Tuesday, July 27, 2010

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).