Wednesday, December 8, 2010
Dec 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17309. In this important case, in response to levels of pollution that violated national air quality standards, the San Joaquin Valley Unified Air Pollution District adopted "Rule 9510," which requires development sites to reduce the amount of pollutants they emit. The National Association of Home Builders (NAHB) sued the District, claiming that Rule 9510 is preempted by the Clean Air Act.
The district court held that Rule 9510 is not preempted and the majority Appeals Court affirmed that decision. The majority said, "Rule 9510 is an indirect source review program that is not preempted by section 209(e) of the Clean Air Act. The district court's judgment is therefore affirmed."
The separate, concurring in part and dissenting in part, opinion indicated, "Though I agree with the majority opinion that § 209(e)(1) of the Clean Air Act (Act), 42 U.S.C. § 7410 et seq., does not preempt Rule 9510 promulgated by the San Joaquin Valley
Unified Air Pollution Control District (District), I respectfully dissent from Parts IV and V. In my view, Rule 9510 is preempted by § 209(e)(2) of Act because (1) the regulation does not qualify as an 'indirect source review program' under § 110(a)(5), since it directly regulates construction equipment (which are direct emissions sources); and (2) the regulation creates an emissions control 'standard' for construction equipment that has not been approved by the Environmental Protection Agency (EPA)."
Access the complete opinion (click here).
Posted by JPMcJ at 4:35 PM
Wild Fish Conservancy v. Salazar - Dec 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35531. The Appeals Court explains that it is "faced once again with the far-reaching effects of federal hydroelectric projects in the Columbia River Basin on the region's native fish species." It says the fish at the heart of this particular controversy is not salmon, as in most of the earlier cases, and the potential threat to its survival and recovery is not a hydroelectric dam but a hatchery project intended to mitigate a dam's impact. The legal action was brought by the Wild Fish Conservancy (the Conservancy), and centers on a biological opinion (BiOp) addressing the effects of the operations of the Leavenworth National Fish Hatchery (the Hatchery) on the bull trout. See U.S. Fish & Wildlife Service, Biological Opinion for the Operation and Maintenance of the Leavenworth National Fish Hatchery Through 2011 (2008) [hereinafter 2008 BiOp].
The bull trout is listed under the Endangered Species Act (ESA), as threatened throughout its range. The 2008 BiOp, prepared by the U.S. Fish and Wildlife Service (the Service), concluded that the Hatchery's operations from 2006 to 2011 were not likely to jeopardize the continued existence of the bull trout. In a split decision, the majority Appeals Court ruled that, "Because the Service in several respects failed to articulate a rational connection between the facts found and the 'no jeopardy' conclusion, we reverse and remand."
The majority concluded, "We conclude that the 2008 BiOp is arbitrary and capricious because the Service limited the analysis to a five-year period, failed to articulate a rational connection between the facts found and the conclusions made, and issued an incidental take statement lacking adequate monitoring and reporting requirements. Additionally, the Hatchery violated its substantive duty to ensure that its operations did not jeopardize the continued existence of the bull trout. We reverse and remand to the district court with directions to grant the Conservancy's motion for summary judgment and to grant injunctive relief until the Service complies with its obligations under the ESA."
The separate, concurring in part and dissenting in part, opinion indicated, "In sum, the Service provided a rational basis for its no jeopardy conclusion. To conclude otherwise requires neglecting the environmental baseline and distrusting agency experts' analysis of the scope and relevance of continued population decline, mitigated by remedial agency action. I therefore disagree with my colleague's conclusion that the Service's analysis in the 2008 BiOp is irrational. For these reasons, I respectfully dissent from Parts II.A, II.B, II.E and III. of the majority opinion, but otherwise concur."
Access the complete opinion and dissent (click here).
Posted by JPMcJ at 4:34 PM