Jensen Family Farms, Inc. v. Monterey Bay Air Pollution District

May 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-16790. Appealed from the United States District Court for the Northern District of California. In 2007, the Monterey Bay Unified Air Pollution Control District (District) adopted and began enforcing rules that regulate diesel-powered engines. In particular, the District's regulatory regime: (1) requires owners and operators to register and pay fees for certain diesel engines used in agricultural operations, and (2) sets emissions standards for stationary diesel engines within the District. The principal question in the case -- among other questions -- is whether the District's rules are preempted by the Federal Clean Air Act (CAA), 42 U.S.C. §§ 7401 et seq. The Appeals Court said, "We hold that the District rules are not preempted, and affirm the district court's judgment on the pleadings in favor of the defendants.

 

    Explaining further its decision, the Appeals Court said, "Jensen advances two theories of 'state preemption' of Rules 220 and 310. Jensen first argues that 'insofar as [Rules 220 and 310] were issued pursuant to Cal. Code Regs. tit. 17, § 93116, they are preempted.' Because Rules 220 and 310 were issued pursuant to Cal. Health and Safety Code §§ 39656, 39659 and 39666, not Cal. Code Regs. tit. 17, § 93116, there is no basis for Jensen's claim that § 93116 'preempts' Rules 220 and 310. Jensen also argues that Rules 220 and 310 are preempted by Cal. Code Regs. tit. 13, § 2450 et seq. which creates California's 'Portable Equipment Registration Program.' These regulations 'preempt districts from permitting, registering, or regulating portable engines and equipment units . . . except in the circumstances specified in the regulations.' Id. Registration is voluntary and '[i]n the event that the owner of an engine or equipment unit elects not to register under this program, the engine or equipment unit shall be subject to district permitting requirements. . . .' Id. at § 2451(d). Because Jensen has not alleged that it participated in this voluntary program, the Rules are not preempted as applied to Jensen."

 

    Access the complete opinion (click here). [*Land]

Sierra Forest Legacy v. Sherman

May 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17796 & 10-15026. Appealed from the United States District Court for the Eastern District of California. This high visibility, multiple party case concerns whether the process of establishing management guidelines governing 11.5 million acres of Federal land in the Sierra Nevada region complied with both the procedural requirements of the National Environmental Policy Act (NEPA) and the substantive restrictions of the National Forest Management Act (NFMA). Environmental groups -- Sierra Forest Legacy, the Center for Biological Diversity, the Natural Resources Defense Council, the Sierra Club and the Wilderness Society (collectively Sierra Forest) -- appeal a largely unfavorable summary judgment against them and a favorable but limited remedial order in their NEPA and NFMA suit challenging the 2004 Sierra Nevada Forest Plan Amendment (the 2004 Framework) and the Basin Project, a timber harvesting project approved under the 2004 Framework. The State of California also appeals a summary judgment against it and a limited remedial order in a related NEPA action.

 

    The district court found that the U.S. Forest Service and related federal defendants (collectively the Forest Service) violated NEPA by failing to consider alternative actions using the same modeling techniques and management priorities, but the court rejected several other NEPA and NFMA claims. The district court ordered the Forest Service to prepare a supplemental environmental impact statement (SEIS) to remedy the NEPA error and denied Sierra Forest and California's requests to enjoin implementation of the 2004 Framework in the interim.

 

    Sierra Forest and California argue that the Forest Service violated NEPA both by failing to consider short-term impacts of the 2004 Framework and by failing to disclose and rebut expert opposition. Sierra Forest separately contends that the Forest Service violated NEPA when approving the Basin Project by failing to analyze cumulative impacts to sensitive species. Sierra Forest also argues that the 2004 Framework violates NFMA by failing to maintain viable populations of old forest wildlife. Sierra Forest further argues that the Basin Project specifically violates NFMA by failing to comply with the 2004 Framework's management indicator species monitoring requirement, despite a 2007 Amendment to the 2004 Framework that purports retroactively to eliminate the monitoring requirement. Both Sierra Forest and California also contend that the district court abused its discretion when considering the equitable factors governing entry of a permanent injunction. The Forest Service and numerous intervenors contest these assertions and assert several procedural bars to relief.

 

    In this partially split, fragmented decision a majority Appeals Court affirms the district court's decision on the merits of Sierra Forest and California's NEPA claim. The majority said, "Specifically, we hold that Sierra Forest and California have standing to assert a facial NEPA claim against the 2004 Framework but that the Framework SEIS adequately addressed short-term impacts to old forest wildlife and disclosed and rebutted public opposition. Similarly, we hold that the Forest Service did not violate NEPA when approving the Basin Project because the Forest Service adequately addressed cumulative impacts of the proposed management action. And we hold that the Forest Service violated NEPA by failing to update the alternatives from the 2001 Framework SEIS to reflect new modeling techniques used in the 2004 Framework SEIS. We vacate, however, the district court's orders granting a limited remedy and remand for reconsideration of the equities of a 'substantive' injunction without giving undue deference to government experts."

 

    However, as the Appeals Court notes, "There are thus four separate opinions in this case. First, a NEPA opinion written by Judge Fisher and joined by Judge Reinhardt appears as Parts I-VI of the decision. Second, a NFMA opinion written by Judge Reinhardt appears as Part VII. Third, a dissent by Judge Fisher on the NFMA issue follows Part VII. Fourth, an opinion by Judge Noonan concurring in the result on the NFMA issue, and dissenting from the NEPA opinion, concludes the decision."

