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We'll be back on Tuesday, January 3, 2012.

Happy Holidays

 

Subscribers & Readers Note:

 

WIMS will be off the next two weeks for our annual Christmas/New Year's holiday break and return on Tuesday, January 3, 2012, to begin our 32nd year.

 

We wish all of our subscribers & readers a happy and safe holiday season and wish you well in the coming new year. Thank you all for your continuing support.

Dietrich Bergmann v. Michigan State Transportation Commission

Dec 15: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 10-1708/1770. Appealed from the Eastern District of Michigan at Detroit. In the brief, but somewhat complicated, 5-page opinion, the Appeals Court said, "The district court partially granted Dietrich Bergmann's motion to enforce a decades-old consent decree concerning some real estate he owned in Detroit. The Appeals Court said, "In deciding which portions of the decree are enforceable, however, the court incorrectly looked to Michigan's statute of limitations, rather than the doctrine of laches. We vacate and remand."

 

    In describing the background to the case, the Appeals Court indicates that in 1979, Bergmann bought land in Detroit from the Michigan State Transportation Commission. A decade later, he sued the Commission and the Michigan Department of Transportation under the Federal Comprehensive Environmental Response, Compensation, and Liability Act. He alleged that there was contamination on the site and sought the "costs of exploratory work and of remediating" the land. In its initial pleadings, the Department asserted sovereign immunity from suit. At that time, however, the Supreme Court had interpreted the Eleventh Amendment to allow states to be sued under CERCLA. See Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989). The Department later dropped the sovereign-immunity defense in its answer to Bergmann's first amended complaint.

   

    The parties settled. The district court entered a consent decree on June 21, 1991. The decree required the Department to remediate Bergmann's property by March 31, 1995. If by then the Department failed to make a good-faith effort to remediate, the decree required the Department to pay Bergmann $2,000 per month in liquidated damages on the first day of every month until the remediation was complete.

 

    The Department failed to remediate the property or to pay the liquidated damages. On July 31, 2009 -- more than 14 years after those obligations came due -- Bergmann filed a motion with the same district court to enforce the decree. In response, the Department asserted sovereign immunity, citing a change in Supreme Court precedent. The district court eventually held that the Department had waived its sovereign immunity decades earlier by abandoning its argument that immunity barred the suit. The court then granted Bergmann's motion in part: It held that Michigan's 10-year statute of limitations barred enforcement of the Department's remediation obligation, but that each of the missed $2,000 payments triggered its own 10-year limitations period. Thus, the court awarded Bergmann damages for the period between August 1999 and March 26, 2010 (the date of its order).

 

    The Appeals Court explains its decision and cites the following cases in saying, "Both parties argue that the district court misapplied Michigan's statute of limitations. But we think the court should not have applied the statute at all. As Judge Posner has explained: 'From the standpoint of interpretation a consent decree is a contract, but from the standpoint of remedy it is an equitable decree.' Cooke v. City of Chicago, 192 F.3d 693, 695 (7th Cir. 1999) (collecting cases). Thus, if a party violates a consent decree, his opponent 'must ask the court for an equitable remedy[,]' which is then 'subject to the usual equitable defenses.' Id. For this reason, the Second Circuit holds that the equitable doctrine of laches -- and not the state statute of limitations -- governs the timeliness of motions to enforce consent decrees in nondiversity cases. See Brennan v. Nassau County, 352 F.3d 60, 63–64 (2d Cir. 2003) (per curiam). We agree with the Second Circuit. . ." [Note: the doctrine of laches indicates that failure to assert one's rights in a timely manner can result in a claim's being barred by laches].

 

    The Appeals Court ruled, "On remand, therefore, the district court should apply the doctrine of laches in deciding Bergmann's motion to enforce the decree. The district court's order partially enforcing the decree is vacated, and the case remanded for proceedings consistent with this opinion."

 

    Access the complete opinion (click here). [#Remed, #MIRemed, #CA6]

 

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Northwest Environmental Defense Center v. Brown

In Dec 12: The U.S. Supreme Court issued an order relating to the Ninth Circuit Court of Appeals decision in the case of Northwest Environmental Defense Center v. Brown (Supreme Ct docket Nos. 11-338 & 11-347) [See WIMS 5/19/11]. The order simply states that, "The Solicitor General is invited to file a brief in these cases expressing the views of the United States. Justice Breyer took no part in the consideration or decision of these petitions."

