Monday, April 25, 2011

Southern Alliance for Clean Energy v. Duke Energy

Apr 14: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 08-2370, 09-1928, & 09-2113. Appealed from the United States District Court for the Western District of North Carolina, at Asheville.
In this Clean Air Act case, Duke Energy Carolinas, LLC (Duke Energy) challenges an attorneys' fees award by attacking the nature of the victory supporting the award, as well as the merits order on which the fee award was based -- summary judgment in favor of environmental group Plaintiffs Southern Alliance for Clean Energy, Environmental Defense Fund, National Parks Conversation Association, Natural Resources Defense Council, and the Sierra Club (Plaintiffs).
    With its summary judgment victory, Plaintiffs forced Duke Energy to submit to administrative evaluations by the North Carolina
state regulators who administer the Clean Air Act. Those administrative proceedings constituted some success and thus supported an award of attorneys' fees under the Clean Air Act. The Appeals Court said, ". . .nothing this Court might hold with regard to the merits of the summary judgment determination could undo those proceedings or nullify Plaintiffs' success. We therefore affirm the district court's fee award."
    The Appeals Court said further, "Because Duke Energy's merits arguments are irrelevant to our determination that Plaintiffs achieved some success supporting the fee award -- the reversal of which is Duke Energy's sole goal on appeal -- we need not reach them. We hold that Plaintiffs' successes properly supported the award of attorneys' fees and costs and affirm the district
    Access the complete opinion (click here). [*Air]

Yankee Gas Services Co. v. UGI Utilities., Inc.

Apr 13: In the U.S. Court of Appeals, Second Circuit, Case No. 10-1570. Appealed from the United States District Court for the Eastern District of New York. Plaintiffs Yankee Gas Services Company and The Connecticut Light and Power Company (CL&P), current owners of the sites of thirteen former manufactured gas plant facilities (MGPs) in Connecticut, sued defendant UGI Utilities, Inc. (UGI), the alleged past operator of the MGPs, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), to recover plaintiffs' costs in responding to MGP pollution from the period 1884 to 1941. Plaintiffs appealed from a judgment in favor of defendant entered after a bench trial at which the district court determined that UGI was not an operator of nine of the MGPs under the standard set forth in United States v. Bestfoods, 524 U.S. 51 (1998), and that the statute of limitations had run with respect to two of those nine MGPs.
    In a ruling by summary order, that does not have precedential effect, the Appeals Court said, "Because we identify no error of law or fact in the district court's operator determination, we affirm the judgment on that basis and need not address its limitations conclusion." The Appeals Court said further, ". . .we have reviewed the trial record, the district court's meticulous and well-reasoned opinion, and the parties' arguments on appeal, and we identify no legal error or clear factual error in the determination that UGI was not an operator of the subject MGPs during the period in question. . . Accordingly, we identify no error of law or fact in the district court's finding 'that Plaintiffs have failed to prove by a preponderance of the evidence that UGI and CL&P conducted operations at the MGPs in some sort of joint venture or joint undertaking, and that UGI's involvement with the individual MGPs was consistent with its role as an investor and shareholder of, and consultant to, CL&P.'"
    Access the complete order (click here). [*Remed]

Sierra Club v. U.S. Army COE

Apr 8: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 10-13613. An unpublished opinion appealed from the United States District Court for the Middle District of Florida. Intervenor Defendant-Appellant Mosaic Fertilizer, LLC (Mosaic), a phosphate mining company engaged in significant operations in Hardee County, Florida, appealed the order by the district court remanding a mining-permit issued by the United States Army Corps of Engineers (Corps) back to the agency and further enjoining Mosaic from conducting operations approved in that permit.

    Specifically, the district court concluded the permit's issuance did not comply with the requirements of the Clean Water Act, 33 U.S.C. §§ 1251-1376, and that the Plaintiff-Appellees had demonstrated they were entitled to preliminary injunctive relief. In this interlocutory appeal, Mosaic argues the district court's order was a de facto determination of the merits of the Clean Water Act issue that exceeded the proper scope of preliminary injunctive relief. Based upon our review of the briefs, and with the benefit of oral argument, we conclude the district court's remand of the permit to the Corps was improper because it was effectively a final judgment on the merits. The district court based the entry of the preliminary injunction entirely on letters from the Environmental Protection Agency which expressed concerns with the permit, and failed to apply the arbitrary and capricious standard in evaluating the Corps' practicable alternatives analysis.

