Wednesday, August 24, 2011

WIMS Publication Break

WIMS is on our late summer break.
We will return on September 6, 2011
Thank you very much for visiting our blog.

Wednesday, August 17, 2011

National Electrical Manufacturers v. US Department of Energy

Aug 16: In the U.S. Court of Appeals, Fourth Circuit, Case No. 10-1533. On Petition for Review of an Order of the Department of Energy. In a split decision the majority Appeals Court
denied the petition for review. The National Electrical Manufacturers Association (NEMA) petitions for review of a final rule promulgated by the United States Department of Energy (DOE) setting forth energy conservation standards for electric induction motors ranging in power output from .25 to 3 horsepower. See Energy Conservation Standards for Small Electric Motors: Final Rule, 75 Fed. Reg. 10874 (Mar. 9, 2010) (codified at 10 C.F.R. pt. 431) (Final Rule). In promulgating the Final Rule, the DOE invoked its authority to establish energy conservation standards for "small electric motor[s]," a term defined by the Energy Policy and Conservation Act (EPCA). See 42 U.S.C. § 6311(13)(G).
    NEMA contends that the relevant statutory definition unambiguously excludes all such motors exceeding 1 horsepower, as well as certain motors rated at and less than 1 horsepower, from being regulated as small electric motors. The majority Appeals Court said, "because the Final Rule embodies a permissible interpretation of the statutory definition, we deny the petition for review." The majority explained that, the resolution of the challenge turns on the meaning of the term "small electric motor," which, as provided by the EPCA, "means a NEMA general purpose alternating current singlespeed induction motor, built in a two-digit frame number series in accordance with NEMA Standards Publication MG1-1987." 42 U.S.C. § 6311(13)(G). MG1-1987 is an industry publication that sets forth specifications for electric motors and generators, which collectively are called "machines." The publication classifies machines in various ways, such as by size, application, electrical type, and variability of speed.
    In the Determination, the DOE identified one "key issue" as "the definition of a 'small electric motor' and precisely which motors are covered by this rulemaking." The DOE consulted MG1-1987 to address this question, observing that "the two-digit frame series" specified in the statutory definition "encompasses NEMA frame sizes 42, 48, and 56, and motors with horsepower ratings ranging from [.25] to 3 horsepower."
    NEMA's objections track the delineations between small and medium motors set forth in Parts 10 and 12 of MG1-1987. Thus, NEMA maintains that six-pole motors are not within the definition if they exceed .5 horsepower; that four-pole motors are not if they exceed .75 horsepower; and that two-pole motors are not if they exceed 1 horsepower. NEMA further asserts that, because these more-powerful motors fall outside the definition, the Appeals Court must vacate the Final Rule in its entirety, as those motors were included in the calculations supporting DOE's determination that the Final Rule was warranted.
    The majority states, "For NEMA to prevail, the statutory definition must unambiguously incorporate the horsepower limitation that NEMA contends is found in MG1-1987. In light of the language and structure of the definition, as well as ordinary principles of grammar, we conclude that the definition does not unambiguously incorporate such a limitation. . . We do not reach or decide the broader question of whether the term 'NEMA general purpose . . . motor' unambiguously incorporates the 1987 version of MG1."
    The dissenting justice indicates, "When viewed in context, the statute we are reviewing is clearly unambiguous, and the Department of Energy's (DOE) final rule is contrary to the statute and Congress's clear direction. Therefore, I would grant the petition, vacate the final rule, and remand the matter to DOE for action consistent with the law. . . Congress certainly intended no such result. By referring to MG1-1987 in the statute, Congress incorporated the publication in its entirety, including the ratings and standards which defined small motors. Thus, Congress intended to grant DOE authority only to regulate small electric motors, which in 1992 Congress and NEMA understood to be motors of one horsepower or less. . ."
    Access the complete opinion and dissent (click here). [#Energy/Efficiency, #CA4]