 

    In the case, Northwest Environmental Defense Center (NEDC) brought a suit against the Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and against various timber companies. NEDC argued that Defendants violated the Clean Water Act (CWA) and its implementing regulations by not obtaining permits (i.e. discharge permits) from the U.S. 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 said the discharges were 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 were exempt from the NPDES permitting process by the Silvicultural Rule, but, the Appeals Court overturned the decision and concluded that the discharges require NPDES permits.

 

    Regarding the Supreme Court order, David Tenny, President and CEO of the National Alliance of Forest Owners (NAFO) released a statement on the order. NAFO is an organization of private forest owners committed to advancing Federal policies that promote the economic and environmental benefits of privately-owned forests at the national level. NAFO membership encompasses more than 79 million acres of private forestland in 47 states.  Working forests in the U.S. support 2.5 million jobs.

 

    Tenny said, "We applaud the Supreme Court for scrutinizing the Ninth Circuit's decision to disregard EPA's 35 years of success regulating forest management as a nonpoint source under Clean Water Act. The Court is hearing not only the voice of forest owners and managers across the country but also Attorneys General from 26 states who joined a brief supporting EPA's historic approach. The policy and legal importance of this case is clear.

    "For nearly four decades, the EPA has cooperated with the states under established Clean Water Act authority to build a network of Best Management Practices providing flexible and effective water quality protection during forestry operations.  This has been a Clean Water Act success story. The Ninth Circuit's decision threatens to upend this progress by replacing an efficient and flexible system that promotes clean water with a costly and inflexible permit requirement that invites additional litigation. In the end the Ninth Circuit's decision hurts forest owners and forests alike.

    "While this is a significant first step, there is no guarantee that the Supreme Court will hear the case and reverse the Ninth Circuit Court's overstep. It does, however, provide the Administration and the Solicitor General an opportunity to submit to the Supreme Court a clear and unambiguous defense of EPA's longstanding and legally appropriate approach to regulating forest roads as nonpoint sources."

    Access the Supreme Court order (click here, page 2). Access the Supreme Court docket (click here). Access a release from NAFO (click here). Access the complete Ninth Circuit opinion (click here). [*Water, *Land, *CA9, #SupCt] 

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Portland Cement Association v. U.S. EPA

Dec 9: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 10-1358, and 10-1359, Consolidated with 10-1363, 10-1366, 10-1367, 10-1369, 10-1373, 10-1374, 10-1376, 10-1379, 11-1012, 11-1244 and 10-1361, 10-1364, 10-1365, 10-1368, 10-1370, 10-1372, 10-1375, 10-1377, 11-1245. On Petitions for Review of a Final Action of the Environmental Protection Agency. In this high profile case, the Appeals Court explains that pursuant to the Clean Air Act (CAA), the U.S. EPA enacted twin rules in 2010 setting emissions standards for portland cement facilities -- one under a section called National Emission Standards for Hazardous Air Pollutants (NESHAP); and the second under a section called New Source Performance Standards (NSPS). Petitioners, Portland Cement Association and other cement manufacturers (PCA), argue that both rules violate the CAA and are arbitrary and capricious. A consortium of environmental groups including the Sierra Club (Environmental Petitioners) filed their own petition, arguing that EPA abused its discretion by declining to include greenhouse gas emissions standards in its NSPS rule.

 

    The Appeals Court said, ". . .we agree that EPA acted arbitrarily when it promulgated the final NESHAP rule and therefore grant PCA's petition for review with respect to EPA's denial of reconsideration on that issue. We also stay the NESHAP standards for clinker storage piles pending reconsideration by EPA. We deny PCA's petitions with respect to all other issues relating to NESHAP and NSPS, and dismiss Environmental Petitioners' petition for lack of jurisdiction."

 

    In its  final summary the Appeals Court ruled, ". . .we grant PCA's petition for review with respect to EPA's denial of reconsideration of the NESHAP rule and remand the rule for further action, deny PCA's petition for review with respect to the NSPS rule, and dismiss Environmental Petitioners' petition for lack of jurisdiction. All of the standards will remain in place except for the NESHAP standards applicable to clinker storage piles, which are stayed pending reconsideration. We nonetheless urge EPA to act expeditiously on remand. . ."

 

    Regarding the Environmental Petitioners, the Appeals Court said, "At various points in their brief, Environmental Petitioners also appear to recast their petition as a challenge to EPA's 'refus[al] to act'. . . But if environmental petitioners are indeed challenging a 'refusal to act,' they should have brought their case in the district court. The Clean Air Act provides that any individual may file suit alleging that EPA has failed 'to perform any act or duty . . . which is not discretionary with the Administrator,' 42 U.S.C. § 7604(a)(2), and that '[t]he district courts shall have jurisdiction' over these suits. . . Because we lack statutory jurisdiction over environmental petitioners' claims, we have no need to consider PCA's alternative argument that environmental petitioners lack Article III standing."

