Team Enterprises, LLC v. Western Investment Real Estate Trust

Jul 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-16916. Appealed from the United States District Court for the Eastern District of California. The Appeals Court explains that, "We must decide, among other things, whether the manufacturer of a machine used in the dry cleaning process may be held liable for contribution to environmental cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act." Plaintiff-Appellant Team Enterprises, LLC (Team) has, since 1980, leased space in a shopping center in Modesto, California, where it operates a dry cleaning store. From 1980 to 2004, Team used perchlorethylene (PCE), a volatile organic compound defined as a "hazardous substance" by the State of California, in its dry cleaning operation. Team's dry cleaning machines used PCE as part of the cleaning process, thereby generating wastewater containing the chemical.

 

    Team used Puritan Rescue 800 filter-and-still combination equipment (Rescue 800), designed and manufactured by Defendant-Appellee R.R. Street & Co., Inc. (Street), to filter and to recycle the PCE-laden wastewater for reuse. The Rescue 800 returned distilled PCE to Team's dry cleaning machines and deposited the resulting wastewater into an open bucket. Once in the bucket, some of the remaining PCE would separate from the water, allowing Team to recapture "pure" (or visible amounts of) PCE for reuse. The remaining wastewater contained dissolved -- and invisible -- PCE. Team disposed of this wastewater by pouring it down the sewer drain. Some of the PCE then leaked into the soil, and the California Regional Water Quality Control Board deemed the affected property in need of cleanup, which Team duly performed at its own expense.

 

    Team sued Street and several other defendants in the Eastern District of California, for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Team also alleged various state-law causes of action, including claims for trespass and nuisance. The district court granted summary judgment to Street on all claims and entered final judgment as to it. Team appealed the district court's grant of summary judgment as to Team's CERCLA, trespass, and nuisance claims. The Appeals Court affirmed the district court decision.

 

    On the CERCLA claim, the Appeals Court said, "Team does not point to any evidence in the record that Street hooked up the Rescue 800 to the sewer, that Street continued to own the Rescue 800 used in Team's store, that Street owned or possessed the PCE that Team disposed of, that Street made dumping wastewater down the drain a condition of its sales contract with Team, or that Street employees poured wastewater down the drain at Team's stores. In short, there is a dearth of evidence indicating that Street exercised actual control over Team's disposal. Accordingly, we conclude that Team has not presented evidence giving rise to a genuine dispute as to any material fact with respect to its CERCLA claim."

 

    The Appeals Court ruled in part, "Although Team presented evidence that Street instructed it to pour wastewater containing PCE into a bucket, there is no evidence in the record that Street 'instructed the dry cleaners to set up their equipment to discharge solvent-containing wastewater into the drains and sewers,' or that Street 'gave dry cleaners instructions to dispose of spilled [PCE] on or in the ground.' . . . And despite Team's protestations that once wastewater from the Rescue 800 had been poured into a bucket there was no alternative but to pour it down the drain, Team's alleged lack of alternatives do not indicate that Street engaged in the "kinds of affirmative acts or instructions" that would 'support a finding that [Street] assisted in creating a nuisance.'"

 

    The Appeals Court concludes, ". . .it is clear from the record that the Rescue 800 is not a disposal system. The Rescue 800 was not designed to route wastewater from the dry cleaning machines to the sewer; it was designed to filter and to recycle used PCE that otherwise would have been lost. We therefore agree with the district court's conclusion that Team failed to present evidence giving rise to a genuine dispute as to any material fact with respect to its nuisance claim."

 

    On the trespass issue the Appeals Court rules, "Team, however, did not present any evidence that either the Rescue 800 or the PCE entered the property without Team's consent. Moreover, Team's employees contaminated the soil by pouring the wastewater down the drain, and 'one cannot commit an actionable interference with one's own possessory right.' Capogeannis, 15 Cal. Rptr. 2d at 799. Because Team's contamination of the land was not a trespass against itself, Street may not be held liable for assisting in a trespass."

 

    In a separate concurring opinion, one Justice indicated, "I am pleased to join the majority's well-reasoned and insightful opinion. I write separately to explain my view that CERCLA, by its plain language, should not apply to this case. . . In this case, the undisputed evidence reveals that Street did not, at any point, own or possess the relevant PCE. Accordingly, Street is entitled to summary judgment on Appellant's CERCLA claim."

 

    Access the complete opinion (click here). [#Remed, #CA9]

 

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Citizens For Balanced Use v. Erickson

Jul 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35823. As explained by the Appeals Court, three conservation groups, Montana Wilderness Association, Greater Yellowstone Coalition, and The Wilderness Society (collectively, Applicants) appeal from the denial of their motion to intervene on the side of the defendants in an action brought by Citizens for Balanced Use (CBU) against Mary Erickson, in her official capacity as Supervisor of the Gallatin National Forest, and the United States Forest Service (Forest Service).

 

    In the underlying action, CBU challenged an interim order issued by the Forest Service in response to an adverse decision in prior litigation brought by Applicants. That interim order, which is the subject of this litigation, restricted motorized and mechanized vehicle use in a section of the Gallatin National Forest. CBU alleged that the challenged interim order violated the Montana Wilderness Study Act of 1977 (MWSA) and the Administrative Procedure Act (APA) because it unduly restricted the use or possession of snowmobiles, tracked ATVs, and other over-snow vehicles.