 

    Access the complete opinion, concurrence and dissents (click here). [*Land]

 

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In Re: Application Of Chevron Corporation

May 25: In the U.S. Court of Appeals, Third Circuit, Case Nos. 10-4699 & 11-1099. Appealed from the United States District Court for the Eastern District of Pennsylvania. As explained by the Appeals Court, this matter comes on before this Court on appeal from the District Court's December 20, 2010, order granting Chevron Corporation (Chevron), and two of its attorneys discovery from attorney Joseph C. Kohn and his law firm, Kohn, Swift & Graf, P.C. (KSG), pursuant to discovery applications that the Chevron applicants filed under 28 U.S.C. § 1782. Section 1782 provides 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,‖ subject to the express 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.‖ 28 U.S.C. § 1782(a).

    The Ecuadorian plaintiffs contend that the district Court misstated the law regarding waiver of the attorney-client privilege, causing it to omit fairness considerations in its analysis, and that consequently its ruling that the attorney-client privilege was waived for all documents in Kohn's file related to the Lago Agrio litigation primarily on the basis of the filming of the documentary Crude, which chronicled the Lago Agrio litigation, was too broad.

 

    The Appeals Court rules, "Inasmuch as we hold that the communications filmed for Crude and its outtakes were not covered by the attorney-client privilege when made due to the presence of the filmmakers at the time of the communications, we will reverse the District Court's orders because the public disclosure of non-privileged communications does not lead to a subject matter waiver of the attorney-client privilege for communications covered by the privilege. We, nevertheless, will remand the matter to the District Court so that it may consider the Chevron applicants' contention that certain communications in Kohn's file are discoverable pursuant to the crime-fraud exception to the attorney-client privilege."

 

    The Chevron Ecuador Lawsuit Clearinghouse blog summarizes the decision saying, "In a decision lending support to plaintiffs' lawyers in a massive pollution lawsuit against Chevron, the U.S. Court of Appeals for the Third Circuit on Wednesday reversed a lower-court ruling that the Philadelphia law firm of Kohn, Swift & Graf P.C. must disclose e-mails and other confidential communications it had in connection with the case. The appeals court sent the case back to U.S. District Judge Jan E. DuBois in Philadelphia, saying there must be evidence linking the Kohn firm to fraud before the firm must disclose communications with its experts in the case and other lawyers. It said it had seen no such evidence."

 

    Access the complete opinion (click here). Access an article explaining further from The Chevron Ecuador Lawsuit Clearinghouse (click here). [*Toxics, *Remed]

 

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Downing/Salt Pond Partners, L. v. State of RI and Providence

May 23: In the U.S. Court of Appeals, First Circuit, Case No..10-1484 , Appealed from the District Court of Rhode Island, Providence. As described by the Appeals Court, Downing/Salt Pond Partners, L.P., frustrated by two state agencies' restrictions on its development of a coastal residential subdivision in Narragansett, Rhode Island, appeals the district court's dismissal of its Federal takings claims under the Supreme Court's ripeness requirements for such claims, set forth in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Downing argues that it is excused from one Williamson County requirement, that it pursue any "adequate procedure for seeking just compensation" that state law provides, id. at 195, under a decision of the First Circuit. It argues it is excused from the other Williamson County ripeness requirement, that the relevant government agency has reached a "final decision regarding the application of the regulations to the property at issue," id. at 186, because the State agency has not yet entered a final decision despite Downing's repeated requests that it do so.

    The Appeals Court rules, "We affirm the dismissal of the complaint, reaching only the first issue. We hold again that Rhode Island's inverse condemnation procedure satisfies the Williamson County requirements and must be followed. See Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 93 (1st Cir. 2003)."

 

    In its summary, the Appeals Court said additionally, "We decline to address the issues raised for the first time by amicus in its brief, which argues that Williamson County's ripeness rules apply only to Takings Clause claims, leaving plaintiffs free to pursue in federal court Due Process Clause and Equal Protection Clause claims that arise from the same allegedly illegal state conduct. '[A]mici may not make up for waiver by a party,' Family Winemakers of Cal. v. Jenkins, 592 F.3d 1, 17 n.23 (1st Cir. 2010), and may not introduce a new argument into a case, Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 74 n.5 (1st Cir. 1996). We note only that we have previously held that plaintiffs cannot, merely by recasting its takings claim "in the raiment of a due process violation," evade the Williamson County ripeness requirements. Deniz, 285 F.3d at 149. While the two agencies strenuously deny that they have been unresponsive or have unreasonably delayed their decisions on Downing's project, we express the hope that the parties will promptly attempt to resolve any remaining disagreements."

 

    Access the complete opinion (click here). [*Land, CA1]

Resurrection Bay Conservation v. City of Seward, Alaska

May 19: In the U.S. Court of Appeals, Ninth Circuits, Case No. 10-35446. Appealed from the United States District Court for the District of Alaska. The issue presented by this appeal is whether the district court abused its discretion in denying an award of attorney fees to Resurrection Bay Conservation Alliance, an Alaska nonprofit corporation, and Alaska Community Action on Toxics, an Alaska nonprofit corporation (collectively RBCA) pursuant to section 505(d) of the Clean Water Act (CWA), because RBCA came within the "special circumstances" standard first elaborated in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per curiam).

 

    The Appeals Court concluded "that the district court abused its discretion in ruling that special circumstances were demonstrated, and we remand with instructions that it award that portion of RBCA's fees and costs reasonably incurred in furtherance of the CWA's purpose."