 

    One Justice concurred with the opinion but wrote a lengthy comment separately saying, ". . .I write separately to observe that there is much to be said for Petitioners' argument that EPA should not be permitted to base NESHAP standards on bare emissions data, and that EPA should instead isolate the effect of emissions control technology by controlling for input quality. Because kilns are co-located with raw material quarries and because there is significant variability in the pollutant content of those raw materials, a kiln may have low emissions simply because it happens to be blessed with good inputs, not because it is using a superior control technology. But when the CAA directs EPA to set floors based on 'the emission control that is achieved in practice by the best controlled similar source,'. . . (emphases in original), it would seem to be specifically directing EPA's attention to the active steps a kiln has taken to 'control' its emissions, not simply to the level of emissions itself. . ."

 

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

National Association of Home Builders v. U.S. EPA

Dec 9: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-5341. Appeal from the United States District Court for the District of Columbia. The Appeals Court explains that, the National Association of Home Builders (NAHB) and its member organizations, Southern Arizona Home Builders Association and Home Builders Association of Central Arizona, appeal the dismissal of their lawsuit challenging the determination (Determination) by the United States Army Corps of Engineers (Corps) and U.S. EPA (collectively, Agencies) that two reaches of the Santa Cruz River in southern Arizona constitute "traditional navigable water[s]" (TNW) so as to come within the Agencies' regulatory authority under the Clean Water Act (CWA). NAHB challenges the TNW Determination as both procedurally and substantively defective.

 

    The district court dismissed the complaint for lack of subject matter jurisdiction on the ground the CWA precludes a preenforcement challenge to a TNW Determination. The Appeals Court ruled, "We affirm the dismissal on the alternative jurisdictional ground that the appellants lack standing under Article III of the United States Constitution." The Appeals Court cites previous cases and the requirements for standing saying, "The 'irreducible constitutional minimum of standing contains three elements': (1) injury-in-fact, (2) causation, and (3) redressability." The Appeals Court said, "We conclude that NAHB has not demonstrated an injury in fact traceable to the TNW Determination to establish standing -- either in its own right or on behalf of its members.

 

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

Citizens for Balanced Use v. McAllister (U.S. Forest Service)

Dec 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-36051, 09-36058, & 09-36080. Appealed from the United States District Court for the District of Montana. A coalition of environmental groups (Montana Wilderness Association, et al., hereinafter MWA) challenges the 2006 Gallatin National Forest Travel Management Plan prepared by the United States Forest Service, arguing that the travel plan violates the Montana Wilderness Study Act of 1977 (Study Act). The Appeals Court ruled that the Study Act requires the Service to ensure that current users of a wilderness study area are able to enjoy the wilderness character of the area as it existed in 1977, pending a Congressional decision on whether to designate the area as wilderness.

 

    The Appeals Court said that, "In this case, the Service has not adequately explained how the 1977 wilderness character of the relevant study area, particularly the opportunities for solitude it offers, has been maintained despite an increase in the volume of motorized and mechanized recreation in the area. We therefore conclude that the Service's adoption of the travel plan was arbitrary and capricious, and accordingly affirm the district court's decision finding that the Service's actions violate the Administrative Procedure Act (APA)."

 

    The Appeals Court said, "In addressing § 1502.22, the Service noted that historical data tracking changes in the volume of recreational use within the study area could not be obtained, but concluded that such data were not necessary in any event. This conclusion was apparently based on the Service's faulty determination that it was not obligated to maintain the study area's 1977 wilderness character, including 1977 opportunities for solitude, for the benefit of current users. . . We therefore hold that the Service incorrectly determined that historical volume of use data are irrelevant for § 1502.22 purposes. . . On remand, the Service must acknowledge the relevance of the missing information and comply with § 1502.22(b)'s instructions for assessing reasonably foreseeable adverse impacts despite gaps in the relevant data."

 

    In conclusion, the Appeals Court said, "We hold that the travel plan improperly ignores the impact of increased volume of motorized and mechanized use on current users' ability to seek quiet and solitude in the study area. Because the Service entirely failed to consider this important aspect of its duty to maintain the study area's 1977 wilderness character, its decision is arbitrary and capricious. We affirm judgment in favor of MWA and against the Service and Citizens."

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

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