    In a brief, 3-page decision, the Appeals Court ruled, "Based on the limited record before us, and the lack of a response from the Corps on appeal, we are presently no better equipped to resolve this dispute than was the district court. We therefore vacate the preliminary injunction, set aside the remand to the Corps, and remand this case to the district court for consideration on the merits, after receiving the full Administrative Record. Due to the unique circumstances presented by this case, we direct the
district court to stay the issuance of the permit for 90 days from the date of this order to permit the district court to proceed to a merits determination on the full record."
    Access the complete opinion (click here). [*Water]

Rhodes v. E.I. du Pont de Nemours and Company

Apr 8: In the U.S. Court of Appeals, Fourth Circuit, Case No. 10-1166. Appealed from the United States District Court for the Southern District of West Virginia, at Parkersburg. The Appeals Court indicates that the case arose under the district court's diversity jurisdiction and involves the contamination of a public water supply in Parkersburg, West Virginia. The Appeals Court considered whether the plaintiffs, individuals who consumed the water but have not become ill as a result, demonstrated an injury sufficient to survive summary judgment on certain West Virginia common law tort claims. The Appeals Court also reviewed the district court's rulings denying class certification of those claims under Federal Rule of Civil Procedure 23(b). And, finally, the Appeals Court decided whether the plaintiffs, who obtained voluntary dismissals in the district court of their individual claims for medical monitoring, have standing to pursue an appeal of the district court's denial of class certification of those claims.
    The facts and procedural history in the case indicate that for an extended period of time, DuPont's plant discharged perfluorooctanoic acid (PFOA) into the environment surrounding the Parkersburg City Water Department plant. Measurable quantities of PFOA were detected in the water that is pumped by the Water Department into the plaintiffs' residences. PFOA also has accumulated in the plaintiffs' blood and has been detected in the homes of other customers of the Water Department.
    The plaintiffs asserted six common law claims, individually and on behalf of a class of customers of the Water Department, addressing the contamination of their municipal water supply and the resulting presence of PFOA in their blood. The plaintiffs sought damages with respect to claims of negligence, gross negligence, battery, trespass, and private nuisance. The plaintiffs also sought injunctive relief to obtain long-term diagnostic testing (medical monitoring) for latent diseases on behalf of a class of Water Department customers exposed to PFOA beginning in 2005. Additionally, the plaintiffs asserted individual and class claims for medical monitoring, a common law tort first recognized by the West Virginia Supreme Court of Appeals in 1991.
    The Appeals Court dismissed the plaintiffs' claim challenging the district court's denial of their class certification request for the medical monitoring claims, and affirmed the balance of the district court's judgment. The Appeals Court said, "In conclusion, we affirm the district court's award of summary judgment to DuPont on all the plaintiffs' traditional common law tort claims, namely, the claims of negligence, gross negligence, battery, trespass, private nuisance, and public nuisance. We do not address the separate matter of the district court's denial of class certification of these traditional common law tort claims as these issues are now moot. Finally, we dismiss the plaintiffs' appeal of the district court's class certification ruling on their medical monitoring claims for lack of jurisdiction."
Access the complete opinion (click here). [*Toxics, *Drink]

Wednesday, April 13, 2011

Subscribers Notice:

We are on our Spring publication break. We'll catch you up on all the Appeals Court decisions when
we resume publication on Monday, April 25, 2011.

Friday, April 8, 2011

Gardner v. U.S. Bureau Of Land Management

Apr 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35647. Appealed from the United States District Court for the District of Oregon. According to the Appeals Court, Plaintiffs-Appellants Fred Gardner and Concerned Citizens for Little Canyon Mountain (sometimes collectively Gardner) brought suit for declaratory and injunctive relief pursuant to the Administrative Procedure Act (APA), seeking to compel Defendant-Appellee United States Bureau of Land Management (BLM) to prohibit off-road vehicle use of Oregon's Little Canyon Mountain area. The district court granted summary judgment to the BLM. On appeal, Gardner asserts that the BLM's failure to close Little Canyon Mountain to off-road vehicle use violated the Federal Land and Policy Management Act of 1976 (FLPMA) and off-road vehicle regulations, 43 C.F.R. pts. 8340-8342.
    The Appeals Court affirmed the district court decision and said, "We hold that the BLM did not, and was not required to, make a finding that the off-road vehicle use of which Gardner complains had caused 'considerable adverse effects' on the resources enumerated under 43 C.F.R. § 8341.2(a) and, accordingly, we cannot compel the BLM to act to close Little Canyon Mountain to off-road vehicle use. We also hold that the BLM's denial of Gardner's petition to close Little Canyon Mountain to off-road vehicle use was not arbitrary and capricious."
    Access the complete opinion (click here).

