costs are incurred is the current owner for purposes of determining CERCLA liability." The decision affirms the district court's partial summary judgment grant and remands the case for further proceedings not inconsistent with this opinion.

 

    The Appeals Court said further, ". . .we are not persuaded that the limited factfinding required to determine when a recovery action accrued is burdensome enough to require a different outcome. As we previously noted, a CERCLA recovery action accrues at the point that recovery costs are incurred, and the statute of limitations runs from the time a removal action is completed or a remedial action is begun on the site. 42 U.S.C. § 9613(g)(2). Thus, factual questions surrounding the relevant cleanup dates are a routine and familiar component of CERCLA actions, and courts are well equipped to resolve such factual questions without great difficulty. Given that CERCLA's policies promoting settlement and efficient cleanup support the Department's position, we are not persuaded that the possible necessity of determining the accrual date is sufficient to tip the balance in favor of Hearthside's preferred construction. We hold that current ownership for purposes of liability under 42 U.S.C. § 9607(a)(1) is measured from the time the recovery action accrues. Because there is no dispute that Hearthside was the owner of the Fieldstone Property at all times relevant to the remediation of the Residential Site, Hearthside is a current owner. . ."

 

    Access the complete opinion (click here).

City of Pittsfield v. U.S. EPA

Jul 16: In the U.S. Court of Appeals, First Circuit, Case No. 09-1879. The City of Pittsfield, Massachusetts asks the Appeals Court to consider whether EPA's Environmental Appeals Board (EAB) improperly declined Pittsfield's petition seeking the Board's review of EPA's grant of a National Pollutant Discharge Elimination System (NPDES) permit for the Pittsfield Wastewater Treatment Plant. Pittsfield sought changes to the terms of the permit, which was issued pursuant to section 402 of the Clean Water Act (CWA). The EAB held that Pittsfield had procedurally defaulted because its petition failed to identify its specific objections to the permit or to articulate why the Board should assume jurisdiction. The Appeals Court said, "We conclude that the Board did not abuse its discretion in so holding, and we therefore affirm its denial of Pittsfield's petition."

    In its argument, the City attempted to convince the Appeals Court that it should use a standard and interpretation adopted in a case involving the Federal Aviation Administration. However, the Appeals Court said, "We decline the invitation, as the city's interpretation would import a standard of review that is not relevant here. As we have noted . . . the proper standard of review in determining whether the EAB properly denied Pittsfield's appeal petition based on its conclusion that the city had procedurally defaulted on its claim is whether its ruling was 'arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law' under § 706(2)(A) of the APA. [citing] Mich. Dep't of Envtl. Quality, 318 F.3d at 707].]

 

    The Appeals Court said further that the City's reliance on Penobscot Air Services, Ltd. v. FAA "suggest that our standard of review should be otherwise is misplaced. Penobscot Air Services, Ltd. did not involve possible procedural default, but rather a review on the merits of the Federal Aviation Administration's disposition of the petitioner's appeal. In setting forth our standard of review in that case, we noted that the statute in question, the Federal Aviation Act, contained a specific provision directing us to review the FAA's findings of fact to determine if they were 'supported by substantial evidence' . . .Because the Federal Aviation Act was silent as to the standard for reviewing nonfactual matters, we determined that the applicable standard of review for such matters was dictated by the Administrative Procedure Act. In particular, we stated that the APA's 'arbitrary and capricious standard' applied to the review of agency decisions. . .

 

    "The CWA, unlike the Federal Aviation Act, does not provide for its own substantial evidence test. Moreover, even if the substantial evidence standard generally applies to EAB factfinding, there is no need to employ it here. The EAB did not find

any facts in this case -- nor did it have to -- because its decision to deny review was supported by an adequate and independent procedural ground."

 

    Access the complete opinion (click here).

Natural Resources Defense Council v. USDA

Jul 8: In the U.S. Court of Appeals, Second Circuit, Case No. 09-2021. The case is appealed from a judgment of the U.S. District Court for the Southern District of New York that held that Defendants-Appellees (USDA) complied with the National Environmental Policy Act (NEPA) and the Plant Protection Act (PPA) when they adopted new regulations for the importation of unmanufactured wood packaging material into the United States.

 

    The Appeals Court said, "Because we conclude that Defendants-Appellees considered all reasonable alternatives to the proposed rule, and did not act arbitrarily or capriciously in adopting a rule providing for either heat treatment or fumigation with methyl bromide of the wood material prior to importation, we affirm the judgment of the district court."

 

    The Appeals Court described the case saying it concerns "our national response to the significant environmental threat presented by plant pests and pathogens introduced into the United States through the importation of solid wood packaging material (SWPM) -- including pallets, crates, boxes, cases, and skids–used to support, protect, and carry commodities entering the country. Exotic wood-boring insects that accompany SWPM, such as the pine shoot beetle, the Asian longhorned beetle, and the emerald ash borer, undisputedly pose a threat to U.S. agriculture and ecotourism, and to natural, cultivated, and urban forests. While the environmental impact of these destructive insects is real, the United States cannot address this global threat alone, and the U.S. Department of Agriculture, through the Animal and Plant Health Inspection Service (APHIS), is required to balance environmental considerations, international guidelines, and global trade concerns in adopting a final rule for the importation of SWPM. . ."

