Wednesday, September 8, 2010
Sep 7: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-3494. As explained by the court, East Dubuque, Illinois, is a small town on the Mississippi River. One local company that has profited from the river's proximity is IEI Barge Services, Inc. (IEI). IEI stores coal in an outdoor pile and loads it onto river barges. As the coal is moved around, coal dust is thrown off into the air. One of IEI's neighbors, Charles McEvoy, objected to the coal dust from IEI's
operations, because it was drifting into his home; he filed suit in Federal court. McEvoy's concerns were shared by others in the area.
The Appeals Court notes that this suit, ". . .is about which legal tools are available to someone who wants to shift the cost of pollution to the polluter. We must consider whether the Clean Air Act. . . The district court concluded that the Act's citizen-suit provision does not support such an action. While we have no trouble recognizing why plaintiffs are seeking a remedy, we too conclude that the plaintiffs' allegations fall outside the scope of the Act."
In its final opinion, the Appeals Court said, "Recognizing the ambiguity in the text of the regulation, we asked the parties during oral argument if they could identify any specific rules or background principles in Illinois law to guide our interpretation. The parties submitted supplemental briefs on this question, and we thank them for their efforts. In the final analysis, however, we were convinced by these submissions and our own research that it is not our role to flesh out this regulation without better guidance from the competent administrative bodies. In addition, we do not exclude the possibility that an Illinois court might be able to clarify some of the ambiguity. Any statements from the Illinois executive branch -- including, but not limited to, formal or informal guidance from the Illinois Environmental Protection Agency -- should be given due consideration by any court interpreting this provision and its interaction with the Act. Without any such guidance, however, we conclude that the Fugitive Particulate Matter regulation cannot be used as the basis of a citizen's suit under the Clean Air Act."
Posted by WIMS at 4:31 PM
Sep 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35359. The Bureau of Land Management (BLM) is the Federal agency charged with overseeing livestock grazing on over 160 million acres of public land in the western United States. Pursuant to the BLM's authority under the Taylor Grazing Act of 1934, the BLM has adopted regulations that implement its grazing management responsibilities. On July 12, 2006, the Secretary of the Interior proposed eighteen amendments to the BLM's grazing regulations. The stated purpose of the proposed amendments was to improve the working relationships with permittees and lessees (i.e. ranchers), to protect the health of rangelands, and to increase the administrative efficiency and effectiveness of the BLM grazing management program.
Plaintiffs argued that the BLM violated the National Environmental Policy Act (NEPA) by failing to take the required "hard look" at the environmental effects of the revised regulations; failed to consult with the United States Fish & Wildlife Service (FWS) as required by the Endangered Species Act (ESA); and violated the Federal Land Policy and Management Act (FLPMA) in promulgating the 2006 Regulations. Shortly after the suit was filed, Public Lands Council and the American Farm Bureau Federation (collectively Intervenors -- two organizations that represent the interests of ranchers in the western states -- intervened on behalf of the BLM to defend the proposed amendments.
The Appeals Court ruled, "Because we agree with the district court that the BLM violated NEPA and the ESA in adopting the 2006 amendments, we affirm the court's grant of summary judgment to Plaintiffs as to these claims. We also affirm the district court's permanent injunction enjoining the BLM regulations as set forth in the Federal Register of July 12, 2006, amending 43 C.F.R. Part 4100 et seq. Because the district court erred when it failed to consider Plaintiffs' FLPMA claim under the framework and with the deference set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), we vacate the district court's grant of summary judgment in favor of Plaintiffs on this claim and remand it for further consideration."
Access the complete opinion (click here).
Posted by WIMS at 4:29 PM
Aug 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15214. This Endangered Species Act (ESA) case is a challenge to the decision of the National Marine Fisheries Service (NMFS) to list the steelhead, a type of Pacific salmon, as a threatened species in California's Central Valley. In listing the steelhead, NMFS defined it as a distinct species under the ESA, separate from rainbow trout, another type of Pacific salmon that breeds with and looks like the steelhead. The separate listing was a departure from the prior NMFS policy of classifying interbreeding Pacific salmon as a single species.
Plaintiffs are irrigation districts in California's Central Valley whose operations are impeded by the listing. They contend that the listing violated the ESA because steelhead and rainbow trout interbreed, and the statute therefore requires NMFS to treat them as a single species. Plaintiffs also contend that NMFS violated the Administrative Procedure Act (APA) by failing adequately to explain its decision to adopt a new policy for classifying the fish.
The Appeals Court said, "We agree with the district court that under the ESA, interbreeding is not alone determinative of whether organisms must be classified alike where, as here, they develop and behave differently. We also find that NMFS' explanation for its change of policy satisfies the standards set forth in the Supreme Court's recent decision in F.C.C. v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). We therefore affirm."
In its conclusion the Appeals Court said, "The two narrow issues before this panel involve first a question of statutory interpretation and second, whether an agency provided an adequate justification for a policy change. We agree with the district court that the definition of "species" in the ESA did not require NMFS to place interbreeding steelhead and rainbow trout in the same DPS. We further hold that, under the Supreme Court's decision in Fox, NMFS sufficiently justified its decision to apply the DPS Policy to O.mykiss. We therefore affirm the district court."
Access the complete opinion (click here).
Posted by WIMS at 4:28 PM