 

    In part, the District Court said, "At best, [RBCA] prevailed on only a small portion of their case. . . Ultimately, the City has not changed any behavior that existed prior to the lawsuit. All that was accomplished was the application for and issuance of one permit to allow activities that were legitimately taking place. . . The Court accordingly finds that this case has unique and "special circumstances" and an award of attorney fees in these circumstances would be unjust."

 

    The Appeals Court said, "First, the district court's analysis misperceives the importance of the CWA's permit requirements and the relief obtained by RBCA. . . Second, although the CWA also forbids pollution, neither the district court nor the City has identified any basis in law for the proposition that the absence of evidence of actual pollution was dispositive. . . Third, neither the district court nor the City has identified any basis in law for the notion that a special circumstances determination can or should be supported by a finding that the City benefitted economically by failing to apply for and obtain an NPDES permit. . . Fourth, the district court's analysis focused solely on whether the City was forced to cease polluting or potentially polluting activities in which it had previously been engaged. . . The district court's perception that RBCA's victory was so insignificant as to constitute a special circumstance to deny any award of attorney fees misapprehended the role of the CWA's permit requirements in furthering the statute's purpose. . ."

 

    RBCA sought an award of fees in the amount of $119,566.50 and costs in the amount of $4,790.80, for a total award of $124,357.30, and asks that the court award the full amount requested because it was not disputed on substantive grounds at the district court. The Appeals Court concluded, "The district court's denial of an award of attorney fees and litigation costs is vacated, and this matter is remanded to the district court with instructions to award RBCA's fees and costs that were reasonably incurred in furtherance of the Clean Water Act's purpose."

 

    Access the complete opinion (click here). [*Water]

 

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Industrial Communications and v. Slade

May 19: In the U.S. Court of Appeals, First Circuit, Case No. 10-1738. Appealed from the District Court of New Hampshire, Concord. David and Marilyn Slade own property in the Town of Alton, New Hampshire (Alton or the Town). Industrial Communications and Electronics, Inc. (Industrial Communications), aims to construct a cell phone tower in Alton for two wireless companies. Claiming that only one site was suitable, Industrial Communications filed an application in September 2005 to construct the tower at 486 East Side Drive in Alton. The site is "200 feet or less" from the border of Slades' property and according to the Slades, the tower would "stand[] prominently in the line of sight of the panoramic view . . . of Lake Winnipesaukee and the surrounding mountains" that the Slades currently enjoy from their property. The Slades consider the property's "stunning views" to be its "most recognizable asset," and they "colorably assert" that the construction will cause them economic as well as aesthetic harm by diminishing the property's value.

 

    The Town's zoning ordinance limits cell phone towers to ten feet above the average tree canopy in a particular area; according to calculations by the Town's forester, Industrial Communications' tower would thus be limited to seventy-one feet above ground level. Because Industrial Communications determined that the tower needed to be 120 feet above ground level to be effective, it applied to the Town's Zoning Board of Adjustment (Board) for a variance to construct the tower. Ultimately, the Board denied the variance, finding in its final written decision that Industrial Communications failed to meet the criteria for a variance under New Hampshire law.

 

    When the Federal action was brought, the Town initially defended the case. The Slades intervened with the permission of the court and then stood silent as the Town handled the defense. The Town eventually filed an "Agreement for Entry of Consent Decree" to settle the case, to vacate the Board's decision denying a variance and to permit a one-hundred-foot tower. The district court concluded that the Slades did not raise any claims a federal court was empowered to address and, refusing to consider the Slades' challenge to the Town's authority to act for the Board, entered as a judgment (with a minor modification) the consent decree proposed by the plaintiffs. The Slades now appeal and the issues.

   

    The Appeals Court vacated and remanded the district court decision and said, "Nothing we have said is intended to suggest that a district court, faced with a proposed consent decree and no opposition from anyone, is obliged to conduct hearings and make supported findings. It is one thing to resolve a case by agreement of all parties; it is another when a party to the case is protesting and the court's authority to wipe out the rights of the protesting party depends on findings that the court has not made. Industrial Communications claims be entitled to relief under the Act: all it now needs to do is to prove it."

 

    Access the complete opinion (click here). [*Land, *CA1]

 

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Northwest Environmental Defense Center v. Brown

May 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35266. Appeal from the United States District Court for the District of Oregon. In this case, the Appeals Court notes in an accompanying order that its opinion filed August 17, 2010 [See WIMS 8/18/10], and reported at 617 F.3d 1176, is withdrawn, and is replaced by the current opinion. With the filing of the new opinion, Appeals Court voted unanimously to deny the petitions for a rehearing en banc (i.e. the full panel).

 

    Northwest Environmental Defense Center (NEDC) brings suit against the Oregon State Forester and members of the Oregon Board of Forestry in their official capacities (collectively, State Defendants) and against various timber companies (Timber Defendants, and collectively with State Defendants, Defendants). NEDC contends that Defendants have violated the Clean Water Act (CWA) and its implementing regulations by not obtaining permits from the Environmental Protection Agency (EPA) for stormwater -- largely rainwater -- runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers. NEDC contends that these discharges are from "point sources" within the meaning

of the CWA and that they therefore require permits under the National Pollutant Discharge Elimination System (NPDES).

 

    The district court concluded that the discharges are exempted from the NPDES permitting process by the Silvicultural Rule, 40 C.F.R. § 122.27, promulgated under the CWA to regulate discharges associated with silvicultural activity. The district court did not reach the question whether the discharges are exempted by amendments to the CWA made in 1987. The Appeals Court addressed both questions and conclude that the discharges require NPDES permits.