Secretary of Labor v. ConocoPhillips Bayway Refinery

Aug 16: In the U.S. Court of Appeals, Third Circuit, Case no. 10-2893. On Appeal from the Occupational Safety and Health Review Commission. In this appeal, although ConocoPhillips Bayway Refinery is the real party in interest, the Appeals Court is asked to decide between different interpretations of agency regulations -- the one announced by the Secretary of Labor (Secretary), the other by the Occupational Safety and Health Review Commission (OSHRC). Both entities are part and parcel of the Department of Labor. In the appeal, because two factions within the same government agency disagree with each other over the application of a standard, the Appeals Court is thrust into resolving what is essentially an internal dispute. The Appeals Court held that "the Secretary's interpretation comports with the standard we established in Secretary of Labor v. Trinity Industries, 504 F.3d 397 (3d Cir. 2007)."
    The Secretary petitioned the Court to challenge the determination of the OSHRC that nine asbestos violations by ConocoPhillips Bayway Refinery were "not serious" rather than "serious" under 29 U.S.C. § 666. The Secretary originally cited Conoco for nine "serious" violations of the asbestos in construction standard, 29 C.F.R. § 1926.1100, under the Occupational Safety and Health Act (Act), 29 U.S.C. §§ 651-678.
    The Appeals Court states further, "We conclude that under Trinity, the violations in this case were "serious," and that the Secretary is not required to proffer case-specific evidence to meet Trinity's standard. We therefore vacate the Order of the Commission, and remand to the Commission with the direction that it affirm the citations as "serious" and reconsider the penalty for the violations in light of this opinion.
    Access the complete opinion (click here). [#Toxics, #CA3]

Tuesday, August 16, 2011

In Defense of Animals v. US Department of the Interior

Aug 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-16715. Appeal from the United States District Court for the Eastern District of California. In this split decision, the majority Appeals Court explains that this interlocutory appeal arises from an action instituted in the district court to stop the government from rounding up, destroying, and auctioning off wild horses and burros in the Twin Peaks Herd Management Area on the California-Nevada border. Plaintiffs allege that the government's actions will violate the Wild Free-Roaming Horses and Burros Act (Wild Horses Act), 16 U.S.C. § 1331 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.
    Plaintiffs are two non-profit organizations dedicated to protecting wild horses and burros, In Defense of Animals and Dreamcatcher Wild Horse and Burro Sanctuary, as well as members of the organizations (collectively Plaintiffs). Plaintiffs filed
a Motion for a Temporary Restraining Order and/or Preliminary Injunction on August 5, 2010 to stop the roundup of horses that was scheduled to begin August 9, 2010 and to last 45-60 days. The district court denied the injunction, a motions panel at Ninth Circuit denied an emergency motion for injunctive relief pending appeal on August 10, 2010, and the roundup has now taken place.
    The horses are currently offsite and the remainder of the plan is apparently going forward. The Appeals Court said the plaintiffs' motion "raises serious legal questions concerning whether the large-scale removal of horses conflicts with the Wild Horses Act and whether an Environmental Impact Statement is required before any action can be implemented." The motion for preliminary injunction sought to enjoin only the effects of implementing the initial phase. The motion for preliminary injunction sought to "preserve the status quo," i.e. enjoin the Twin Peaks Roundup of over 2,000 wild horses and 200 burros. Significantly, plaintiffs' motion alleges that the "irreparable harm" to plaintiffs will flow from the proposed "illegal roundup." The majority Appeals Court responds with an itemized, 3-point summary, indicating:
    "[1] The initial stage of the plan has, however, now concluded and the roundup has taken place. This appeal, therefore, is moot. We reached the same conclusion in a similar case. Am. Horse Prot. Ass'n, Inc. v. Watt, 679 F.2d 150, 151 (9th Cir. 1982) (noting that the court 'cannot order [the completed roundup's] effects undone'). We express no opinion here as to whether the entire action is moot. It remains pending before the district court.
    "[2] The dissent appears to construe our holding to be that plaintiffs' case is moot. This is incorrect. We hold only that this interlocutory appeal from the denial of a preliminary injunction is moot because the roundup sought to be enjoined has taken place. In the event that plaintiffs prevail on the merits of their claims, the district court should consider what relief is appropriate.
    "[3] The posture of this case is similar to that in Animal Legal Defense Fund v. Shalala, 53 F.3d 363 (D.C. Cir. 1995), where the action that the plaintiff sought to preliminarily enjoin had already occurred. Id. at 366. In dismissing the appeal, the court said that the 'parties no longer have a legally cognizable interest in the determination of whether the preliminary injunction was properly denied.' Id. It then went on to say that 'the underlying dispute . . . remains alive.' Id. The same is true, insofar as the record before us reflects in this case."
    The Majority concluded, "This appeal must be dismissed. Any further appeals in the underlying action shall be expedited and calendared before this panel."
    The dissenting justice indicated, "I do not agree with the majority's view that the injunctive relief sought pursuant to the National Environmental Policy Act (NEPA) has been mooted. A claim for relief is not moot so long as we can provide effective relief, in this case return of the horses to their native habitat. Cf. Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978) (holding case moot where 'courts cannot undo what has already been done'). . . This would be a different case if the horses who were rounded up had all been dispersed. But that is not what happened. The horses that were rounded up are currently being kept in various holding areas throughout the southwestern United States. As easily as the horses were transported out of their natural habitat, they can be returned. In this circumstance, relief is available and the request for injunctive relief is not moot. See Nw. Envt'l Dfs. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988)."
    Access the complete opinion and dissent (click here). [#Wildlife, #Land, #CA9]