 

    The Appeals Court said, "Because we conclude that Applicants satisfied the four requirements for intervention as of right under Federal Rule of Civil Procedure 24(a), we reverse and remand with instructions that the district court allow Applicants to intervene and become parties to the ongoing litigation, and that the district court take reasonable steps to put Applicants on equal footing with the original parties so as to ensure their opportunity for participation."

 

    The Appeals Court concluded, "Applicants showed, in a timely-filed motion, that they have a significant protectable interest in this action, that the disposition may impair their ability to protect that interest, and that the Forest Service may not adequately represent their interest. Applicants are entitled to intervene under Rule 24(a). We reverse and remand with instructions that Applicants be made parties to the litigation and that the district court promptly 'take all reasonable steps to put the new parties on equal footing with the original parties.' California ex rel. Lockyer, 450 F.3d at 445. Because the district court may soon rule on dispositive motions that could affect Applicants' interests, time is of the essence; the clerk is instructed to issue the mandate forthwith."

 

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

 

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San Juan Citizens Alliance vs. Stiles (USDA & DOI)

Jul 21: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1259. Appealed from the U.S. District Court for the District of Colorado. The appeal concerns the Northern San Juan Basin Coal Bed Methane project (the Project), which has been approved by the United States Forest Service (the Forest Service) and the Bureau of Land Management (the BLM). The Project contemplates the construction of numerous gas wells within the San Juan National Forest (the Forest) and on other federal lands. San Juan Citizens Alliance and four other environmental advocacy groups (collectively, SJCA) filed suit in the United States District Court for the District of Colorado against the Forest Service, the BLM, and four government officials (collectively, the Federal Defendants) for alleged violations of the National Forest Management Act (NFMA), and the National Environmental Policy Act (NEPA).

 

    The suit contends that the 2007 record of decision (ROD) approving the Project was unlawful. Several companies holding valid leases in the area and interested in drilling for gas (the Lessees) were permitted to intervene as additional defendants. The district court entered judgment in favor of the defendants. SJCA argues on appeal that the Project violates the NFMA because it is inconsistent with provisions of the San Juan National Forest Plan (the Forest Plan) protecting old-growth ponderosa pine forests, wildlife habitat, and riparian areas, and that the ROD approved individual wells under the Project that violate the Forest Plan's standards and guidelines protecting riparian areas.

 

    It further argues that the Federal Defendants violated NEPA in two respects when they prepared an environmental impact statement (EIS) assessing the Project's environmental consequences: (1) the EIS did not adequately analyze the Project's

effects on the Forest's riparian areas, offering only perfunctory references to mitigation measures without evaluating how those measures could correct Forest Plan violations; and (2) the Federal Defendants did not include several nearby national parks and wilderness areas in its cumulative-impact analysis of the Project's effects on air quality and visibility.

 

    The Appeals Court affirmed in part and remanded in part saying the ripeness doctrine precludes us from addressing the merits of any of SJCA's challenges to the Project under the NFMA. A claim that the Project is inconsistent with the Forest Plan is not ripe until that inconsistency leads to the improper approval of a specific well (or associated construction). . . Because SJCA's NFMA claims that the Project is inconsistent with the Forest Plan are not ripe, we remand to the district court to vacate its judgment on those claims and to dismiss them without prejudice.

 

    The Appeals Court also ruled, "As for SJCA's NEPA claims, we reject them on the merits. First, the EIS's discussion of riparian-area mitigation measures is more than adequate to satisfy NEPA. An EIS assessing environmental consequences at the programmatic stage of a multi-step development project can properly discuss mitigation measures in general terms when the specifics of possible well locations are still uncertain, leaving for later a more complete analysis of environmental consequences associated with permitting a particular well site. Second, the Federal Defendants' decision on which public lands to include in the cumulative-impact analysis of air quality was a reasonable choice involving technical and scientific matters within their areas of expertise."

 

    Access the complete opinion (click here). [#Energy/NatGas, #Land, #CA10]

 

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Conservation Force v. Salazar

Jul 22: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-15306. Appealed from the United States District Court for the Northern District of California. This case involves the seizure and administrative forfeiture of two leopard trophies by the United States Fish and Wildlife Service (FWS) from two hunters, Patricio Miguel Madero Blasquez and Colin Crook (plaintiffs), who attempted to import the leopard trophies from African countries without proper export permits. Plaintiffs and Conservation Force, a nonprofit entity, filed suit against Federal defendants Ken Salazar (Secretary of the Department of the Interior), Rowan Gould (Director of FWS), Daniel Shillito (Regional Solicitor for the Department of the Interior), Carolyn Lown (Regional Assistant Solicitor for the Department of the Interior), and the FWS asserting that the administrative forfeiture of their leopard trophies violated the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), the Eighth Amendment Excessive Fines Clause, and the Due Process Clause. The Appeals Court affirmed the district court's dismissal of plaintiffs' CAFRA and constitutional claims.

 

    The Appeals Court explained further, "In this case, the district court properly held that plaintiffs' CAFRA claim is barred from judicial review. Plaintiffs received proper notice of the proposed forfeitures. Plaintiffs chose to pursue an administrative path and filed petitions for remission and petitions for supplemental remission. These petitions were reviewed by the Office of the Solicitor and denied. Because plaintiffs chose to pursue administrative remedies, they waived the opportunity for judicial forfeiture proceedings. See 50 C.F.R. § 12.24(a) (expressly providing that remedies are exclusive); Malladi Drugs, 552 F.3d at 889 (holding that the remedies are exclusive); Cole v. United States (In re $844,520), 136 F.3d 581, 582 (8th Cir. 1998) (per curiam) (holding that the remedies are exclusive). Accordingly, as it properly held, the district court properly dismissed the action."