 

    The Appeals Court said in its opinion, "Until now, EPA has acted on the assumption that NPDES permits are not required for discharges of pollutants from ditches, culverts, and channels that collect stormwater runoff from logging roads. EPA has therefore not had occasion to establish a permitting process for such discharges. But we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to do so effectively and relatively expeditiously." The Appeals Court concluded, "For the foregoing reasons, we conclude that stormwater runoff from logging roads that is collected by and then discharged from a system of ditches, culverts, and channels is a point source discharge for which an NPDES permit is required. We therefore reverse the district court's grant of Defendants' motion to dismiss, and we remand to the district court for further proceedings consistent with this opinion."

 

    Access the complete opinion (click here). [*Water, *Land, *CA9]

 

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New Jersey Environmental Fed. v. Nuclear Regulatory Comm.

May 18: In the U.S. Court of Appeals, Third Circuit, Case No. 09-2567. On Petition for Review from an Order of the Nuclear Regulatory Commission. New Jersey Environmental Federation, Nuclear Information and Resource Service, New Jersey Chapter of the Sierra Club, and others (collectively, Citizens) petition for review of three decisions of the Nuclear Regulatory Commission (the NRC) granting a license renewal for Oyster Creek Nuclear Generating Station (Oyster Creek). Citizens intervened in the license renewal proceedings and offered several contentions challenging the licensee's (Exelon Generation Company, LLC) plans to detect corrosion in a safety structure at Oyster Creek. The Atomic Safety and Licensing Board (the Board) admitted one of these contentions, denied several others, and ultimately determined that the admitted contention lacked merit. The NRC affirmed the Board's decisions and granted the license renewal application. Citizens assert that the Board and the NRC committed various procedural errors in denying their contentions and failed to make the safety findings required to issue a renewed license. The Appeals Court denied the Citizens' petition for review.

 

    In its conclusion, the Appeals Court said, "After a thorough review of the comprehensive decisions of the Board and the NRC, we conclude that the NRC did not abuse its discretion in rejecting Citizens' various challenges to Exelon's license renewal application for Oyster Creek. We commend Citizens for their diligence in bringing these issues to the attention of the Board and the NRC. We also recognize that the Board and the NRC provided hundreds of pages detailing their decision making and gave due consideration to Citizens' concerns. We are confident that the NRC's review of Exelon's application was well-reasoned, and we will not second-guess technical decisions within the realm of its unique expertise. For the foregoing reasons, we will deny the petition for review."

 

    In a note to the decision, the Appeals Court said, "We sought comment from the NRC, Exelon, and Citizens regarding the potential impact of the damage to the Fukushima Daiichi Nuclear Power Station on the propriety of granting a license renewal of Oyster Creek. After considering the submissions from the parties (including the NRC's indication that Oyster Creek's containment is adequate), it appears that the events in Japan do not provide a basis to grant the petition for review in this case."

 

    Access the complete opinion (click here). [*Energy/Nuclear, *CA3]

 

WIMS Environmental News Blogs - On April 20, 2011, WIMS launched its new network of 24/7 Environmental News Blogs. The first phase of the launch includes the following news blogs: (see news release)

·         White House News; Congressional News; Federal Agencies News; Industry News;
Enviro Group News; Air Quality News; Hazardous Waste News; and Transportation News

U.S. v. Coalition For Buzzards Bay

May 17: In the U.S. Court of Appeals, First Circuit, Case Nos. 10-1664 & 10-1668. Appealed from the District of Massachusetts, Boston. The Appeals Court explains, "Buzzards Bay is a brilliant jewel in the diadem of Massachusetts waters. It comprises an inlet flowing landward from the Atlantic Ocean, thirty miles long and up to ten miles wide. Many people regard it as the gateway to Cape Cod. The name 'Buzzards Bay' is a fluke. Folklore has it that early settlers mistook an indigenous flight of ospreys for buzzards, and the rest is history. The bay is not only a spectacularly beautiful natural resource but also a major channel of maritime commerce in southeastern Massachusetts. The combined environmental and commercial significance of the bay has sparked a pitched battle between federal and state sovereigns over the nature of preventative measures needed to safeguard against the risk of oil spills. These appeals mark the latest round in that battle."

 

    The case involves the fact that the State legislature enacted the Massachusetts Oil Spill Prevention Act (MOSPA), as a result of a 2003 oil spill in Buzzards Bay. The Appeals Court said the Federal government saw this as a threat to its power to regulate commercial shipping on Buzzards Bay and sued to abrogate certain provisions of the MOSPA. The suit asserted that the challenged provisions of the State statutory scheme were preempted by Federal laws and regulations.

 

    The overarching question before us involves the Coast Guard's authority to promulgate regulations that preempt state environmental law with respect to tank vessels. The Appeals Court said, ". . .we do not reach the preemption question but, rather, hold that, during the rulemaking process, the Coast Guard failed to comply with its obligations under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347. Inasmuch as this bevue was not harmless, we reverse the district court's entry of summary judgment in favor of the Coast Guard, vacate the injunction against the enforcement of state law issued. . . and remand for further proceedings. . . Accordingly, we reverse the entry of summary judgment, vacate the injunction, and return the case to the district court with instructions to remand it to the Coast Guard for further proceedings consistent with this opinion. We take no view of the overarching preemption issue. . ."

