U.S. v. Southern Union Company

Dec 22: In the U.S. Court of Appeals, First Circuit, Case No. 09-2403. Appealed from the District Court of Rhode Island, Providence. According to the Appeals Court, this appeal by Southern Union, a natural gas company convicted by a jury of storing hazardous waste without a permit, raises two issues of initial impression. First, the case tests whether Federal criminal enforcement may be used under the Resource Conservation and Recovery Act (RCRA), where certain Federally approved state regulations as to hazardous waste storage have been violated. Second, the case also raises the important question of whether a criminal fine must be vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000), where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines.

   

    The hazardous waste at issue is mercury, which the Appeals Court says "can poison and kill those exposed to it" In this case 140 pounds of mercury became the "play toy of young vandals who spread it about, including at their homes in a local apartment complex, after they spilled it around Southern Union's largely abandoned and ill-guarded Tidewater site in Pawtucket, Rhode Island."

 

    The Appeals Court affirmed the district court's rulings on Southern Union's conviction, as set forth in United States v. Southern Union. The Appeals Court concluded that: "(1) Southern Union is precluded by 42 U.S.C. § 6976(b) from challenging the EPA's 2002 Immediate Final Rule authorizing Rhode Island's RCRA regulations. Having failed to use the statutory procedure for judicial review, Southern Union may not raise the issue by collateral attack; (2) the 2002 Rule, in any event, is valid and was within the EPA's authority to adopt; and (3) the conviction does not violate Southern Union's right to fair notice under the Due Process Clause.

 

    The Appeals Court also affirmed the fine imposed saying, "The Apprendi issue is close but the Supreme Court's recent decision in Oregon v. Ice, 129 S. Ct. 711 (2009), leads us to hold that the Apprendi rule does not apply to the imposition of statutorily prescribed fines. If, however, we were wrong in our assessment of the Apprendi issue, we would find that any error under Apprendi was not harmless and that the issue of the fine would need to be remanded. Finally, we also hold that the financial penalties imposed did not constitute an abuse of the district court's discretion."

 

    Southern Union claimed the $18 million penalty was substantively unreasonable, arguing that it was grossly excessive in comparison to the penalties of $75,000-$250,000 imposed in what it describes "as cases of more egregious RCRA violations." However, on the penalty issue the Appeals Court said, ". . .the district court made 'an individualized assessment based on the facts presented,' and 'adequately explain[ed] the chosen sentence.' [Citing Gall, 552 U.S. at 50]. The district court explained why the statutory factors justified the penalties, noting that Congress measured the seriousness of long-term RCRA violations by imposing a high, per day statutory maximum fine; that Southern Union's willingness to put a densely-populated residential community, local public safety employees, and its own employees at risk by storing hazardous waste under deplorable conditions in their midst indicated great culpability; and that there was a need for a penalty substantial enough to attract the attention of large corporations, thereby achieving not only specific, but also general, deterrence. . ."

 

    Access the complete opinion (click here).

Hoopa Valley Tribe v. FERC

Dec 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1134. The Appeals Court indicates that one of the modern U.S. government's major regulatory tasks is to reconcile competing demands on the Nation's natural resources. The dispute in this case concerns water resources in the Pacific Northwest, where a hydroelectric plant provides power to some citizens but interferes with the food needs and recreational desires of others.

 

    The Klamath Hydroelectric Project is located on the Klamath River in Oregon and California. The Project serves as a source of electricity for customers in a six-state area of the Pacific Northwest. From 1956 to 2006, a power company known as PacifiCorp operated the Klamath Hydroelectric Project pursuant to a 50-year license granted by the Federal Energy Regulatory Commission (FERC). Since the original license expired in 2006, PacifiCorp has operated the Project under successive annual licenses granted by FERC.

 

    The Hoopa Valley Tribe of American Indians holds fishing rights in the Klamath River and subsists in part on the River's trout. In 2007, the Tribe requested that FERC impose conditions on PacifiCorp's annual licenses so as to preserve the Klamath River's trout fishery. FERC declined to do so. In this Court, the Tribe has challenged FERC's refusal as contrary to the Commission's regulations and precedents, and as unsupported by substantial evidence. The Appeals Court said it disagreed and denied the Tribe's petition.

 

    The Appeals Court ruled, "This controversy presents "a classic example of a factual dispute the resolution of which implicates substantial agency expertise.' Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376 (1989). FERC acknowledged conflicting evidence and weighed the testimony of dueling experts. There was evidence on both sides; we thus have no basis to overturn the Commission's resolution of this debate. The Commission's conclusion is based on substantial evidence. Cf. Wis. Valley Improvement Co. v. FERC, 236 F.3d 738, 746-47 (D.C. Cir. 2001)."

 

    Access the complete opinion (click here).

The Lands Council v. McNair

Dec 28: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-36026. Appeal from the U.S. District Court for the District of Idaho. The Lands Council and Wild West Institute challenged the United States Forest Service's (Forest Service) decision to thin 277 acres of old-growth forest in the Mission Brush Project (Project) area, located in the Idaho Panhandle National Forest (IPNF), claiming that the Project violates the National Forest Management Act (NFMA), the IPNF Plan, and the National Environmental Policy Act (NEPA). On cross-motions for summary judgment, the district court granted summary judgment in favor of the Forest Service and denied Lands Council and Wild West Institute's motion for summary judgment. Lands

Council appeals. The Appeals Court affirmed the decisions of the district court.

 

    Access the complete opinion (click here).

Wilderness Watch, Inc. v. U.S. Fish & Wildlife Service

Dec 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17406. Appeal from the United States District Court for the District of Arizona. The Kofa National Wildlife Refuge and Wilderness in

southwest Arizona contains a desert ecosystem that is home to, among other species, bighorn sheep. After an unexpected decline in the population of the sheep, the United States Fish and Wildlife Service (Service) built two water structures (the Yaqui and McPherson tanks) within the wilderness area.

 

    Plaintiffs Wilderness Watch, Inc., et al brought suit against the Service. Plaintiffs allege that the Service's actions violated the express prohibition on the development of structures in the Wilderness Act, The district court granted summary judgment

to the Service, and Plaintiffs appealed. Reviewing de novo, High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 638 (9th Cir. 2004), the Appeals Court reversed and remanded the district court decision.

 

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Greater Yellowstone Coalition v. Lewis

Dec 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35729, 09-35753. Appealed from the U.S. District Court for the District of Idaho. The Appeals Court indicates that Greater Yellowstone appeal the district court grant of summary judgment on Greater Yellowstone's action claiming that the expansion of the J .R. Simplot Smoky Canyon Mine would violate the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the National Forest Management Act (NFMA). The Appeals Court, in a split decision, affirmed district court decision.

 

    The majority opinion said, "The agencies did not act arbitrarily and capriciously in their review and approval of Simplot's proposed mine expansion project. The agencies complied with NEPA's procedural requirements by fully evaluating the environmental impacts of the mine and disclosing those results to the public. Simplot was not required to obtain a § 401 certification. The district court properly granted summary judgment to the agencies.

 

    The dissent indicated that, "Although I concur in Part II.C of the majority opinion, I cannot agree with the majority that the federal agencies acted neither arbitrarily nor capriciously when approving the Smoky Canyon Mine expansion project. The majority violates both the letter and the spirit of the applicable federal environmental standards by approving agency action despite currently lacking critical information and by deferring key evaluations to some unspecified future date."

 

    Access the complete opinion and dissent (click here).