Center For Food Safety v. Monsanto

Feb 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17719 & 10-17722. The Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) and Intervenors Monsanto et al. appeal the district court's decision granting a preliminary injunction that mandates the destruction of juvenile Roundup Ready sugar beets planted pursuant to permits issued by the agency. The Appeals Court said, "Because the plaintiffs have failed to demonstrate irreparable harm, we reverse and vacate the preliminary injunction and direct that the permits be given full force and effect." The Appeals Court said further in its final conclusion, ". . .without expressing any views on the merits of the ultimate issues in

this case or other pending related litigation, we vacate the preliminary injunction, reverse, and remand for further proceedings consistent with this opinion."

 

    Additionally, the Appeals Court explained, "At the time Plaintiffs sought the preliminary injunction, none of the irreparable harms they sought to prevent were likely. Their alleged irreparable harms hinged on future APHIS decisions, and nothing prevented Plaintiffs from filing a new legal challenge if and when those decisions were made. The alleged irreparable harms are little more than an expression that 'life finds a way.' Michael Crichton, Jurassic Park 159 (Ballantine 1990). However, an invocation to chaos theory is not sufficient to justify a preliminary injunction. Monsanto warned against premature review of APHIS's regulatory actions under the Plant Protection Act. See 130 S. Ct. at 2759–61. Plaintiffs are unlikely to face irreparable substantive harm from the stecklings, and if a subsequent APHIS decision aggrieves them, they may challenge it and seek appropriate preliminary relief. Id. at 2761. Under these circumstances, we conclude that injunctive relief 'is not now needed to guard against any present or imminent risk of likely irreparable harm.' Id. at 2760. Because Plaintiffs have failed to show that they are 'likely to suffer irreparable harm in the absence of preliminary relief,' Winter, 129 S. Ct. at 374, we need not address the district court's analysis of the remaining elements of the preliminary injunction standard."

 

    Access the complete opinion (click here).

Klamath Irrigation District v. U.S.

Feb 17: In the U.S. Court of Appeals, Federal Circuit, Case No. 2007-5115. Appealed from the United States Court of Federal Claims. Plaintiffs-Appellants (plaintiffs) are fourteen water, drainage, and irrigation districts and thirteen agricultural landowners in Oregon and California. Plaintiffs appeal the final judgment of the United States Court of Federal Claims that, based on two separate summary judgment decisions, dismissed their Fifth Amendment takings claims, their claims under the Klamath River Basin Compact, Pub. L. No. 85-222, 71 Stat. 497 (1957) (the Klamath Basin Compact or the Compact), and their breach of contract claims. See Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504 (2005) (Takings Decision); Klamath Irrigation Dist. v. United States, 75 Fed. Cl. 677 (2007) (Contract Decision).

 

    On July 16, 2008, the Appeals Court certified three questions relating to the takings and Compact claims to the Oregon Supreme Court. See Klamath Irrigation Dist. v. United States, 532 F.3d 1376 (Fed. Cir. 2008) (Certification Order). The certification was pursuant to a procedure whereby unsettled questions of state law may be certified to the Oregon Supreme Court. See Or. Rev. Stat. §§ 28.200-28.255 (2010). Pending action by the Oregon court, the Appeals Court withheld decision on all of plaintiffs' claims. The Oregon Supreme Court accepted the case for certification, Klamath Irrigation Dist. v. United States, 202 P.3d 159 (Or. 2009), and on March 11, 2010, the court rendered its decision, answering the certified questions of the Appeals Court. See Klamath Irrigation Dist. v. United States, 348 Or. 15, 227 P.3d 1145 (Or. 2010) (en banc) (Certification Decision).

    Now, the Appeals Court has vacated the judgment of the Court of Federal Claims and remand the case to the court for further proceedings. The Appeals Court said, "On remand, the court is to (1) consider the takings and Compact claims in light of the Certification Decision; (2) determine whether, as far as the breach of contract claims are concerned, the government can establish that, for purposes of its defense based on the sovereign acts doctrine, contract performance was impossible; and (3) decide the breach of contract claims as appropriate." The Appeals Court said further in its conclusion, "If the court determines that the government is liable for takings or for breach of contract, or both, it will be necessary for it to address the question of damages. Needless to say, we express no views on whatever issues may arise in the setting of a damages determination."

    Access the complete opinion (click here).

Goodspeed Airport LLC v. Department of Environmental Protection

Feb 10: In the U.S. Court of Appeals, Second Circuit, Case No. 10-516. Appealed from the United States District Court for the District of Connecticut. After a bench trial, in favor of Defendants-Appellees, determining that the Connecticut Inland Wetlands and Watercourses Act and the Connecticut Environmental Protection Act, as well as municipal regulations pursuant thereto (specifically the imposition of a permit requirement on cutting trees on protected wetlands), are neither expressly nor impliedly preempted by the Federal Aviation Act, the Airline Deregulation Act, or Federal Aviation Agency regulations promulgated thereunder. The Appeals Court affirmed the decision of the district court.

