Thursday, October 21, 2010
Oct 20: In the U.S. Court of Appeals, First Circuit, Case No. 09-2643. Appealed from the District Court of Maine in Bangor. The case is about the Canada lynx. The Endangered Species Act makes it unlawful to "take" a member of an endangered species. By regulation, it is also unlawful to "take" a "threatened" species, i.e. one likely to become endangered in the foreseeable future. The term "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect."
The Canada lynx is a wild cat, weighing about 20 pounds, which eats small animals, particularly the snowshoe hare, and is most commonly found in Canada. It is not listed as an endangered species. In 2000, the U.S. Fish and Wildlife Service (FWS) of the federal Department of the Interior listed the Canada lynx as a "threatened" species throughout its U.S. range -- certain states contiguous to Canada, as well as certain Western states. In Maine, a listed state, Canada lynx are found primarily in the northern portion of the state, in state Wildlife Management Districts (WMD) 1 through 11. Maine prohibits the trapping of Canada lynx, but allows the regulated trapping of many other furbearing animals.
The appeal is from the district court's denial of plaintiffs' motion to enjoin Maine state officials from allowing the use of any foothold traps, which are used to legally trap other species, in WMDs 1 through 11. Plaintiffs argued this relief was necessary to prevent "incidental takes" of lynx in these traps. The district court held that plaintiffs had not shown irreparable injury, even recognizing the special emphasis in the Endangered Species Act (ESA) on protecting threatened species. The Appeals Court affirmed the district court decision.
In its opinion, the Appeals Court indicated that the Animal Welfare Institute (AWI) argues the district court erred in not granting other relief, such as a new working group or new regulations. The Appeals Court said, "This argument fails because AWI expressly disavowed such remedies before the district court. It may well have done so for tactical reasons, preferring to stress the
inadequacy of other remedies in order to strengthen its case for injunctive relief against foothold traps. Parties are held to their choices and AWI's bait and switch tactics in the courts are to be deplored, not rewarded. The judgment for defendants is affirmed. Costs are awarded to defendants."
Access the complete opinion (click here).
Posted by JPMcJ at 4:12 PM
Tuesday, October 19, 2010
Oct 18: In the U.S. Court of Appeals, Eighth Circuit, Case No: 09-1639, appealed from U.S. District Court for the District of Minnesota - Minneapolis.
In July 2004, the United States Forest Service issued a Land and Resource Management Plan for the Superior National Forest (the forest plan). Sierra Club, Friends of the Boundary Waters Wilderness, and Northeastern Minnesotans for Wilderness (collectively, Sierra Club) sought judicial review of the forest plan in the district court. As relevant to the appeal, Sierra Club argued that the Forest Service's assessment of the forest plan's environmental impacts violated the National Environmental Policy Act (NEPA). In particular, Sierra Club claimed that the Forest Service had failed to consider the plan's effects on the Boundary Waters Canoe Area Wilderness (BWCAW). The district court determined that the Forest Service had considered adequately the impacts on the nearby BWCAW wilderness area in accordance with NEPA, and therefore granted the Agency's motion for summary judgment. The Appeals Court affirmed the district court decision.
In final summary, the Appeals Court said, ". . .the agency's clear intention to act with neutrality towards the BWCAW, the evaluation of specific impacts to the wilderness area (including certain 'edge effects'), and the inclusion of the BWCAW within broader environmental analyses persuade us that the Forest Service took the 'hard look' required of it under NEPA. We thus conclude that the Forest Service did not act arbitrarily or capriciously in its development of the FEIS [final environmental impact statement]."
Posted by JPMcJ at 4:15 PM
Wednesday, October 13, 2010
Oct 12: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-3344. More than a decade ago the Environmental Protection Agency brought this suit against affiliated owners (i.e. Cinergy et al) of a number of coal-fired electric power plants in the Midwest. The suit claims that Cinergy violated section 165(a) of the Clean Air Act, 42 U.S.C. § 7475(a), by modifying a number of the plants without first obtaining from the agency a permit that the agency contends was required by a regulation, 40 C.F.R. § 52.21(a)(2)(iii), because the modifications were "major" and would produce increases in emissions of nitrogen oxide and sulfur dioxide.
Cinergy argued; the regulation does not require a permit for modifications unless they will increase the hourly rate at which a plant can emit pollutants, even if they will increase the plant's annual emissions by enabling the plant to be operated for more hours during the year. The district judge rejected Cinergy's interpretation. Without the required permit, Cinergy was liable for increased pollution caused by the modifications, and faced the prospect of an injunction that would require it to shut down the plants, plus civil penalties of $25,000 for each day that it had violated the permit requirement.
Cinergy took an interlocutory appeal under from the judge's ruling on the hourly capacity versus actual-emissions interpretation of the regulation. The Appeals Court affirmed that district court decision, agreeing that the regulation required application of the actual emissions standard. United States v. Cinergy Corp., 458 F.3d 705 (7th Cir. 2006). However, the Appeals Court says that one point in that opinion is worth repeating because it bears on an issue in the present appeals.