Thursday, August 11, 2011

Stephen Gabarick v. Laurin Maritime (America) Inc

Aug 10: In the U.S. Court of Appeals, Fifth Circuit, Case No. 09-30549 and other consolidated cases. Appealed from the United States District Court for the Eastern District of Louisiana. The Appeals Court explains that the M/V TINTOMARA, an ocean-going tanker, collided with the barge DM-932, in the tow of the M/V MEL OLIVER, splitting the barge in half and spilling its cargo of oil into the Mississippi River. Following the filing of numerous lawsuits, including personal injury claims by the crew members and class actions by fishermen, the primary insurer filed an interpleader action,
depositing its policy limits with the court.
    The Appeals Court said, "We are asked to review allocations of interpleader funds as well as the district court's finding that the maritime insurance policy's liability limit included defense costs. We affirm the district court's decision that defense costs erode policy limits but are persuaded that its orders allocating court-held funds among claimants were tentative and produced no appealable order."
    The Appeals Court summarized, "In sum, the barge owner's assertions of ambiguity demand reliance upon the collision clause, which is not only severable but also inapplicable because all of the damages incurred are excluded from that coverage. Returning to the pure P&I coverage, the policy is clear that defense costs were intended to be included within the policy limits. This P&I policy is unambiguously written against the backdrop of traditional principles of maritime law that defense costs erode P&I limits of liability. It is evident that viewed objectively the parties expectations were as we have today held. For want of jurisdiction, we decide nothing more regarding allocation of the court-held funds. Affirmed in part; Dismissed in part."
    Access the complete opinion (click here). [#Water, #Remed, #CA5]