 

    In conclusion, the Appeals Court said, "Although we hold that Congress has indicated its intent to occupy the entire field of aviation safety, the generally applicable state laws and regulations imposing permit requirements on land use challenged here do not, on the facts before us, invade that preempted field. Further, the impact on air carriers of the laws and regulations at issue here, if any, is too remote to be expressly preempted under the terms of the Airline Deregulation Act. Accordingly, the district

court's judgment of January 13, 2010 is hereby affirmed."

 

    Access the complete opinion (click here).

In Re: Chevron Corp.

Feb 3: In the U.S. Court of Appeals, Third Circuit, Case No. 10-2815. On Appeal from the United States District Court for the District of New Jersey. In this complicated case involving an environmental damages action in Ecuador, South America and a New Jersey environmental consulting firm, the Appeals Court explains, this matter comes on before this Court on appeal from a District Court's order entered June 15, 2010, granting Chevron Corporation the opportunity to engage in discovery pursuant to its application under 28 U.S.C. § 1782. Section 1782(a) provides in material part that "[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal[.]"

 

    Section 1782(a), however, includes the limitation that "[a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege." The District Court, following a hearing that consisted of arguments of counsel, found that it was appropriate for it to grant a portion of Chevron's section 1782 application. In reaching its result the Court rejected a privilege issue raised in the proceeding by appellants, the plaintiffs in an environmental damages action in Ecuador and a New Jersey environmental consulting firm, Uhl, Baron, Rana & Associates, Inc. (UBR), engaged by the plaintiffs in the Ecuadorian case as a non-testifying environmental consultant. The Court in rejecting the claim of privilege held that "[t]o the extent that any privilege or immunity from disclosure would otherwise apply to some or all of the discovery sought by Chevron pursuant to its Application, any such privilege has been waived and/or does not apply pursuant to the crime-fraud exception[.]"2 App. at 3.

 

    The Appeals Court ruled, "We now hold that the District Court applied the appropriate standards in considering Chevron's section 1782 application and correctly determined that the provision of documents to an Ecuadorian court-appointed expert to assess damages resulted in a waiver of any work-product protections and attorney-client privileges that might otherwise have precluded discovery of those documents. We limit our opinion, however, because we also hold that the District Court's ruling that the crime-fraud exception to the attorney-client privilege was applicable, to the extent that the privilege was not waived, was too sweeping and has the potential to pierce the attorney-client privilege for documents that were not created or used in furtherance of the alleged fraud and thus are not subject to disclosure through the application of the exception. We therefore will vacate the District Court's determination with respect to the crime-fraud exception to the attorney-client privilege and will remand the case to the District Court so that it can conduct an in camera review of the relevant documents and determine whether the crime-fraud exception to the attorney-client privilege is applicable to any of the documents and, if so, which ones."

 

    Access the complete opinion (click here).

Association of Irritated Residents v. EPA

Feb 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-71383. On Petition for Review of an Order of the U.S. EPA. The Association of Irritated Residents, Natural Resources Defense Council, and others petition for review of a final action by EPA approving in part and disapproving in part revisions to California's State Implementation Plan for meeting air quality standards for ozone under the Clean Air Act. The Appeals Court granted the petition for review and remanded the case to EPA for further consideration.

 

    In summary, the Appeals Court said, "EPA's approval of the 2003 SIP Revision was arbitrary and capricious. EPA should have ordered California to submit a revised attainment plan for the South Coast after it disapproved the 2003 Attainment Plan. EPA should have required transportation control measures. EPA is required to determine whether the Pesticide Element has sufficient

enforcement mechanisms to satisfy the requirements of the Act. We grant the petition for review and remand to the EPA for further proceedings consistent with this opinion."

 

    Access the complete opinion (click here).

Ocean County Landfill Corp v. US EPA

Feb 2: In the U.S. Court of Appeals, Third Circuit, Case No. 09-2937. On Petition for Review from the U.S. EPA Region II. U.S. EPA issued a letter opining that facilities operated by Ocean County Landfill Corporation (OCLC) and Manchester Renewal Power Holdings (MRPC) were under common control for the purposes of air emissions permitting. OCLC challenged that determination under subsection 307(b)(1) of the Clean Air Act. See 42 U.S.C. § 7607(b) (providing for judicial review of any "final action" by the EPA). The EPA moved to dismiss for lack of subject matter jurisdiction. The Appeals Court granted the EPA motion.

 

    The Appeals Court ruled, "the EPA's common control determination is not "final action" within the meaning of 42 U.S.C. § 7607(b). Therefore, we lack jurisdiction to hear OCLC's petition for review, and grant the motion to dismiss it."

 

    Access the complete opinion (click here).