 

    Access the complete opinion (click here). [*Water, *Haz, *CA1]

 

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Griffin Industries, Inc. v. U.S. EPA

May 12: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-6422. Appealed from Eastern District of Kentucky at Covington. The Appeals Court explained that this is an appeal from an award of attorney fees

in the amount of $116,038.03, assessed against U.S. EPA under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(b). The award was premised on the district court's findings that the EPA acted arbitrarily and not in accordance with law in responding to efforts by plaintiff Griffin Industries, Inc. (Griffin) to prevent the EPA's disclosure of Griffin's confidential business information to third parties pursuant to requests under the Freedom of Information Act. On appeal, the EPA contends the district court erred in two respects: by awarding fees based on pre-litigation conduct; and by failing to make the required finding that the EPA acted in bad faith. The Appeals Court agreed with the EPA's latter argument and reverse the award of attorney fees.

 

    In brief background on the case which is important to understanding the decision, Griffin Industries is a Kentucky corporation engaged in the "rendering" business, recycling inedible animal parts for animal feed and biodiesel fuel. Griffin operates in approximately 20 states and has a plant in Dublin, Georgia. In 2003 and 2004, the Dublin facility was subject to investigation and criminal prosecution for violation of the Clean Water Act. The prosecution culminated in the dismissal of several felony charges as Griffin pled guilty in November 2004 to a misdemeanor offense of negligent discharge of waste water and paid a $50,000 fine.

 

    During the course of the investigation, the EPA acquired possession of voluminous records and documents relating to Griffin's business operations. Some of the materials were seized pursuant to search warrants, some were obtained by grand jury subpoenas, some were obtained from state agencies, and some were generated by the EPA. Shortly after the criminal prosecution was closed, the EPA received two requests from third parties under the Freedom of Information Act (FOIA) for disclosure of all documents pertaining to Griffin Industries. It was the EPA's handling of these requests that came to form the basis for the attorney fees award.

 

    The EPA advised Griffin on January 12, 2005 that the requests had been received and would be initially denied pending review of the voluminous materials to determine whether they contained confidential information exempt from the FOIA disclosure requirements. In response, on January 27, Griffin lodged its objection to the release of any information. Over the next three months, the parties exchanged various communications. In short, the EPA determined: (1) that documents in its criminal investigative files obtained pursuant to search warrant or grand jury subpoena were exempt from the FOIA disclosure requirements; (2) that other materials in its investigative files had to be reviewed to determine whether exemptions applied (but denied that Griffin had the right to pre-screen the investigative files before the EPA released what it identified as non-exempt records); and (3) that "publicly available" documents (i.e., documents obtained from court dockets and state agencies) are not privileged or exempt from disclosure.

 

    Griffin objected, maintaining that it was entitled to review the EPA's investigative files before release of any information, and that confidential business information contained in the so-called "publicly available" documents is exempt from disclosure. Although no documents were in fact released to the requesters, Griffin was not satisfied with the EPA's assurances that its interests would be duly protected.

 

    The Appeals Court ruled, ". . .we hold the district court abused its discretion when it granted the motion for attorney fees without making an actual finding of subjective bad faith or improper purpose. Because the relied-on exception [i.e. "bad faith"] to the American Rule [i.e each party bears its own attorney fees] provided in the EAJA has not been shown to be applicable, the order awarding attorney fees to Griffin Industries must be and is reversed." In a footnote, the Appeals Court explained, "This ruling obviates the need to address the EPA's second argument, that the district court erred as a matter of law by awarding fees based on pre-litigation conduct. In Shimman, 744 F.2d at 1230-33, the Sixth Circuit held attorney fees may not be awarded based solely on pre-litigation conduct giving rise to the underlying claim, but left open the possibility of awarding fees based on pre-litigation misconduct "in causing an action to be brought." Because the district court clearly erred by failing to find bad faith misconduct at all, we need not decide whether the EPA's pre-litigation conduct was of the sort that could form the basis for an award of fees."

 

    Access the complete opinion (click here). [*All, *CA6]

Sue Pluck v. BP Oil Pipeline Company

May 12: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-4572. Appealed from the Northern District of Ohio at Akron. In this toxic tort case alleging exposure to benzene, plaintiffs-appellants Sue and Ray Pluck appeal the district court's order granting summary judgment to defendant-appellee BP Oil Pipeline Company (BP). The Plucks challenge the district court's grant of BP's motion in limine to exclude the testimony of their specific-causation expert, Dr. James Dahlgren, as unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). They also argue that the district court should have admitted Dahlgren's supplemental declaration, which contradicted his prior testimony and was untimely filed. Based upon the arguments, the Plucks contend that the district court erred in granting summary judgment to BP. The Appeals Court affirmed the district court in all respects.

 

    The Appeals Court explained further saying, "We have recognized that "[d]istrict courts have broad discretion to exclude untimely disclosed expert-witness testimony," particularly when these reports serve as a "transparent attempt to reopen" the Daubert inquiry after the weaknesses in the  expert's prior testimony have been revealed. Pride v. BIC Corp., 218 F.3d 566, 578–79 (6th Cir. 2000) (internal quotation marks omitted). In this case, the district court did not abuse its discretion in striking Dahlgren's untimely supplemental declaration, in which he attempted to bolster his deficient opinion by employing a new causation

methodology. We also conclude that, because Dahlgren did not provide a specific causation opinion satisfying the requirements of Rule 702, the district court did not err in granting summary judgment on behalf of BP."