Wednesday, August 10, 2011

Sherer v. United States Forest Service

Aug 9: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1418. Appealed from the United States District Court for the District of Colorado. In this opinion involving fees charged by the U.S. Forest Services, the Appeals Court says, "Everyone enjoys a trip to the mountains in the summertime. One popular spot is Mount Evans -- a fourteen thousand foot peak just a short drive from Denver and with a paved road that goes right to the summit. When the snow
melts and the road thaws, the national forest around Mount Evans teems with hikers and sightseers eager to take in the breathtaking views. But first they have to stop and pay. That's because the Forest Service maintains an entrance station along the road where it charges many visitors what it calls an "amenity fee."
    "Wanting everyone to be able to hike Mount Evans and take in its scenery without charge, the plaintiffs in this case ask us to strike down the Service's fee policy as facially inconsistent with Congress's directions, to hold it null and void in all applications. This, however, we agree with the district court we cannot do. For better or worse, the Legislature has said that the Service may — sometimes -- charge visitors to Mount Evans. So some lawful applications of the policy do exist. But saying this much shouldn't be misconstrued as saying more. In rejecting the plaintiffs' facial challenge we hardly mean to suggest that the Service's policy can't be attacked at all. It might well be susceptible to a winning challenge as applied to certain particular visitors, perhaps even the plaintiffs themselves. But that's a path the plaintiffs haven't asked us to explore and so one we leave for another day."
    The Appeals Court provides additional clarification and says, "As a general rule Congress has decreed that anyone may enter this country's great national forests free of charge. See 16 U.S.C. § 6802(e)(2). But in 2004 Congress included an important exception in what it called the Recreation Enhancement Act (REA). The REA allows the Forest Service to impose 'amenity fees' in areas that 'provide[] significant opportunities for outdoor recreation,' where there are 'substantial Federal investments' and certain 'amenities' -- amenities defined to include, among other things, interpretive exhibits, a permanent toilet, and security services. See 16 U.S.C. § 6802(f). Soon after the REA's adoption, the Forest Service invoked this very provision and adopted a 'Mount Evans Clear Creek Ranger District Federal Lands Recreation Enhancement Act Implementation Plan' imposing an amenity fee at Mount Evans."
    Access the complete opinion (click here). [#Land, #CA10]

Friday, August 5, 2011

Sierra Club v. Federal Highway Administration

Aug 2: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-20502. Appealed from the United States District Court for the Southern District of Texas. In this unpublished opinion, Sierra Club and Houston Audubon Society brought suit under the National Environmental Policy Act,  alleging that the Federal Highway Administration and others failed to follow certain requirements when preparing the Final Environmental Impact Statement for Segment E of the Grand Parkway, a highway planned in northwest Houston. The district court concluded that the defendants had complied with the Act's requirements and entered summary judgment in their favor. The Appeals Court affirmed.
    The Appeals Court concluded in its decision, "Although the district court may have erred in denying Appellants leave to amend, or at least erred in failing to provide its reason for doing so, any error was harmless. See Fed. R. Civ. P. 61 ('At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights.'). Appellants assert that their rights were affected because the district court's denial of leave to amend prevented them from addressing inadequacies in the Re-evaluation. On the contrary, the district court never prohibited the parties from addressing the Re-evaluation. Furthermore, most of the additional claims in the proposed amended complaint were duplicative of the claims asserted in the original complaint. The relief sought by Appellants in the original complaint included the preparation of a supplemental EIS, and the Agencies concluded in the Re-evaluation that a supplemental EIS was unnecessary; therefore, the Re-evaluation was relevant to and appropriately addressed as part of Appellants' claims based on the FEIS. Two of the claims based on the Re-evaluation did not mirror claims in the original complaint, but one claim could have been brought in the original complaint and the other was fully addressed by the parties in their summary judgment briefing as part of one of the original claims. Appellants are therefore unable to demonstrate that their substantial rights were affected by the district court's denial of leave to amend their complaint."
    Access the complete opinion (click here). [#Transport, #CA5]