Karuk Tribe v. US Forestry Service

Apr 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-16801. Appealed from the United States District Court for the Northern District of California. The Appeals Court explains that Section 7 of the Endangered Species Act (ESA), § 1536(a)(2), requires interagency consultation for any Federal agency action that may affect a listed species. In this opinion, the Appeals Court determines whether a United States Forest Service (USFS) District Ranger's (Ranger) decision that a proposed mining operation may proceed according to the miner's Notice of Intent (NOI) and will not require a Plan of Operations (Plan) is an "agency action" for purposes of triggering the ESA's interagency consulting obligations.
    The majority Appeals Court said, "We hold that the NOI process does not constitute an 'agency action,' as that term is defined under the ESA. The Ranger's receipt of an NOI and resulting decision not to require a Plan is most accurately described as an agency decision not to act. Because ' "inaction" is not "action" for section 7(a)(2) purposes,' W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006), we affirm the district court's denial of summary judgment on the Tribe's ESA challenge to the NOI process."
    The majority concludes, "The mining laws provide miners like The New 49'ers with the 'right, not the mere privilege' to prospect for gold in the Klamath River and its tributaries. We therefore find it is most accurate to say that the mining laws, not the USFS, authorize the mining activities at issue here. The USFS has adopted a simple review process to sort between those mining activities it will regulate in order to conserve forest resources, and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining rights. The USFS's limited and internal review of an NOI for the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to cause any significant disturbance of the forest or river) is an agency decision not to regulate legal private conduct. In other words, the USFS's decision at issue results in agency inaction, not agency action."
    In a lengthy dissenting opinion the dissenting Judge said, "I respectfully but emphatically dissent from the conclusion of the majority to the contrary." He said, "I would therefore hold that the Forest Service must consult with the Fish and Wildlife Service and the National Marine Fisheries Service before allowing suction dredge mining to proceed under NOIs in the Klamath National Forest. . . The majority attempts to minimize the impact of suction dredge mining, stating it is 'best described' as moving 'a few cubic inches at a time' and 'affect[ing] about one quarter of a cubic yard of the river.' Maj. Op. at 4648, 4653. A typical suction dredge picks up from the bottom of the stream and deposits in a tailings pile about one-quarter of a cubic yard of material per day. A cubic yard contains 11,664 cubic inches. Many square yards of stream bottom are scoured in order to obtain one-quarter of a cubic yard of movable material per day, but the record does not tell us how many."
    Access the complete opinion and dissent (click here).

Energy Northwest v. U.S.

Apr 7: In the U.S. Court of Appeals, Federal Circuit, Case No. 2010-5112. Appealed from the United States Court of Federal Claims. The Appeals Court explains that, the government appeals three categories of damages awarded by the United States Court of Federal Claims for the government's breach of its commitment to dispose of Plaintiff's spent nuclear fuel. The contested categories are as follows: First, the trial court awarded Plaintiff the cost of certain site modifications that the government contended were not proved to have been caused by the breach. Second, the court awarded damages to account for certain indirect overhead expenses that accompanied Plaintiff's mitigation activities, though Plaintiff did not offer proof that the mitigation actually caused specific categories of these indirect overhead expenses to increase. Third, the court awarded Plaintiff the cost of interest payments made in connection with Plaintiff's financing of its mitigation activities. Energy Nw. v. United States, 91 Fed. Cl. 531 (2010).
    The Appeals Court ruled, "We hold that the Court of Federal Claims erred by failing to require Plaintiff to prove that its site modifications were actually caused by the government's breach. We hold that the court was correct in its treatment of Plaintiff's indirect overhead expenses. And we hold that, because the government did not waive its sovereign immunity against the recovery of interest, the court erred in awarding Plaintiff recovery of its interest costs. We therefore vacate the Court of Federal Claims' judgment as to the site modifications, affirm as to the indirect overhead expenses, reverse as to the interest recovery, and remand." In its final conclusion the Appeals Court said, "We therefore vacate the Court of Federal Claims' award of damages for the Columbia plant modifications, affirm the award for indirect overhead expenses, reverse the award of interest, and remand for further proceedings."
    Access the complete opinion (click here).

Thursday, April 7, 2011

Morrison Enterprises v. Dravo Corporation

Apr 5: In the U.S. Court of Appeals, Eighth Circuit, Case No: 10-1468 & 10-1469. On appeal from the United States District Court for the District of Nebraska. The Appeals Court explained that Morrison Enterprises, LLC (Morrison) and the City of Hastings, Nebraska (City) (collectively, appellants), and Dravo Corporation (Dravo) are liable within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) for hazardous substances released at the Hastings Ground Water Contamination Site (Site). Appellants each sued Dravo under § 107(a) of CERCLA, seeking to recover some of the costs they incurred responding to contaminated ground water at the Site.
    The district court denied appellants' motions for summary judgment and granted summary judgment to Dravo on appellants' cost-recovery claims. The district court held (1) CERCLA § 113(f), 42 U.S.C. § 9613(f), provided appellants' exclusive remedy to recover response costs incurred removing contaminants from the City's ground water, and (2) the City's water supply system claims were untimely. The Appeals Court affirmed the district court decision.
    The Appeals Court explains further as part of its decision, "We agree with the district court that the City's previously filed counterclaims against Dravo for declaratory judgment and contribution under § 113(f) do not constitute an initial action to recover response costs under § 107(a). Section 113(g)(2) refers to initial and subsequent actions to recover costs specifically under § 107, not contribution claims under § 113(g). In addition, as Dravo points out, § 113(g)(2)(A) and (B) each set forth a specific limitation period that applies to initial actions. Section 113(g)(3) sets forth a separate limitation period for contribution claims. Allowing a contribution claim to serve as the initial action under § 113(g)(2) would impermissibly subject the action to two different limitation periods. The City's contention conflicts with the express language and the overall scheme of CERCLA."
    Access the complete opinion (click here).