 

    Access the complete opinion (click here).  [*Toxics, *Air, *CA6]

Ursack, Inc. v. Sierra Interagency Black Bear Group

May 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17152. Appealed from the United States District Court for the Northern District of California. The Appeals Court explains that the National Park Service and the United States Forest Service require backpackers who visit certain areas in the Sierras to store food in portable bear-resistant containers. Between 2001 and 2007, both the Park Service and the Forest Service required visitors to Yosemite National Park, Sequoia and Kings Canyon National Parks (SEKI), and the Inyo National Forest to use containers that had been tested and approved by the agencies. An informal body known as the Sierra Interagency Black Bear Group (SIBBG) tested privately manufactured bear-resistant containers and made recommendations to the Park and Forest Services regarding which containers to approve.

 

    Plaintiff-appellant Ursack, Incorporated manufactures a bear-resistant container called the Ursack. Between 2001 and 2007, it urged SIBBG to recommend the Ursack for inclusion on the agencies' lists of approved containers. Mostly it was unsuccessful, but in 2007, SIBBG recommended that the agencies grant conditional approval to the Ursack for the 2007 summer season. SIBBG recommended that the agencies withdraw approval if they determined that the container failed three or more times during the season. The agencies accepted the recommendation and granted conditional approval.

 

    At the end of the 2007 season, however, SIBBG determined that the Ursack had failed more than three times, and it recommended that the agencies withdraw conditional approval. The National Park Service accepted this recommendation and withdrew conditional approval, and to this day it refuses to permit backpackers to use the Ursack in the container-only areas of Yosemite and SEKI. The Forest Service, on the other hand, continues to allow backpackers to use the Ursack in Inyo National Forest.

 

    Ursack and three individual users of the Ursack brought the suit pursuant to the Administrative Procedure Act (APA) against SIBBG, the Park Service, the Forest Service, and the superintendents of the relevant national parks and forests, alleging that the decision to withdraw conditional approval of the Ursack was arbitrary and capricious and otherwise not in accordance with law. After reviewing the administrative record, the district court granted summary judgment to the agencies. Ursack and the three individuals appealed. The Appeals Court affirmed the district court decision in favor of the agencies.

 

    Access the complete opinion (click here). [*Land]

SEACC v. State of Alaska

May 4: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35551. Appealed from the United States District Court for the District of Alaska. The issue in this environmental case is whether the district court properly ordered the State of Alaska to consider improving existing ferry service between Juneau and the communities of Haines and Skagway before proceeding with expensive construction of a new ferry terminal and highway through a national forest. In a split decision, the Appeals Court held that the district court was correct under settled environmental law in its judgment in favor of Southeast Alaska Conservation Council and five other groups (collectively, SEACC) in their suit against the Federal Highway Administration (FHWA), the Department of Transportation, the Forest Service, the Department of Agriculture, and individual federal officials. 

 

    Intervenor State of Alaska appeals the district court's decision and argues the district court erred in holding that the Environmental Impact Statement (EIS) issued by the FHWA for the Juneau Access Improvements Project violated the National Environmental Policy Act (NEPA) by failing to consider as a project alternative any plan that would improve existing ferry services in Lynn Canal, Alaska, without the construction of new roads, ferries, or terminals. The district court vacated the FHWA's Record of Decision (ROD), which approved Alaska's preferred alternative for the project, and enjoined all construction and activities that depended on the issuance of a valid EIS, until one was prepared.

 

    The majority Appeals Court said the FHWA EIS "contains no analysis of ferry service to other areas, or of how the assignment of additional vessels to Lynn Canal would affect service elsewhere. Therefore, it does not provide any reasoned support for the FHWA's position that reassigning vessels was not a reasonable alternative that required detailed consideration in the EIS." Further, the majority said, "The district court therefore properly concluded that it was arbitrary for the FHWA to refuse to consider reassigning vessels as a project alternative on the basis that it would increase costs and reduce services elsewhere when the chosen project alternative could have been rejected for the same reason. By failing to examine a viable and reasonable alternative to the proposed project, and by not providing an adequate justification for its omission, the EIS issued by the FHWA violated NEPA."

 

    The dissent Justice indicated, "The majority holds that the final environmental impact statement prepared by the State of Alaska and the Federal Highway Administration violates the National Environmental Policy Act. . . by failing to consider certain alternatives to the State's proposed plan to improve surface transportation to Juneau, Alaska. I respectfully dissent. . . Accordingly, the question in this case is not whether the final EIS prefers the wrong alternative, but rather whether it considers a reasonable range of alternatives."

 

    He argues that, "The majority holds that the final EIS fails to consider certain alternatives for improving surface transportation to

Juneau. According to the majority, the final EIS does not consider the possibility of improving ferry service by maximizing the use of existing infrastructure. . .In my view, however, the final EIS includes just such an alternative: the No Action Alternative. . ."

 

    Access the complete opinion and dissent (click here). [*Transport]

 

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USA v. George A. Whiting Paper Company

May 4: In the U.S. Court of Appeals, Seventh Circuit, Case No. 10-2480. Appeal from the United States District Court for the Eastern District of Wisconsin. In 2009, the United States and the State of Wisconsin (the Governments) filed suit in Federal district court against eleven of the potentially responsible parties (PRPs) in an environmental cleanup, seeking response costs under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA). Shortly thereafter, the Governments filed notice of a de minimis consent decree pursuant to CERCLA § 122(g). Eventually, the Governments moved for settlement. Appleton Papers Inc. and NCR Corporation intervened.

 

    The district court granted the settlement motion over the intervenors' opposition. Later, the Governments moved for a de minimis settlement with a twelfth defendant, and the district court granted this motion. Appleton and NCR appealed the grant of both settlement motions. The Appeals Court affirmed the district court decision.