 

    Access the complete opinion (click here). [#Wildlife, #CA9]

Lake Carriers' Association v. U.S. EPA

Jul 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1001, consolidated with 09-1010, 09-1076, 09-1115. On Petitions for Review of a Final Action of U.S. EPA. Trade associations representing commercial ship owners and operators petition for review of a nationwide permit issued by U.S. EPA for the discharge of pollutants incidental to the normal operation of vessels. The petitioners raise a number of procedural challenges, all related to EPA's decision to incorporate into the permit, conditions that states submitted to protect their own water quality. The Appeals Court rules, "Because we find that the petitioners have not shown that the additional procedures they request would have had any effect on the final permit, we deny the petition for review."

 

    The Appeals Court explains the background saying Shortly after the CWA was enacted, EPA promulgated a regulation exempting incidental vessel discharges from the permitting (and therefore the certification) requirements of the Act. Exempted discharges included "sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel." 40 C.F.R. § 122.3(a). The regulation was in force for more than thirty years. Then, in 2008, the Ninth Circuit affirmed a district court decision vacating the regulation, finding that EPA lacked authority to exempt incidental vessel discharges. Northwest Envtl. Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008) [See WIMS 7/24/08]. After a stay to allow EPA time to implement a means of issuing permits for vessel discharges, the regulation was finally vacated on

February 6, 2009.

 

    In response to the Ninth Circuit's decision, EPA developed a general permit, pursuant to section 402 of the CWA, to cover the incidental vessel discharges previously exempted by the regulation. See Final National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel, 73 Fed. Reg. 79,473 (Dec. 29, 2008) [See WIMS 12/22/08]. The agency estimated that the Vessel General Permit (VGP) would cover discharges from approximately 61,000 domestic-flagged commercial vessels and 8,000 foreign-flagged vessels. Id. at 79,481. And unlike the majority of permits issued under section 402, which cover discharges originating in only a single state, the VGP would cover discharges in waterways throughout the United States.

 

    On December [29], 2008, EPA's final VGP became effective. Final NPDES General Permit, 73 Fed. Reg. at 79,47[3]. Part VI of the permit, which was not included in the draft VGP, is composed of approximately 100 state certification conditions. U.S. EPA, VESSEL GENERAL PERMIT (VGP) (2008), at 62-104 (J.A. 825-67). Vessels covered by the permit are required to adhere to the general provisions of the VGP with respect to all discharges, and are further required to adhere to any Part VI certification condition imposed by a state into the waters of which the vessel is discharging pollutants.

 

    In 2009, Lake Carriers' Association, Canadian Shipowners Association, and American Waterways Operators filed petitions for review of the final VGP. The petitions were consolidated into the single suit now before us. The trade associations raise three challenges. First, they contend that EPA erred in failing to provide notice and an opportunity for comment on the final VGP, which contained the state certification conditions. Second, they charge that it was arbitrary and capricious for EPA to issue the permit without considering the possible ill-effects of the state certification conditions. Finally, they allege that EPA failed to consider the costs of compliance with state conditions in assessing the impact of the permit on small businesses, as required by the Regulatory Flexibility Act (RFA), 5 U.S.C. § 601 et seq.

 

    The Appeals Court notes in part, ". . .we note that EPA's resolution of this matter does not leave the petitioners without recourse. If they believe that the certification conditions imposed by any particular state pose an inordinate burden on their operations, they may challenge those conditions in that state's courts. . . If they believe that a particular state's law imposes an unconstitutional burden on interstate commerce, they may challenge that law in federal (or state) court. See Am. Trucking Ass'n, 600 F.3d at 628 n.1. And if neither of these avenues proves adequate, they are free to ask Congress to amend the CWA, perhaps by reimposing the exemption for incidental vessel discharges."

 

    The Appeals Court concludes in part, "In sum, given the case law and the arguments that EPA had before it, the agency correctly concluded that it did 'not have the ability to amend or reject conditions in a [state's] CWA 401 certification.' EPA Response to Comments, at 14-11 to 14-12 (J.A. 1062-63) (citing Am. Rivers, Inc. v. FERC, 129 F.3d 99, 107, 110-11 (2d Cir. 1997)). Under those circumstances, providing notice and an opportunity for comment on the state certifications would have served no purpose, and we decline to remand to require EPA to do a futile thing. . . The petitioners' remaining arguments fail for the same reason that their notice-and-comment argument fails. . ."

 

    Access the complete opinion (click here). Access extensive information on the Final Vessel General Permit from U.S. EPA (click here).  [#Water, #GLakes, #CADC]

 

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Western Watersheds Project, et al v. BLM

Jul 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-15799. Appealed from the United States District Court for the District of Nevada. In a brief, unpublished opinion, the Appeals Court affirmed the district court denial of a temporary restraining order/preliminary injunction and said, "Plaintiffs appeal the district court's order denying their motion for a preliminary injunction. . . We agree with the reasons thoughtfully expressed by the district court and find no abuse of discretion. . . Reviewing for abuse of discretion, we affirm."

 

    The case concerns approval of a wind energy facility in Spring Valley, Nevada. Plaintiffs are two environmental organizations -- Western Watersheds Project and Center for Biological Diversity. Defendant is the Bureau of Land Management (BLM). Intervening defendant is Spring Valley Wind, LLC, the energy company developing the wind facility at issue. Plaintiffs filed a motion for a temporary restraining order and/or preliminary injunction in the district court seeking to bar the BLM from issuing a Notice to Proceed or otherwise authorizing construction and site clearing for the Spring Valley Wind Energy Facility which was set to commence on March 28, 2011.