 

    In its final summation, the Appeals Court explained further, "We agree with the district court that the Defendants did not violate the PPA by failing to elevate environmental concerns over other legitimate factors when formulating the final SWPM rule. See Natural Res. Def. Council, Inc. v. U.S. Dep't of Agric., 2007 WL 1610420, at 4-5. The Secretary's decision to require either heat treatment or fumigation with methyl bromide was not an abuse of discretion given his dual responsibility to protect plants by reducing plant pest risk and to facilitate commerce by avoiding unduly burdensome trade restrictions. Because the record is clear that the Secretary considered the relevant environmental and commercial concerns when deciding on a final SWPM rule, the Secretary cannot be said to have abused his discretion in ultimately concluding that adopting the measures specified in the IPPC Guidelines best accomplished these dual objectives. Finally, Plaintiffs' argument that the Secretary's decision was arbitrary and capricious because he failed to adequately consider a phased-in substitute-materials-only requirement, and the magnitude of the impact on trade from such a requirement, echoes the argument advanced in Plaintiffs' NEPA challenge and it fails for the same reasons."

 

    Access the complete opinion (click here).

Hornbeck v. Salazar Upholds Gulf Deepwater Drilling

Jul 8: In expedited fashion, the U.S. Court of Appeals, Fifth Circuit, issued a 2-1 decision, just hours following oral argument in the case, denying the Obama Administration's request to stay district court ruling that lifted a six month Department of Interior (DOI) moratorium on offshore, deepwell oil and gas drilling. The decision on the stay is temporary, and the court must still issue a ruling on the case as to whether to permanently uphold the U.S. District Court decision. 

 

    According to a media report in the Daily Caller the Appeals Court ruled, "Secretary [Salazar] has failed to demonstrate a likelihood of irreparable injury if the stay is not granted; he has made no showing that there is any likelihood that drilling activities will be resumed pending appeal." The Caller said, "The decision allowed for the federal government to apply to the court for emergency relief should any deep-water rigs actually commence drilling before the full appeal is heard on an expedited calendar in the week of August 30."

 

    On June 22, U.S. District Judge Martin Feldman, for the Eastern District of Louisiana in New Orleans issued an opinion and order lifting the moratorium on deepwater offshore drilling (Hornbeck v. Salazar CA 10-1663) [See WIMS 6/22/10]. The Moratorium, entitled "Suspension of Outer Continental Shelf (OCS) Drilling of New Deepwater Wells," was issued by DOI on May 28, 2010, and NTL No. 2010-N04 [See WIMS 5/28/10]. The six-month moratorium applied to all drilling on the Outer Continental Shelf in water at depths greater than 500 feet."

 

    According to a Reuters media report, DOI spokeswoman Kendra Barkoff commented on the decision and said, "Based on what we have learned since the BP oil spill, it has become increasingly clear that companies may not have adequate containment and response capabilities to respond to a spill and therefore, as the secretary has said previously, he will be issuing a new moratorium." [See WIMS 6/23/10 for various reactions to the moratorium.]

 

    On July 7, the Alliance for Justice issued a report which it said found that many U.S. Fifth Circuit Court of Appeals judges have extensive and multi-faceted ties to the oil industry, a factor which they said "will come into play this week as a three-judge panel hears the Obama Administration's appeal of a lower court decision blocking a six-month moratorium on deepwater drilling in the Gulf of Mexico." The report, Judicial Gusher: the Fifth Circuit's Ties to Oil, examines not only the circuit's judges' financial interests, but also the kinds of clients they had while in private practice, their attendance at industry-sponsored "seminars," and other connections. Detailed information is offered on the three Fifth Circuit judges assigned to hear the Administration's appeal of District Judge Martin Feldman's order prohibiting the drilling moratorium from going into effect.

 

    Among its findings, the report reveals that two of the judges on the appeals panel, Judges Jerry Edwin Smith and William Eugene Davis, frequently represented the oil and gas industries while in private practice. They also attended all-expense-paid "seminars" held at resorts in Big Sky, Montana, and sponsored by the Foundation for Research on Economics and the Environment (FREE), whose purpose is to oppose government regulation, promote free-market solutions to environmental problems, and to "explain why ecological values are not the only important ones." Judge James L. Dennis, the third member of the panel, has extensive financial holdings in at least 18 companies in the energy industry, a situation not uncommon among his Fifth Circuit peers.

 

    According to the brief decision, Circuit Judge Dennis concurred in part and dissented in part. He indicated, "I would grant the Secretary's motion to stay the district court's preliminary injunction pending appeal, and to this extent, I respectfully dissent from the majority's order. I concur, however, in reserving the Secretary's right to apply for emergency relief and ordering an expedited appeal and briefing. I will assign reasons for my dissenting view at a later date."