 

    By way of background, the case involves the Fox River in Wisconsin which is heavily contaminated with Polychlorinated biphenyls (PCBs). Appleton and NCR are responsible for much of the PCBs. They contributed significant amounts of Aroclor 1242, the most prevalent PCB in Fox River. The river also contains other PCBs, including Aroclor 1254 and Aroclor 1260. Appleton, NCR, and a few other PRPs are currently paying to clean up Fox River in compliance with a 2007 U.S. EPA order. Appleton and NCR are seeking contribution, in a separate suit, from many other PRPs.

 

    On one of the major issues in the case, i.e. the "rational basis" of the settlement, the Appeals Court said, "The district court concluded the consent decrees were substantively fair. Appleton and NCR argue that this conclusion has no rational basis in the record. A consent decree is substantively fair if its terms are based on comparative fault. . . The calculation of comparative

fault 'should be upheld unless it is arbitrary, capricious, and devoid of a rational basis.' Cannons Eng'g, 899 F.2d at 87 ('[W]hat constitutes the best measure of comparative fault . . . should be left largely to the EPA's expertise.')."

 

    The Appeals Court said, "Rarely does an appellate court conclude the district court had no factual basis to approve a consent decree. Appleton and NCR can point to only one such holding. . . We need not decide whether an unsupported estimate would be a sufficient factual basis to affirm a consent decree -- the Governments' estimate here has adequate support in the record." Other legal issues addressed by the Appeals Court in the opinion included: Consideration of non-1242 Aroclors; Unresolved Issue of Divisibility; Insufficient Discovery; and Improper Consideration of Equitable Factors.

 

    Access the complete opinion (click here). [*Remed]

 

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Jerry Adkins v. Kenneth Will (VIM Recycling Inc)

May 3: In the U.S. Court of Appeals, Seventh Circuit, Case No. 10-2237. Appealed from the United States District Court for the Northern District of Indiana, South Bend Division. The Appeals Court explains that the appeal presents questions regarding the citizen-suit provisions in the federal Resource Conservation and Recovery Act (RCRA), including when a narrower government enforcement lawsuit may preclude a broader citizen suit, and how the citizen-suit provisions interact with the federalism doctrines of Colorado River and Burford abstention. The district court in this case relied on statutory provisions and the abstention doctrines to dismiss the plaintiffs' citizen suit under RCRA. In a partially split decision, the Appeals Court reversed and remand which allows the plaintiffs to pursue their citizen suit. One justice indicated concurrence in part and dissented in part.

 

    The complicated legal action involves the relationships among three lawsuits: two state court actions filed by a state environmental agency and the Federal citizen suit. The majority concluded, "The plaintiffs' RCRA citizen suit should go forward, except as to the violation claims concerning 'C' grade waste that were part of the first IDEM [Indiana Department of Environmental Management] lawsuit against defendant VIM. In all other respects, the plaintiffs met the statutory requirements of RCRA. Because the plaintiffs satisfied the statutory requirements for bringing their citizen suit, abstention doctrines should not have been used to block the plaintiffs from pursuing the avenues that Congress gave them in RCRA. The district court's judgment dismissing the case is reversed and the action is remanded for further proceedings."

 

    Earlier in the decision the majority clarified that, "If IDEM should achieve comprehensive relief in its state court lawsuits, the federal judge will be entitled to press the citizen-plaintiffs as to what more they hope to accomplish in this suit. We emphasize, however, that the federal court in this case has a duty to press forward here. Congress has extended to these plaintiffs the right to pursue relief in a federal district court. The plaintiffs are not required to rely exclusively on the state agency in lawsuits in which they may only watch from the sidelines. The goal of RCRA is 'the prompt abatement of imminent and substantial endangerments,' and the district court has a duty not to allow progress toward that goal to be derailed or slowed because of possible delays in state proceedings."

 

    The dissenting Justice said, "I join the majority opinion on several issues, but I cannot agree with the majority's discussion and conclusion regarding abstention under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). I therefore must respectfully dissent." The dissenting Justice indicated, "I concur with my colleagues on several issues." Then proceeded to outline at least four major areas of agreement and said, "Where I part company from my colleagues is with respect to their application of the Colorado River abstention doctrine. Even here, my disagreement is not total. Nevertheless, I view the position taken by my colleagues to be an overly rigid one, which, under the circumstances of this case, produces a result contrary to the overall intent of RCRA and a procedural straitjacket for district courts in future cases."

    Access the complete opinion and dissent (click here). [*Haz]

Alcoa Power Generating Inc. v. FERC

May 3: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1066. On Petition for Review of Orders of the Federal Energy Regulatory Commission (FERC). The Alcoa Power Generating Company petitions for review of two orders of FERC with respect to the relicensing of its Yadkin Project facilities in North Carolina. A precondition of licensing is receipt of a State certification that any discharges into navigable waters will comply with sections 301-03 and 306-07 of the Clean Water Act. Section 401(a)(1) of the Clean Water Act provides that State certification 'shall be waived with respect to such Federal application' if the State certifying agency 'fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request . . ..'