 

    Plaintiffs claim the BLM conducted a "fast track" approval of the Spring Valley Wind Facility so that the project could take advantage of federal financing under the American Recovery and Reinvestment Act, which required project approval by the end of 2010. It is alleged this approval process was pushed by high-level BLM officials and Spring Valley Wind, LLC proponents in violation of NEPA. Specifically, plaintiffs claim: (1) there are significant and unknown environmental impacts to the project site that warrant an EIS, not just an EA; (2) the BLM's decision provided no detailed statement of reasons establishing that the project's impacts are insignificant; (3) the BLM failed to take a "hard look" at the environmental impacts without adequate scientific data, including impacts to bats and sage-grouse, and the cumulative environmental impacts of the project; (4) the decision did not properly consider or address public comments and opposing views; and (5) the final EA failed to consider an adequate range of alternative courses of action.

 

    The district court ruled that, "Having fully considered the administrative record and the arguments of the parties, and having weighed all relevant factors necessary for issuing a preliminary injunction -- the likelihood of success on the merits, the likelihood of irreparable harm, the balance of equities, and the public interest -- the court finds that the plaintiffs have failed to carry their burden of showing that a preliminary injunction should issue at this time. Plaintiffs' motion for a temporary restraining order/preliminary injunction is denied."

 

    One of the Appeals Court justices wrote separately saying, "I concur in the result. I write separately, however, to express my concern about the district court's conclusion that Plaintiffs are unlikely to succeed on the merits. . . agree with the majority that the district court did not abuse its discretion by determining that the project's construction is unlikely to cause irreparable harm to bats or sage grouse. Nor did the district court err when balancing the equities in Defendants' favor or when considering the public's interest in the project. In my view, however, Plaintiffs are likely to succeed on the merits because the BLM failed adequately to consider the potentially significant cumulative impacts of the project and other reasonably foreseeable future actions. . ."

 

    Access the unpublished opinion and separate concurrence and concern opinion (click here). Access links to the district court decision and additional briefs and documents from the Advocates for the West website who represented the Plaintiffs (click here). [*Energy/Wind, *CA9]

Brod v. Omya

Jul 18: In the U.S. Court of Appeals, Second Circuit, Case No. 09-4551. Appealed from the United States District Court for the District of Vermont. Appealed from: (1) The district court vacated, after a remedy hearing, so much of a summary judgment as held defendants liable for creating an "imminent and substantial endangerment" as set forth in the Resource Conservation and Recovery Act of 1976 (RCRA) due to the presence of aminoethylethanolamine (AEEA) in defendants' waste; and, (2) so much of a summary judgment as granted dismissal of plaintiffs' open dumping claim brought under the provisions of RCRA; the District Court (i) determined that, based on, inter alia, subsequent testing and expert testimony presented at the remedy hearing, the potential harm posed by AEEA did not in fact constitute a "serious endangerment" and thus no remedy was warranted; (ii) granted defendants' motion to dismiss all claims related to AEEA because plaintiffs had failed to satisfy the citizen suit notice requirements of RCRA; and (iii) found that arsenic was not present at a level high enough to subject defendants to liability under RCRA. The Appeals Court affirmed the district court decision.

 

    The District Court (1) determined that, based on, inter alia, subsequent testing and expert testimony presented at the remedy hearing, the potential harm posed by AEEA did not in fact constitute a "serious endangerment," and thus no remedy was warranted; and (2) granted Omya, Inc. and Omya Industries, Inc. (collectively, Omya) motion to dismiss all claims related to AEEA because plaintiffs had failed to satisfy the citizen suit notice requirements of RCRA.

 

    The District Court dismissed Residents Concerned about Omya (collectively, the plaintiffs or RCO), open dumping claim, the court having found that arsenic was not present at a level high enough to subject Omya to liability under RCRA. In its complaint, which raised two claims, RCO alleged that Omya's waste disposal practices violated RCRA. RCO first claimed that Omya was creating an imminent and substantial endangerment to human health and the environment by permitting its waste to seep into the groundwater, thereby contaminating hydrologically-connected water sources with AEEA. RCO also claimed that Omya was operating an unlawful open dump because Omya's solid waste allegedly contained an amount of arsenic above the permitted level established by U.S. EPA.

 

    The Appeals Court concluded, "Because we determine that, in a case of this nature, a proper NOI [notice of intent to sue] must specify each alleged containment, we need not reach RCO's other claims. In accordance with the foregoing, the judgment is affirmed." However, the Appeals court also said, ". . .the plaintiffs' failure to specify arsenic in their NOI supports the District Court's dismissal of the endangerment and the open dumping claims. Of course, the dismissal of this action will not prohibit RCO from again giving notice to Omya and filing its suit in compliance with RCRA's notice and delay requirements upon future discovery of potential violations of the federal environmental laws."

 

    Access the complete opinion (click here). [*Solid, *Haz, #CA2]

Myers v. U.S.

Jul 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-56092. Appeal from the United States District Court for the Southern District of California. Plaintiffs seek damages from the United States for injuries to a child allegedly caused by exposure to the toxic heavy metal thallium from soil dumped into a landfill adjacent to the child's residence and school. The child, by her guardian ad litem, appeals a decision of the district court finding that the United States acted "reasonably" and did not breach any duty in conducting the soil remediation project. The district court also found that it did not have subject matter jurisdiction, because the "discretionary function" exception to tort liability of the United States applies in this case. In a partially split decision, the Appeals Court reversed and remanded for further proceedings.