California Wilderness Coalition v. US Department of Energy

Feb 1: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 08-71074, 08-71823, 08-71829, 08-71831, 08-71845, 08-71870, 08-71872, 08-71884, 08-71908, 08-72423, 08-72644, 08-72835. In this case Petitioners including The Wilderness Society, Natural Resources Defense Council, California Wilderness Coalition, and many more environmental organizations, combined with Petitioner states including Pennsylvania, New Jersey, and Virginia; with Respondents United States Department of Energy and many Respondents-Intervenors including Allegheny Energy, Inc., American Public Power Association, Edison Electric Institute, Monongahela Power Company, and many more -- thirteen petitions in all for review challenge the Department of Energy's (DOE) implementation of the Energy Policy Act of 2005 (EPAct), which added a new section 216 to the Federal Power Act (FPA), codified as 16 U.S.C. § 824p (sometimes referred to as § 216).

 

    Petitioners offer three distinct challenges to DOE's actions: (1) DOE failed to consult with the affected States in undertaking the Congestion Study as required by § 824p(a)(1); (2) DOE failed to properly consider the potential environmental consequences of its designation of national interest electric transmission corridors (NIETCs); and (3) DOE's actual designations of the Mid-Atlantic Area National Corridor and the Southwest Area National Corridor are arbitrary, capricious, and not supported by the evidence.

 

    The Appeals Court in a split decision ruled, "We determine that DOE failed to properly consult with the affected States in conducting the Congestion Study and failed to undertake any environmental study for its NIETC Designation as required by the National Environmental Protection Act (NEPA), 42 U.S.C. § 4332(C). We also determine that these failings were not harmless errors. Accordingly, we vacate the Congestion Study and NIETC designation and remand the cases to the DOE for further proceedings. Because we vacate the NIETC designation, we do not consider the merits of petitioners' challenges to the specific national corridors other than as necessary to determine that DOE's failures to consult and to undertake an environmental study were not harmless errors."

 

    In the dissent, one Justice indicates, "This is a tale of two errors. First, the DOE erred by not consulting with affected states at the threshold of a massive, yearlong, nationwide study of electric transmission congestion. But this error was harmless. Petitioners have not shown that DOE's error prevented them from submitting information or making arguments to DOE, nor have they shown that DOE would have made a different decision absent the error. In short, they have failed to offer even a scintilla of evidence to establish prejudice. Under controlling Supreme Court precedent, therefore, we must uphold DOE's actions. Shinseki v. Sanders, 129 S.Ct. 1696, 1704-06 (2009).

 

    "But here is where the second error comes in, namely, the majority's ruling that DOE must complete the entire process again even though its consultation error caused no harm. Instead of recognizing that Sanders rejected the presumption of prejudice articulated in Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir. 1992), the majority employs this discredited approach to nullify DOE's efforts. In doing so, the majority inflicts the only real injury in this saga. I respectfully dissent."

 

    Access the complete opinion and dissent (beginning page 70 of 88) (click here).

Chico Service Station, Inc. v. Sol Puerto Rico Ltd.

Jan 26: In the U.S. Court of Appeals, First Circuit, Case No. 10-1200. Appealed from the U.S. District Court of Puerto Rico, San Juan. As explained by the Appeals Court, "This appeal requires us to assess the propriety of Burford abstention in a citizen suit under the federal Resource Conservation and Recovery Act (RCRA). Appellants Chico Service Station, Inc. and José Chico brought the suit in an effort to force the cleanup of contamination caused by leaking underground storage tanks (USTs) at a former gasoline filling station. Their citizen suit represents the latest in a long-running series of proceedings aimed at addressing contamination at the site. In addition to an investigatory proceeding at the Puerto Rico Environmental Quality Board (EQB) that has been ongoing since leaks were discovered in the early 1990s, appellants have filed two lawsuits in commonwealth courts over the past decade related to the contamination of the site."

   

    The Appeals Court said, "The pendency of these parallel state administrative proceedings led the district court to abstain from hearing the appellants' federal citizen suit, ordering dismissal on the authority of Burford v. Sun Oil Co., 319 U.S. 315 (1943). Application of the Burford abstention doctrine to RCRA citizen suits is an issue of first impression in this circuit. On careful

consideration, we find abstention to be inappropriate, and we therefore vacate the district court's judgment."

    In summary the Appeals Court said, "The circumstances that can sustain a federal court's abstention from the duty to exercise jurisdiction are rare. This is particularly true for citizen suits brought under RCRA. In light of the important federal interests at stake and the care with which Congress delineated the situations in which RCRA citizen suits will be barred, only exceptional circumstances could justify abstention. Because such circumstances are not present here, the district court erred in abstaining. Moreover, we conclude that neither the diligent prosecution bar nor mootness can independently support the district court's dismissal of Chico's suit. We must therefore vacate the judgment of the district court. Costs shall be awarded to the appellants."

    Access the complete opinion (click here).