 

    When a State administrative law judge stayed pending appeal the water certification issued by the State agency, Alcoa Power petitioned the Commission for a declaratory order that the certifying agency had waived its authority by not issuing a certification that was effective and complete within one year. The Commission denied the petition, ruling there was no waiver because the State had 'act[ed] on' Alcoa Power's application within one year of its filing. Alcoa Power contends that the Commission misinterpreted the law and the facts and that the State violated the time limit in Section 401(a)(1) by linking the effectiveness of the certification to satisfaction of a bond requirement after the expiration of the one-year period, thereby waiving its right to issue a certification for the project. The Commission maintains that the petition for review is not ripe because, in accordance with its policy, it has not been able to act on Alcoa Power's application for licensure in view of on-going State administrative review and stay of the certification.

 

    The Appeals Court said, "We hold that the petition is ripe, because if the certification was waived, then the pendency of the State proceeding is no bar to the Commission acting on Alcoa Power's licensing application. We agree with the Commission's interpretation of Section 401 in ruling that there was no waiver by the State and, therefore, we deny the petition for review." The Appeals Court explains, "In sum, under Section 401, the State, acting through its Division of Water Quality, timely issued a water quality certification that complied with the requirements of Section 401. The Commission on rehearing made clear that it was free to commence its licensing proceeding but for its policy to stay such proceedings pending conclusion of the State proceeding, which policy Alcoa Power does not challenge. Because the "effective" clause in the bond condition of the 2009 Certification did not operate to block or delay the federal licensing proceeding, and it did not contravene Section 401(a)(1)'s waiver provision, much less the Commission's regulations, Alcoa Power's objections to the substantive content of the 2009 Certification is a matter of State law that is properly raised in the State proceeding, as Alcoa Power has done.

 

    "Alcoa Power's additional objection that the Commission failed to engage in reasoned decision-making by ignoring or misapprehending certain material facts fails. The allegedly ignored facts are that (i) the bond condition as written in the 2009 Certification is objectively impossible to satisfy, and (ii) the Division of Water Quality had ample time to request satisfaction of the bond condition within the one-year statutory period in view of the extended procedural history of Alcoa Power's requests for certification. These assertions became irrelevant to the Commission's waiver analysis once it concluded that neither Section 401 nor its own regulation required it to wait until the bond condition was satisfied before proceeding with Alcoa Power's license application. The Commission therefore had no reason to analyze these issues in greater depth."

 

    Access the complete opinion (click here). [Energy, Water]

High Court Decides Montana v. Wyoming Water Case

May 2: In the U.S. Supreme Court, Case No. 137, Original. As explained in the High Court's summary, the case arises out of a dispute between Montana and Wyoming over the Yellowstone River Compact [See WIMS 1/12/11]. Montana alleges that Wyoming has breached Article V(A) of the Compact by allowing its pre-1950 water appropriators to increase their net water consumption by improving the efficiency of their irrigation systems. The new systems, Montana alleges, employ sprinklers that reduce the amount of wastewater returned to the river, thus depriving Montana's downstream pre-1950 appropriators of water to which they are entitled. A Special Master filed a First Interim Report determining, as relevant here, that Montana's allegation fails to state a claim because more efficient irrigation systems are permissible under the Compact so long as the conserved water is used to irrigate the same acreage watered in 1950. The Supreme Court agreed with the Special Master and overruled Montana's exception to that conclusion. 

 

    Justice Thomas delivered the opinion in which Justices Roberts Kennedy, Ginsburg, Breyer, Alito and Sotomayor all joined. Justice Scalia filed a dissenting opinion and Justice Kagan took no part in the consideration or decision of the case. The majority concluded, "We conclude that the plain terms of the Compact protect ordinary '[a]ppropriative rights to the beneficial uses of [water] . . . existing in each signatory State as of January 1, 1950.' Art. V(A), ibid. And the best evidence we have shows that the doctrine of appropriation in Wyoming and Montana allows appropriators to improve the efficiency of their irrigation systems, even to the detriment of downstream appropriators. Montana's allegation that Wyoming has breached Article V(A) of the Compact by allowing its pre-1950 water users to increase their irrigation efficiency thus fails to state a claim. Accordingly, Montana's first exception to the Special Master's First Interim Report is overruled.

 

    As indicated in the docket for the case, the questions presented by Montana's exception are: 1. Whether the Special Master correctly concluded that Montana's increased-efficiency allegation does not state a claim for breach of the Compact; and, 2. Whether the Special Master correctly concluded that, to show that Wyoming has breached the Compact and caused Montana injury, Montana must show that its water users lack an intrastate remedy under Montana law.

 

    In his solo dissent Justice Scalia said, "Thanks to improved irrigation techniques, Wyoming's farmers and cattlemen appear to consume more of the water they divert from the Yellowstone River and its tributaries today than they did 60 years ago—that is to say, less of the diverted water ultimately finds its way back into the Yellowstone. The Court interprets the Yellowstone River Compact (Compact), see Act of Oct. 30,1951, ch. 629, 65 Stat. 663, to grant those Wyomans* the right to increase their consumption so long as they do not increase the volume of water they diverted beyond pre1950 levels. Thus, it holds, Montana cannot complain that the increased consumption interferes with its residents' pre-1950 appropriative water rights. I disagree because the Court's analysis substitutes its none-too-confident reading of the common law, see ante, at 7–8, and n. 5, for the Compact's definition of 'beneficial use.'" *Justice Scalia noted regarding his terminology "Wyomans" that, "The dictionary-approved term is "Wyomingite," which is also the name of a type of lava, see Webster's New International Dictionary 2961 (2d ed. 1957). I believe the people of Wyoming deserve better."   

 

    Access the complete opinion and dissent (click here). Access links to the Special Master's report, briefs and the argument transcript (click here). Access the Supreme Court docket (click here). [*Water]

 

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