 

    The majority opinion concluded, "Because the district court erred in holding that the "discretionary function" exception barred the Navy's liability on and the court's subject matter jurisdiction over Myers's claim, and clearly erred in finding that the Navy acted "reasonably" and not in breach of its duty in conducting the remediation of contaminated soil in the project at issue here, we reverse and remand this action for further proceedings. Nevertheless, we find it unnecessary to reassign the case to a different judge on remand."

 

    In a partial concurrence and partial dissent on Justice indicated, "I concur in that portion of the majority opinion concluding that additional factfinding is warranted. However, I would remand the case to the district court for that additional factfinding rather than direct a verdict for Plaintiffs as the majority has done. I also agree that there is no need to assign the case to a different judge on remand. . . I respectfully dissent from the balance of the majority opinion.

 

    Access the complete opinion and partial dissent (click here). [*Toxics, #CA9]

Sierra Club v. Southwestern Electric Power Co

Jul 14: In the U.S. Court of Appeals, Eighth Circuit, Case Nos: 10-3452 & 10-3456. Appealed from the U.S. District Court for the Western District of Arkansas - Texarkana. The Sierra Club and several related parties brought the suit against the U.S. Army Corps of Engineers (the Corps) in February 2010, seeking to set aside a Clean Water Act permit (the § 404 permit) the Corps had issued to the Southwestern Electric Power Company (SWEPCO) which planned to construct a new power plant.

 

    After SWEPCO intervened as a defendant, the Sierra Club moved to enjoin construction of the plant. The Hempstead County Hunting Club (Hunting Club) filed a similar action against SWEPCO, the Corps, and the U.S. Fish and Wildlife Service (FWS) in July 2010. The plaintiffs alleged that SWEPCO, the Corps, and the FWS failed to comply with the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Endangered Species Act (ESA), and Arkansas state law.

 

    The district court granted only part of the injunctive relief requested in the plaintiffs' motions for a preliminary injunction. It first held that the Sierra Club and the Hunting Club had standing to challenge the activities authorized under the § 404 permit and then that they had satisfied the criteria for a preliminary injunction, including showing a likely threat of irreparable harm and a likelihood of success on the merits. It ordered all "work authorized by the § 404 permit" to "halt immediately."

 

    SWEPCO's appealed the preliminary injunctions ordered in each case. SWEPCO argued that the district court lacked subject matter jurisdiction because the plaintiffs had failed to show an injury in fact on their NEPA, CWA, and ESA claims. It also contends that the district court abused its discretion in granting the preliminary injunction. The Appeals Court affirmed the district court's limited injunction citing Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 689–90 (8th Cir. 2003).

 

    Further explaining the decision, the Appeals Court said, "The district court found that an injunction was in the public interest because it would convey to the public the importance of having its government agencies fulfill 'their obligations and comply[] with the laws that bind them.' The district court rejected SWEPCO's arguments that an injunction would put at risk hundreds of jobs and threaten the electric generating capacity of a region in need. '[O]utside of SWEPCO's bare assertions,' it noted, there was 'no other evidence of need . . . anywhere in the record.'

 

    "The district court's analysis on this element is sound. We agree that, just as important as the public interest in potential economic gains is 'the public's confidence that its government agencies act independently, thoroughly, and transparently when

reviewing permit applications.' The 'environmental dangers at stake in this case are serious,' see Davis, 302 F.3d at 1116, and the public interests that might be injured by a preliminary injunction, such as temporary loss of jobs or delays in increasing energy output in the region, 'do not outweigh the public interests that will be served.' Alliance for the Wild Rockies, 632 F.3d at 1138.

    Access the complete opinion (click here). [#Water, #Energy, #CA8]

NRDC v. West Coast Seafood Processors Association

June 6: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 09-16245 and 09-16796. Appealed from the United States District Court for the Northern District of California. In brief summary the Appeals Court indicated that West Coast Seafood Processors Association (WCSPA) appealed from the district court's denial of its motion to intervene as a defendant in the case, in which the Natural Resources Defense Council, Inc., and Pacific Marine Conservation Council, Inc. (together, NRDC) challenged the National Marine Fisheries Service's (NMFS) program to preserve groundfish species off the coast of California, Oregon, and Washington. In a split decision, the Appeals Court ruled simply that, "Because the litigation between NRDC and NMFS has ended, we dismiss WCSPA's appeal as moot."

 

    Ruling on one aspect of the case, the majority Appeals Court said, "It is not reasonable to expect that this dispute about timeliness will arise again. The hybrid Groundfish Plan/Specifications litigation is over. Although NRDC will likely challenge future Specifications and WCSPA will likely file future motions to intervene, the timeliness issue, which is the subject of this appeal, will not likely reappear (as it did not appear in any of the other cases in which the NRDC challenged earlier Specifications and in which WCSPA successfully intervened), unless the same unlikely, hybrid scenario develops again over the next decade. Such a speculative possibility does not constitute a 'reasonable expectation.'"

 

    In a lengthy dissenting opinion, one justice ruled, ". . .I conclude the case survives mootness because it falls in the 'capable of repetition, yet evading review' exception to mootness. I would thus reach the merits of the appeal and reverse." He said further, "

I conclude that this case falls within the 'capable of repetition, yet evading review' exception to mootness. This exception applies if two requirements are met: '(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.' Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). The present case meets both of these requirements."