 

    Access the Appeals Court ruling (click here). Access the Daily Caller article with more details (click here). Access the Reuters article (click here). Access a release from the Alliance for Justice and link to the report (click here). Access a commentary on the Appeals Court decision from the from the Center for Progressive Reform with links to related documents (click here). Access district Judge Feldman's 22-page opinion (click here); and 3-page Order (click here). Access links to the moratorium, notices, and related information on DOI's response (click here). 

U.S. v. Apollo Energies, Inc.

Jun 30: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-3037. In this case the Appeals Court considers the scope of the Migratory Bird Treaty Act (MBTA or Act). The Act declares it a misdemeanor to "pursue, hunt, take, capture, or kill" birds protected by several international treaties. The MBTA also specifies a maximum penalty of $15,000 and six months in prison for a misdemeanor violation, but does not require any particular mental state or "mens rea" [i.e. guilty mind] to violate the statute. The Appeals Court said, "The question this case presents is whether the MBTA constitutionally can make it a crime to violate its provisions absent knowledge or the intent to do so."

 

    Appellants are two Kansas oil drilling operators who were charged with violating the Act after dead migratory birds were discovered lodged in a piece of their oil drilling equipment called a heater-treater [cylindrical equipment up to 20 feet high and more than three feet wide that separate oil from water when the mixture is pumped from the ground]. After a trial before a magistrate judge, both Apollo Energies and Dale Walker (doing business as Red Cedar Oil) were convicted of taking or possessing migratory birds, each misdemeanor violations. Apollo was fined $1,500 for one violation, and Walker was fined $250 for each of his two violations. The Federal district court affirmed the convictions, concluding that violations of the MBTA are" strict liability offenses, which do not require that defendants knowingly or intentionally violate the law."

 

    On appeal, Apollo and Walker renewed their challenges to the MBTA, claiming (1) it is not a strict liability crime to take or possess a protected bird, or, (2) if it is a strict liability crime, the Act is unconstitutional as applied to their conduct. The Appeals Court ruled, "We conclude the district court correctly held that violations of the MBTA are strict liability crimes. But we hold that a strict liability interpretation of the MBTA for the conduct charged here satisfies due process only if defendants proximately caused the harm to protected birds. After carefully examining the trial record, we agree Apollo proximately caused the taking of protected birds, but with respect to one of his two convictions, Walker did not. Due process requires criminal defendants have adequate notice that their conduct is a violation of the Act." The Appeals Court affirmed in part, reversed in part, and remanded the case for further proceedings consistent with this opinion.

 

    The Appeals Court explained further and said, ". . .we agree no reasonable person would conclude that the exhaust pipes of a heater-treater would lead to the deaths of migratory birds. In its findings of fact, the magistrate judge found generally that 'birds

trapped in heater/treaters [were] relatively common in the industry,' Aplt. App. at 23, and 'oil operators have been aware for some time that bird remains are frequently found in heater/treaters,' id. at 24 n.15. The magistrate judge did not provide citations in support of these factual conclusions, and our review of the trial record reveals no substantial evidence of pervasive industry knowledge about the heater-treater problem until the Service's educational outreach campaign. To the contrary, a Fish and Wildlife agent testified bird deaths in heater-treaters were 'brand new' to the Service before the December 2005 inspections, Aplt. App. at

160, and the fact that the Service did not recommend prosecutions during its educational campaign suggests the issue was not well known. Therefore, the magistrate judge's finding as to the April 2007 bird death is reversed."

 

    Access the complete opinion (click here).

Habitat Education Center v. U.S. Forest Service

Jul 29: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-1672. Habitat Education Center appealed from a grant of summary judgment to the United States Forest Service in a lawsuit challenging the environmental impact statement (EIS) prepared by the Agency in connection with a forest management project in the Chequamegon-Nicolet National Forest in northern Wisconsin. The project at issue is a timber sale known as the "Twentymile" project.

 

    In the district court, the plaintiffs made several challenges to the adequacy of the EIS. On appeal, they argue only that the EIS failed to describe the reasonably foreseeable cumulative effects of another proposed timber sale, known as the "Twin Ghost" project. The Appeals Court ruled, "We conclude that at the time the EIS was being prepared, the Twin Ghost project was too

nebulous to be discussed in any meaningful way, and thus affirm the district court's grant of summary judgment to the Forest Service."

 

    The Appeals Court said further in its summary that, "As the district court noted, some notice of Twin Ghost in the Twentymile EIS would have improved the document. It seems that the better practice would be to err on the side of disclosure, both to aid the public in understanding the Forest Service's plans and to avoid costly litigation. But without some indication that meaningful

analysis could have accompanied this mention, it is not a substantial enough ground to invalidate the EIS and start over. The omission of Twin Ghost does not render the EIS any less of a hard look at the environmental consequences of the Twentymile project or cast any doubt on the conclusions drawn in that report."

 

    Access the complete opinion (click here).