Thursday, August 4, 2011

Florida Wildlife Federation v. U.S. EPA

Aug 3: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 10-11121 & 10-10886. Appealed from the United States District Court for the Northern District of Florida. Intervenors-Appellants Florida Water Environment Association Utility Council and South Florida Water Management District (Appellants) appeal the district court's order approving a consent decree between the United States EPA and a group of environmentalist organizations (Plaintiffs). The consent decree settled a suit filed by the Plaintiffs against the EPA that alleged that the agency failed to promulgate timely new water-quality standards for the State of Florida. The Appellants claim that the consent decree is substantively and procedurally unreasonable and that the district court abused its discretion by approving the decree. A split Appeals Court said, "Because the Appellants have not demonstrated a live case or controversy that would give this court jurisdiction over their case, we dismiss their appeal."
    The majority ruled, "Standing is a rigid doctrine, and it can lead to an abrupt end to a case that has consumed large amounts of judicial and social resources. Nonetheless, this court is bound by the Constitution, not the dictates of convenience. For the aforementioned reasons, we conclude that the Appellants lack standing to appeal. They seek to challenge a consent decree that establishes a schedule under which the EPA has begun promulgating numeric water-quality criteria for nutrients in Florida's waters. However, the only alleged injuries about which they complain occur -- if ever at all -- after the promulgation of the EPA's final rules and possibly not until those criteria are actually applied to the Appellants through incorporation into their individual discharge permits. Once the rules have been promulgated and implemented, the Appellants may bring suit raising the arguments they try to raise here. But in this case, their challenges to anticipated effects of the scheduling of the rulemaking process are entirely speculative."
    The dissenting justice indicated, "I dissent from the majority's dismissal of Appellants' claims related to the EPA's forthcoming Phase II rule [i.e. publish numeric nutrient standards for Florida's coastal and estuarine waters]. Although Appellants have demonstrated that they have been injured by the consent decree, the majority's opinion effectively eliminates all means by which Appellants could challenge any errors made by the district court when approving it. Because: (1) nothing in standing doctrine requires Appellants to rely solely on one particular avenue for suit where multiple, justiciable avenues exist, see Ala. Power Co. v. U.S. Dept. of Energy, 307 F.3d 1300, 1309 (11th Cir. 2002) (rejecting the Department of Energy's argument that non-parties to a settlement agreement should await a final decision by the Department before suing, rather than challenging the terms of the settlement agreement); (2) 'fairly traceable' does not mean absolutely and exclusively traceable, see Bennett v. Spear, 520 U.S. 154, 168–69 (1997) (holding, based on analogous facts, that 'fairly traceable' does not mean that the defendant's actions must be the very last step in the chain of causation); and (3) our law is clear that a court must not enter a consent decree without the consent of all parties whose rights would be affected, see United States v. City of Hialeah, 140 F.3d 968, 978–81 (11th Cir. 1998), this Court should have reached the merits of Appellants' claims alleging substantive and procedural injuries from the entry of the consent decree."
    Access the complete opinion and dissent (click here). [#Water, #CA11]

Tuesday, August 2, 2011

Hinds Investment, LP v. Team Enterprises, Inc.

Aug 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-15607. Appeal from the United States District Court for the Eastern District of California. Plaintiffs Hinds Investments, L.P. and Patricia MacLaughlin (collectively, Hinds) appeal the district court's dismissal of their claims against manufacturers of dry cleaning equipment brought, inter alia, under the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901 et seq. RCRA permits citizen suits against "any person . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." Id. § 6972(a)(1)(B). [Note: See also the similar 9th Circuit case, Team Enterprises, LLC v. Western Investment Real Estate Trust, WIMS 7/27/11].
    The district court held that Hinds's allegations that the manufacturers contributed to waste disposal, by the design of machines that generated waste and by the instructions they gave on use of these machines, were insufficient as a matter of law to support a civil action under RCRA because all of the defendant manufacturers' alleged contributions were passive. The Appeals Court said, "We affirm. We hold that, for RCRA liability, 'contribution' requires more active involvement than was alleged as to the defendant manufacturers." The Appeals Court also noted in a footnote, "Hinds also appeals the dismissal of its other statutory and common law claims against defendant manufacturers. In a separate memorandum disposition filed along with this opinion, we affirm those rulings."
    The Appeals Court concluded, "We hold that to state a claim predicated on RCRA liability for "contributing to" the disposal of hazardous waste, a plaintiff must allege that the defendant had a measure of control over the waste at the time of its disposal or was otherwise actively involved in the waste disposal process. Mere design of equipment that generated waste, which was then improperly discarded by others, is not sufficient."
    Access the complete opinion (click here).  [#Remed, #Haz, #CA9]