 

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

In Re: Aiken County (Yucca Mountain Repository)

Jul 1: In the U.S. Court of Appeals, D.C. Dircuit, Case Nos. 10-1050, 10-1052, 10-1069 & 10-1082. On Petitions for Declaratory and Injunctive Relief, Petitions for Extraordinary Relief, and Petitions for Review. As the Appeals Court explained, three state and local governmental units, along with individual citizens, petitioned the court for review of and other relief from two "determinations" made by the Department of Energy (DOE") and the other respondents: (1) the DOE's attempt to withdraw the application it submitted to the Nuclear Regulatory Commission (NRC or the Commission) for a license to construct a permanent nuclear waste repository at Yucca Mountain, Nevada; and (2) the DOE's apparent decision to abandon development of the Yucca Mountain nuclear waste repository. The Appeals Court ruled unanimously, with two concurring opinions, "Because we believe that Petitioners' two claims are, respectively, not ripe for judicial determination and not justiciable by this court, we dismiss the petitions for lack of jurisdiction."

 

    In explaining the petitioners and their claim, the Appeals Court said, "The present petitioners argue that recent actions taken by the DOE—which at the very least demonstrate the DOE's desire to abandon development of the Yucca Mountain nuclear waste repository -- violate the Nuclear Waste Policy Act (NWPA), the National Environmental Policy Act, and the Administrative Procedure Act (APA). Three of the petitioners -- Aiken County in South Carolina, the State of South Carolina, and the State of Washington -- are state or local governments of localities that are home to sites that temporarily store spent nuclear fuel and high-level radioactive waste pending the opening of a federal nuclear waste repository. The remaining petitioners are three private citizens who live and work near one of those sites. Put succinctly, Petitioners believe that if the federal government abandons the Yucca Mountain nuclear repository, the only congressionally-approved site for permanently disposing of the nation's spent nuclear waste will be lost and the federal government will fail to comply with its statutory responsibility to provide for the permanent disposal of all of the nation's high-level radioactive waste."

 

    The Appeals Court finds that, "First, the Commission has not yet decided whether it will review the Licensing Board's denial of the DOE motion to withdraw. If the Commission declines to review the denial, the DOE will have failed in its attempt to withdraw the Yucca Mountain application and Petitioners' first claim will be moot. The same outcome will occur if the Commission chooses to review and then upholds the Licensing Board's denial of the DOE motion. The only way in which Petitioner's first claim will not become moot is if the Commission chooses to review and then reverses the Licensing Board's denial. . ."

 

    Petitioners' second claim challenges DOE actions which are simply not reviewable by this court. Petitioners characterize the

agency action challenged in their second claim as the 'determination made on or about January 29, 2010, by Respondents President Obama, Secretary Chu and DOE to unilaterally and irrevocably terminate the Yucca Mountain repository process mandated by the Nuclear Waste Policy Act, 42 U.S.C. §§ 10101-10270.' Agency actions are reviewable by courts of appeal under the terms of 5 U.S.C. § 704. That section delineates reviewable actions as '[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court . . . .' Petitioners have failed to identify any agency action coming within that delineation. Otherwise put, petitioners have set forth no discrete action mandated by the NWPA that the DOE has failed to perform or performed inadequately. . ."

 

    Finally, the Appeals Court concludes, "The NWPA set forth a process and schedule for the siting, construction, and operation of a federal repository for the disposal of spent nuclear fuel and high-level radioactive waste. At this point in that process, the DOE has submitted a construction license application for the Yucca Mountain repository and the Commission maintains a statutory duty to review that application. Despite the respondents' pronouncements and apparent intentions, unless and until Petitioners are able to demonstrate that one of the respondents has either violated a clear duty to act or otherwise affirmatively violated the law, Petitioners' challenges to the ongoing administrative process are premature. For the reasons set forth above, we conclude that we lack jurisdiction over Petitioners' claims. The petitions are dismissed."

 

    Among the two concurring opinions, Justice Kavanaugh wrote a lengthy opinion saying, "This case is a mess because the executive agency (the Department of Energy) and the independent agency (the Nuclear Regulatory Commission) have overlapping statutory responsibilities with respect to the Yucca Mountain project. In particular, both agencies have critical roles in interpreting the relevant statutes and in exercising discretion under those laws. Of importance here, the statutes give the independent Nuclear Regulatory Commission the final word in the Executive Branch on whether the Executive Branch may terminate the Yucca Mountain project. At the President's direction, the Department of Energy decided to withdraw the Yucca Mountain license application and terminate the Yucca Mountain nuclear storage project. A board within the Nuclear Regulatory Commission preliminarily rejected the decision of the Department of Energy (and thus of the President) to withdraw the Yucca Mountain license application. But the full Nuclear Regulatory Commission has yet to decide whether it will approve or reject the decision of the Department of Energy. Because the Commission has not yet acted on the Department of Energy's request, the Court's opinion today properly holds this case unripe under the existing legal framework. . ."

 

    He concludes, "This case is a dramatic illustration of the continuing significance and implications of Humphrey's Executor. As a result of Humphrey's Executor and the current statutory scheme, the President does not have the final word in the Executive Branch about whether to terminate the Yucca Mountain project. For now, therefore, the ball in this case rests in the Executive Branch not with the President, but rather with the Nuclear Regulatory Commission."