The Appeals Court indicates, "Cinergy's hourly-capacity interpretation would if adopted give a company that had a choice between making a physical modification that would increase the hourly emissions rate and one that would enable an increase in the number of hours of operation an incentive to make the latter modification even if that would produce a higher annual level of emissions. For that modification would elude the permit requirement and thus shelter the company from liability for the increased emissions. It would also distort the choice between rebuilding an old plant and replacing it with a new one. The Clean Air Act treats old plants more leniently than new ones because it is expensive to retrofit a plant with pollution-control equipment. Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901, 909 (7th Cir. 1990).
"But there is an expectation that old plants will wear out and be replaced by new ones that will thus be subject to the more stringent pollution controls that the Act imposes on new plants. A spur to replacing an old plant is that aging produces more frequent breakdowns and so reduces a plant's hours of operation and hence its output unless the owner invests in continuous, and cumulatively costly, replacement of worn-out parts to keep the plant going. Cinergy's interpretation would if adopted have given the company an artificial incentive instead to renovate its old plants, and by so doing increase their hours of operation, rather than to replace the plants even if replacing them would cost less. For by renovating the plants rather than replacing them, the company could increase their output without having to invest in measures for preventing the enhanced output from generating increased pollution."
The current case follows a jury trial where the verdict was mixed requiring fourteen modification projects at three plants which were at issue; the jury found liability with respect to four of the projects, all at Cinergy's plant in Wabash, Indiana, and all undertaken between 1989 and 1992. These modifications, the jury found, had been likely to increase the plant's annual emissions of sulfur dioxide and nitrogen oxide and therefore Cinergy should have sought a permit.
However, on appeal, the Appeals Court ruled, "Without expert testimony to support an estimate of actual emissions caused by the modifications, the government cannot prevail with respect to the charge of nitrogen oxide pollution; for the government doesn't contest Cinergy's claim that if the testimony of the government's experts should have been excluded, Cinergy is entitled to judgment. Earlier we said that the government cannot prevail with respect to the plant's emissions of sulfur dioxide. Therefore the judgment must be reversed with instructions to enter judgment for Cinergy. The parties have made other arguments, but they are either too feeble to merit discussion. . . The cross-appeal is therefore dismissed, while the judgment in the government's favor is, as we said, reversed."
Posted by JPMcJ at 4:24 PM
Oct 12: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35708. In brief summary, the appeal involves the interplay between the issuance or renewal of Bureau of Land Management (BLM) grazing permits and the fee-shifting provisions of the Equal Access to Justice Act (EAJA). Western Watersheds Project (Western Watersheds) appeals a summary judgment determination that EAJA fees were not available to Western Watersheds because its environmental claims were brought in a grazing permit renewal proceeding. The Appeals Court agreed with the district court's reasoning and affirmed its decision. The Appeals Court concluded, "Because Western Watersheds' commendable efforts to insure environmental compliance occurred within a proceeding Congress excepted from EAJA recovery, we affirm the district court's determination in that regard."
Posted by JPMcJ at 4:22 PM
Monday, October 4, 2010
Sep 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35200. The Appeals Court issued an order indicating, "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be heard en banc."
According to a supplemental brief filed by the appellant "Recreation Groups," the panel has asked the parties to file supplemental briefs "on the following question: Whether this case should be heard en banc to decide if this court should abandon the 'federal defendant rule,' which prohibits private parties from intervening of right as defendants under Federal Rule of Civil Procedure 24(a) on the merits of claims arising under the National Environmental Policy Act." The Recreation Groups stated that the "question framed by the panel should be heard en banc. The Court should abandon the Federal Defendant Rule.
The Recreation Groups explain that the panel's question necessitates two distinct inquiries. First is the question of whether en banc review is warranted. This question typically arises in the context of a petition for rehearing filed by one on the losing end of the panel's decision. The less common context here, through a panel call prior to issuing a decision, implies the importance of the question presented and the need for en banc determination.
The Groups indicated that, "It is apparent that the circuit courts are split on the applicability of the Federal Defendant Rule." They cite decisions by the 10th, 5th and 1st circuits. The Groups conclude in their brief, "The Court should convene en banc to consider the ongoing validity of its unique Federal Defendant Rule. Should the Court consider the question en banc the Recreation Groups will gladly submit additional briefing or argument, which, in addition to the information already submitted, will demonstrate that the Federal Defendant Rule disserves all nonfederal interests, federal defendants and the judiciary in resolving important federal lands management questions."
The Western Environmental Law Center disagreed and said, "If this Court wishes to review the federal defendant rule, it should do so in a case that presents the inconsistencies and problems with the rule, rather than in a case such as this one, which is riddled with other procedural issues. Moreover, the district court's denial of intervention in this case should be affirmed regardless of the federal defendant rule, thus making review of the rule almost peripheral to the outcome of this case. In sum, this Court should deny en banc review of the federal defendant rule in this case."
Posted by JPMcJ at 4:27 PM