Thursday, February 3, 2011

Association of Irritated Residents v. EPA

Feb 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-71383. On Petition for Review of an Order of the U.S. EPA. The Association of Irritated Residents, Natural Resources Defense Council, and others petition for review of a final action by EPA approving in part and disapproving in part revisions to California's State Implementation Plan for meeting air quality standards for ozone under the Clean Air Act. The Appeals Court granted the petition for review and remanded the case to EPA for further consideration.
    In summary, the Appeals Court said, "EPA's approval of the 2003 SIP Revision was arbitrary and capricious. EPA should have ordered California to submit a revised attainment plan for the South Coast after it disapproved the 2003 Attainment Plan. EPA should have required transportation control measures. EPA is required to determine whether the Pesticide Element has sufficient
enforcement mechanisms to satisfy the requirements of the Act. We grant the petition for review and remand to the EPA for further proceedings consistent with this opinion."
    Access the complete opinion (click here).

Ocean County Landfill Corp v. US EPA

Feb 2: In the U.S. Court of Appeals, Third Circuit, Case No. 09-2937. On Petition for Review from the U.S. EPA Region II. U.S. EPA issued a letter opining that facilities operated by Ocean County Landfill Corporation (OCLC) and Manchester Renewal Power Holdings (MRPC) were under common control for the purposes of air emissions permitting. OCLC challenged that determination under subsection 307(b)(1) of the Clean Air Act. See 42 U.S.C. § 7607(b) (providing for judicial review of any "final action" by the EPA). The EPA moved to dismiss for lack of subject matter jurisdiction. The Appeals Court granted the EPA motion.
    The Appeals Court ruled, "the EPA's common control determination is not "final action" within the meaning of 42 U.S.C. § 7607(b). Therefore, we lack jurisdiction to hear OCLC's petition for review, and grant the motion to dismiss it."
    Access the complete opinion (click here).

California Wilderness Coalition v. US Department of Energy

Feb 1: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 08-71074, 08-71823, 08-71829, 08-71831, 08-71845, 08-71870, 08-71872, 08-71884, 08-71908, 08-72423, 08-72644, 08-72835. In this case Petitioners including The Wilderness Society, Natural Resources Defense Council, California Wilderness Coalition, and many more environmental organizations, combined with Petitioner states including Pennsylvania, New Jersey, and Virginia; with Respondents United States Department of Energy and many Respondents-Intervenors including Allegheny Energy, Inc., American Public Power Association, Edison Electric Institute, Monongahela Power Company, and many more -- thirteen petitions in all for review challenge the Department of Energy's (DOE) implementation of the Energy Policy Act of 2005 (EPAct), which added a new section 216 to the Federal Power Act (FPA), codified as 16 U.S.C. § 824p (sometimes referred to as § 216).
    Petitioners offer three distinct challenges to DOE's actions: (1) DOE failed to consult with the affected States in undertaking the Congestion Study as required by § 824p(a)(1); (2) DOE failed to properly consider the potential environmental consequences of its designation of national interest electric transmission corridors (NIETCs); and (3) DOE's actual designations of the Mid-Atlantic Area National Corridor and the Southwest Area National Corridor are arbitrary, capricious, and not supported by the evidence.
    The Appeals Court in a split decision ruled, "We determine that DOE failed to properly consult with the affected States in conducting the Congestion Study and failed to undertake any environmental study for its NIETC Designation as required by the National Environmental Protection Act (NEPA), 42 U.S.C. § 4332(C). We also determine that these failings were not harmless errors. Accordingly, we vacate the Congestion Study and NIETC designation and remand the cases to the DOE for further proceedings. Because we vacate the NIETC designation, we do not consider the merits of petitioners' challenges to the specific national corridors other than as necessary to determine that DOE's failures to consult and to undertake an environmental study were not harmless errors."
    In the dissent, one Justice indicates, "This is a tale of two errors. First, the DOE erred by not consulting with affected states at the threshold of a massive, yearlong, nationwide study of electric transmission congestion. But this error was harmless. Petitioners have not shown that DOE's error prevented them from submitting information or making arguments to DOE, nor have they shown that DOE would have made a different decision absent the error. In short, they have failed to offer even a scintilla of evidence to establish prejudice. Under controlling Supreme Court precedent, therefore, we must uphold DOE's actions. Shinseki v. Sanders, 129 S.Ct. 1696, 1704-06 (2009).
    "But here is where the second error comes in, namely, the majority's ruling that DOE must complete the entire process again even though its consultation error caused no harm. Instead of recognizing that Sanders rejected the presumption of prejudice articulated in Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir. 1992), the majority employs this discredited approach to nullify DOE's efforts. In doing so, the majority inflicts the only real injury in this saga. I respectfully dissent."
    Access the complete opinion and dissent (beginning page 70 of 88) (click here).

Chico Service Station, Inc. v. Sol Puerto Rico Ltd.

Jan 26: In the U.S. Court of Appeals, First Circuit, Case No. 10-1200. Appealed from the U.S. District Court of Puerto Rico, San Juan. As explained by the Appeals Court, "This appeal requires us to assess the propriety of Burford abstention in a citizen suit under the federal Resource Conservation and Recovery Act (RCRA). Appellants Chico Service Station, Inc. and José Chico brought the suit in an effort to force the cleanup of contamination caused by leaking underground storage tanks (USTs) at a former gasoline filling station. Their citizen suit represents the latest in a long-running series of proceedings aimed at addressing contamination at the site. In addition to an investigatory proceeding at the Puerto Rico Environmental Quality Board (EQB) that has been ongoing since leaks were discovered in the early 1990s, appellants have filed two lawsuits in commonwealth courts over the past decade related to the contamination of the site."
    The Appeals Court said, "The pendency of these parallel state administrative proceedings led the district court to abstain from hearing the appellants' federal citizen suit, ordering dismissal on the authority of Burford v. Sun Oil Co., 319 U.S. 315 (1943). Application of the Burford abstention doctrine to RCRA citizen suits is an issue of first impression in this circuit. On careful
consideration, we find abstention to be inappropriate, and we therefore vacate the district court's judgment."

    In summary the Appeals Court said, "The circumstances that can sustain a federal court's abstention from the duty to exercise jurisdiction are rare. This is particularly true for citizen suits brought under RCRA. In light of the important federal interests at stake and the care with which Congress delineated the situations in which RCRA citizen suits will be barred, only exceptional circumstances could justify abstention. Because such circumstances are not present here, the district court erred in abstaining. Moreover, we conclude that neither the diligent prosecution bar nor mootness can independently support the district court's dismissal of Chico's suit. We must therefore vacate the judgment of the district court. Costs shall be awarded to the appellants."

    Access the complete opinion (click here).