 

    In response to the court's decision, Energy and Commerce Committee Chairman Fred Upton (R-MI) and Environment and the Economy Subcommittee Chairman John Shimkus (R-IL), who have been holding hearings investigating the Yucca Mountain issue, released a statement, "The court's decision underscores the urgency for the NRC to complete action on the Yucca repository licensing application. With Commissioner Ostendorff set for another term, the NRC must now come together and finalize its vote on the Atomic Safety Licensing Board's ruling that DOE cannot withdraw Yucca's application. The Obama administration has already chosen to squander $15 billion; decades of scientific research and bipartisan collaboration hang in the balance, and taxpayers remain on the hook for billions of dollars more in future liability claims. Chairman Jaczko's politically motivated efforts to manipulate and steamroll this process, brought to light by the NRC Inspector General and career scientists, will no longer be tolerated. It's time for the NRC to get back to work and complete its job."

 

    Senate Majority Leader Harry Reid did not issue a release, but indicated in a Twitter posting, "Great day for Nevada. Court decision marks imp. win in battle 2 put Yucca Mtn. project 2 rest."

 

    Access the complete opinion and concurrences (click here). Access the statement from Reps. Upton and Shimkus (click here). Access Sen. Reid's Twitter posting (click here) [*Haz/Nuclear, #CADC]

Natural Resources Defense Council (NRDC) v. U.S. EPA

Jul 1: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1056. On Petition for Review of a Final Action of the Environmental Protection Agency. In this important case the Appeals Court addresses the highly controversial issue of regulatory "guidance" versus officially promulgated rules. The Appeals Court indicates, "Yet again we face a challenge to the Environmental Protection Agency's regulation of ozone under the Clean Air Act. At issue this time is an EPA "guidance document" addressing obligations of regions still in nonattainment of a now-revoked ozone air quality standard."

 

    The Appeals Court indicates, "Petitioner argues that the Guidance amounts to a legislative rule issued in violation of the Administrative Procedure Act's notice and comment requirement and that its substantive content is contrary to law. Firing nearly all the arrows in its jurisdictional quiver, EPA argues that petitioner lacks standing, that the Guidance does not qualify as final agency action, and that petitioner's claims are unripe for judicial review. As we explain in this opinion, all three arrows miss their target. On the merits, we conclude that the Guidance qualifies as a legislative rule that EPA was required to issue through notice and comment rulemaking and that one of its features -- the so-called attainment alternative -- violates the Clean Air Act's plain language. We therefore grant the petition for review and vacate the Guidance. . .

 

    "Now before us is EPA's latest attempt to reconcile the 8-hour standard with Subpart 2. This time its effort relates only to the application of section 185 fees to the eight regions in severe or extreme nonattainment of the 1-hour standard: Baltimore, Baton Rouge, Houston, New York City, Sacramento, the San Joaquin Valley, the South Coast Air Basin (CA), and the Southeast Desert (CA). Because attainment deadlines for the eight regions have now expired, all are in the process of developing section 185 implementation plans. Faced with the prospect of hefty fees, industry groups complained to EPA that because they already had in place the best available emission control technology, they could reduce emissions and thus avoid fees only by cutting production."

 

    EPA issued a "Guidance" document aimed at Regional Air Division Directors -- the agency officials directly responsible for implementation plan approval --  Memorandum from Stephen D. Page, Director, Office of Air Quality Planning & Standards to Regional Air Division Directors 3 (Jan. 5, 2010) (Fee Program Guidance). In other words, EPA believes 1-hour nonattainment areas have flexibility to choose between the statutorily mandated program and an equivalent -- i.e., the program alternative.

In addition to that alternative, the Guidance explains, regions attaining either the 1-hour or the 8-hour standard can avoid section 185 fees through an "attainment alternative."

 

    NRDC argues that EPA violated the Administrative Procedure Act by issuing the Guidance without notice and comment and that both the program and attainment alternatives violate the Clean Air Act. In response, EPA argues that NRDC lacks standing, that the Guidance fails to qualify as final agency action, and that NRDC's challenges are unripe for review. On the merits, EPA contends that the Guidance is either a policy statement or an interpretive rule and, in either case, is exempt from the notice and comment requirement. It also defends both alternatives as permissible exercises of statutory gapfilling. Numerous industry groups, including the American Chemistry Council and the South Coast Air Quality Management District have intervened in support of EPA.

 

    In a concluding statement the Appeals Court said, ". . .as we have said before, "[i]f the Environmental Protection Agency disagrees with the Clean Air Acts' requirements . . . , it should take its concerns to Congress. . . . In the meantime, it must obey the Clean Air Act as written by Congress and interpreted by this court." Sierra Club, 479 F.3d at 884."

     Access the complete opinion (click here). [*Air, #CADC]

Sierra Club v. Lisa Jackson

Jul 1: the U.S. Court of Appeals, D.C. Circuit, Case No. 10-5280. Appealed from the United States District Court for the District of Columbia. Appellants, nonprofit environmentalist organizations, appeal from a judgment of dismissal entered by the district court in an action against the United States Environmental Protection Agency (EPA) under the citizen suit provision of the Clean Air Act, challenging the Administrator's failure to take action to prevent the construction of three proposed pollution-emitting facilities in Kentucky. The district court held that there was no mandatory duty to act and granted the EPA's motion to dismiss for lack of subject matter jurisdiction. The Appeals Court affirmed the dismissal on different grounds.

