Tuesday, November 9, 2010

Earth Island Institute v. Carlton (USFS)

Nov 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-16914. Earth Island Institute (Earth Island) appealed interlocutorily the district court's order denying its motion for a preliminary injunction seeking to enjoin the United States Forest Service (USFS) from conducting post-wildfire logging in the Plumas National Forest. The district court concluded: that the applicable forest plan required only the assessment of habitat for the black-backed woodpecker (woodpecker) at the project level; that the Forest Service met that requirement; that the Forest Service adequately responded to Earth Island's dissenting scientific opinions in the project adoption phases; and that the Forest Service's tree mortality guidelines were not legally enforceable. In a split decision, the Appeals Court majority affirmed the district courts decision.
    The majority concluded, "In short, the district court used the correct standard for analyzing Earth Island's likelihood of success on the merits and did not abuse its discretion in finding that Earth Island failed to show that it was likely to succeed on the merits of its NFMA claims. . . the district court correctly analyzed the likelihood of irreparable harm in sufficient depth without impermissibly conflating this with the other required factors. . . The court concluded that if the injunction was granted, the public would lose the immediate benefits of the reforestation efforts. It did not abuse its discretion in doing so."
    In a dissenting opinion, one of the Justices said, "The majority's denial of a preliminary injunction, like the district court's before it, rests on two fundamental errors. First, the majority concludes that the Forest Service has no obligation to ensure species viability in the Plumas National Forest despite numerous clear statements to the contrary in the Plumas National Forest Plan. Second, it concludes that the RHT Hazard Tree Marking Guidelines are not binding on the Forest Service despite the fact that the Forest Service itself acknowledges that they are. The district court rested its denial of a preliminary injunction almost entirely on its erroneous conclusions regarding Earth Island's likelihood of success on the merits. I would therefore grant a temporary injunction and remand to the district court to reconsider Earth Island's application. . ."
    Access the complete opinion (click here).

West Virginia Highlands Conservancy v. Huffman (WVDEP)

Nov 8: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-1474. The West Virginia Department of Environmental Protection (WVDEP) appealed an injunction requiring it to obtain National Pollutant Discharge Elimination System permits under the Clean Water Act (CWA) for reclamation efforts at abandoned coal mining sites. The injunction was based on the district court's conclusion that the plain language of the CWA and applicable U.S. EPA regulations require such a permit. The Appeals Court said the trial court's ruling was correct.
    The text of the CWA, as well as the corresponding regulations issued by EPA, confirm that the permit requirements apply to anyone who discharges pollutants into the waters of the United States. The Appeals Court said, "Under the CWA, it does not matter that a mining company may have created the conditions that call for reclamation. What matters is that an entity, private or public, is currently discharging pollutants into the waters of the United States. In fact, the statute contains no exceptions for state agencies engaging in reclamation efforts; to the contrary, it explicitly includes them within its scope. At bottom, WVDEP's arguments stem from little more than policy disagreements with the statutory text. Finding that to be an insufficient basis for deviating from the law as written, we affirm the judgment of the district court."
    The Appeals Court states further in its conclusion, "In sum, WVDEP's state law obligations to take over bond forfeiture sites and engage in reclamation efforts invoke Clean Water Act obligations to obtain NPDES permits. Permit requirements are often, and sometimes understandably, a source of discomfort for those required to obtain them. If so, West Virginia can attempt to ease the burdens it foresees. It can petition Congress or the EPA to create exceptions to the CWA for states that move to ameliorate the problems private companies leave behind. Or WVDEP can address the other side of the equation and increase the funds available for reclamation, either by raising the SRF tax on coal or enlarging the bonds mining companies must post before beginning their work. Instead of availing itself of these various options, however, WVDEP asks us to bring about the very same results by misconstruing the Clean Water Act. There are better audiences for that invitation. We therefore affirm the judgment of the district court."
    Access the complete opinion (click here).