 

    The three projects underlying this litigation are the East Kentucky Power Cooperative's J.K. Smith Generating Station coal-fired CFB Boiler Project (Smith), Conoco Phillips and Peabody's Kentucky NewGas Synthetic Natural Gas Production plant (NewGas), and Cash Creek Generation LLC's coal-fired Cash Creek Generating Station (Cash Creek). Because each facility qualifies as a "major emitting facility," see § 7479(1), and because each is proposed to be built in a county designated as an attainment area, all three facilities are required to obtain permits from the State of Kentucky. § 7475(a). The permits are part of the statutory Prevention of Significant Deterioration (PSD) program implementing the requirements of § 7475(a). Kentucky granted PSD permits to each facility prior to September 15, 2010. That fact is significant because until that date, the Kentucky State Implementation Plan failed to meet the requirements of the Clean Air Act's PSD regulations.

 

    The Appeals Court explains that, "When neither the Administrator nor the state took action to prevent the construction of the nonconforming major emitting facilities, appellants, two environmentalist nonprofits (collectively referred to as Sierra Club), brought the present action under 42 U.S.C. § 7604(a)(2), which provides for the filing of citizen suits against the Administrator for her alleged failure to perform any nondiscretionary duty under the Act. Arguing that her duty under § 7477 was discretionary, and therefore beyond the reach of the statute, the Administrator moved for dismissal. Agreeing with the Administrator, the district court ruled that the Administrator's decision not to exercise her statutory duty was discretionary, and thus not subject to judicial review. Sierra Club v. Jackson, 724 F. Supp. 2d 33 (D.D.C. 2010). The district court entered a judgment of dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. Sierra Club brought the present appeal."

 

    The Appeals Court explains its ruling on different grounds and said, "Although we hold that we do not lose jurisdiction over this controversy by reason of mootness, this does not resolve the jurisdictional theory upon which the district court relied in dismissing the case under Rule 12(b)(1) for lack of subject matter jurisdiction. Sierra Club, 724 F. Supp. 2d at 42-43. The district court's ruling was based on the proposition that the Administrator's decision was discretionary and therefore not justiciable. Before this court, Sierra Club, which certainly does not concede that the district court should have dismissed the claim at all, argues that the analysis should have been under Rule 12(b)(6) to determine whether the complaint failed to state a claim upon which relief could be granted rather than under the jurisdictional standards of Rule 12(b)(1). While it does not in the end affect the outcome, we ultimately agree that Rule 12(b)(6) should govern. We hasten to state that we do not fault the district court for basing its dismissal on Rule 12(b)(1) rather than Rule 12(b)(6). The distinction between a claim that is not justiciable because relief cannot be granted upon it and a claim over which the court lacks subject matter jurisdiction is important. But we cannot fault the district court, as this court 'ha[s] not always been consistent in maintaining these distinctions.' Oryszak v. Sullivan, 576 F.3d 522, 527 (D.C. Cir.2009) (Ginsburg, J., concurring). Indeed, we have provided authority both that discretionary duty claims fall outside our jurisdiction, and that such claims are nonjusticiable under Rule 12(b)(6). In Association of Irritated Residents v. EPA, we held that agency decisions excluded from judicial review by 5 U.S.C. § 701(a)(2) are outside the court's jurisdiction. 494 F.3d 1027, 1030 (D.C. Cir. 2007) ('In this case, subject matter jurisdiction turns on whether the Agreement constitutes a rulemaking subject to APA review, or an enforcement proceeding initiated at the agency's discretion and not reviewable by this court.'). Two years later, in Oryszak v. Sullivan, we came to a different conclusion."

 

    Access the complete opinion (click here). [*Air, #CADC]

United States v. Mancuso

Jun 30: In the U.S. Court of Appeals, Second Circuit, Case No. 10-2420. In this unpublished order appealed from judgments of the United States District Court for the Northern District of New York. The case involves sentencing of two brother who among other convictions, violated the Clean Air Act (CAA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in the conduct of asbestos removal.

 

    The Appeals Court ruled on many issues that were appealed and said, "Upon due consideration, it is hereby ordered, adjudged, and decreed that the judgments of conviction entered as to defendant Steven Mancuso on June 14, 2010; and as to Paul Mancuso on June 14, 2010, and January 10, 2011, are affirmed in part and vacated in part, and the cases are remanded for resentencing consistent with this order. Steven and Paul Mancuso stand convicted by a jury on a common count of conspiracy to defraud the United States, see 18 U.S.C. § 371; to commit mail fraud, see id. § 1341; to violate the Clean Air Act (CAA), see 42 U.S.C. §§ 7412, 7413(c); and to violate the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), see id. § 9603. Paul Mancuso was further convicted of six substantive CAA and CERCLA counts. See 42 U.S.C. §§ 7413(c), 9603(a)-(b). Steven Mancuso, who was sentenced to 44 months in prison."

 

    Both defendants fault the district court for applying a four-level enhancement for permitless disposal of a hazardous substance based on a Clean Water Act permit violation. The Appeals Court said regarding the environmental issues, "Although neither defendant objected to the enhancement below, we are here obliged to identify plain error. Our precedent prohibits application of § 2Q1.2(b)(4) when the environmental offense at issue 'did not 'involve' a permit violation,' even if the conduct contravened a different

statute's permit requirements. United States v. Rubenstein, 403 F.3d at 100-01 (vacating enhancement based on state permit violation when defendant convicted of CAA offense because CAA does not require permit). Thus, the district court here plainly erred by applying the enhancement based solely on a Clean Water Act permit violation because the relevant CAA and CERCLA offenses did not involve permits. . ."

 

    Access the complete order with more details (click here). [*Air, *Remed, *Toxics, CA2]

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