Southern Alliance for Clean Energy v. Duke Energy

Apr 14: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 08-2370, 09-1928, & 09-2113. Appealed from the United States District Court for the Western District of North Carolina, at Asheville.

In this Clean Air Act case, Duke Energy Carolinas, LLC (Duke Energy) challenges an attorneys' fees award by attacking the nature of the victory supporting the award, as well as the merits order on which the fee award was based -- summary judgment in favor of environmental group Plaintiffs Southern Alliance for Clean Energy, Environmental Defense Fund, National Parks Conversation Association, Natural Resources Defense Council, and the Sierra Club (Plaintiffs).

 

    With its summary judgment victory, Plaintiffs forced Duke Energy to submit to administrative evaluations by the North Carolina

state regulators who administer the Clean Air Act. Those administrative proceedings constituted some success and thus supported an award of attorneys' fees under the Clean Air Act. The Appeals Court said, ". . .nothing this Court might hold with regard to the merits of the summary judgment determination could undo those proceedings or nullify Plaintiffs' success. We therefore affirm the district court's fee award."

 

    The Appeals Court said further, "Because Duke Energy's merits arguments are irrelevant to our determination that Plaintiffs achieved some success supporting the fee award -- the reversal of which is Duke Energy's sole goal on appeal -- we need not reach them. We hold that Plaintiffs' successes properly supported the award of attorneys' fees and costs and affirm the district

court."

 

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

Yankee Gas Services Co. v. UGI Utilities., Inc.

Apr 13: In the U.S. Court of Appeals, Second Circuit, Case No. 10-1570. Appealed from the United States District Court for the Eastern District of New York. Plaintiffs Yankee Gas Services Company and The Connecticut Light and Power Company (CL&P), current owners of the sites of thirteen former manufactured gas plant facilities (MGPs) in Connecticut, sued defendant UGI Utilities, Inc. (UGI), the alleged past operator of the MGPs, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), to recover plaintiffs' costs in responding to MGP pollution from the period 1884 to 1941. Plaintiffs appealed from a judgment in favor of defendant entered after a bench trial at which the district court determined that UGI was not an operator of nine of the MGPs under the standard set forth in United States v. Bestfoods, 524 U.S. 51 (1998), and that the statute of limitations had run with respect to two of those nine MGPs.

 

    In a ruling by summary order, that does not have precedential effect, the Appeals Court said, "Because we identify no error of law or fact in the district court's operator determination, we affirm the judgment on that basis and need not address its limitations conclusion." The Appeals Court said further, ". . .we have reviewed the trial record, the district court's meticulous and well-reasoned opinion, and the parties' arguments on appeal, and we identify no legal error or clear factual error in the determination that UGI was not an operator of the subject MGPs during the period in question. . . Accordingly, we identify no error of law or fact in the district court's finding 'that Plaintiffs have failed to prove by a preponderance of the evidence that UGI and CL&P conducted operations at the MGPs in some sort of joint venture or joint undertaking, and that UGI's involvement with the individual MGPs was consistent with its role as an investor and shareholder of, and consultant to, CL&P.'"

 

    Access the complete order (click here). [*Remed]

Sierra Club v. U.S. Army COE

Apr 8: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 10-13613. An unpublished opinion appealed from the United States District Court for the Middle District of Florida. Intervenor Defendant-Appellant Mosaic Fertilizer, LLC (Mosaic), a phosphate mining company engaged in significant operations in Hardee County, Florida, appealed the order by the district court remanding a mining-permit issued by the United States Army Corps of Engineers (Corps) back to the agency and further enjoining Mosaic from conducting operations approved in that permit.

    Specifically, the district court concluded the permit's issuance did not comply with the requirements of the Clean Water Act, 33 U.S.C. §§ 1251-1376, and that the Plaintiff-Appellees had demonstrated they were entitled to preliminary injunctive relief. In this interlocutory appeal, Mosaic argues the district court's order was a de facto determination of the merits of the Clean Water Act issue that exceeded the proper scope of preliminary injunctive relief. Based upon our review of the briefs, and with the benefit of oral argument, we conclude the district court's remand of the permit to the Corps was improper because it was effectively a final judgment on the merits. The district court based the entry of the preliminary injunction entirely on letters from the Environmental Protection Agency which expressed concerns with the permit, and failed to apply the arbitrary and capricious standard in evaluating the Corps' practicable alternatives analysis.

    In a brief, 3-page decision, the Appeals Court ruled, "Based on the limited record before us, and the lack of a response from the Corps on appeal, we are presently no better equipped to resolve this dispute than was the district court. We therefore vacate the preliminary injunction, set aside the remand to the Corps, and remand this case to the district court for consideration on the merits, after receiving the full Administrative Record. Due to the unique circumstances presented by this case, we direct the

district court to stay the issuance of the permit for 90 days from the date of this order to permit the district court to proceed to a merits determination on the full record."

 

    Access the complete opinion (click here). [*Water]

Rhodes v. E.I. du Pont de Nemours and Company

Apr 8: In the U.S. Court of Appeals, Fourth Circuit, Case No. 10-1166. Appealed from the United States District Court for the Southern District of West Virginia, at Parkersburg. The Appeals Court indicates that the case arose under the district court's diversity jurisdiction and involves the contamination of a public water supply in Parkersburg, West Virginia. The Appeals Court considered whether the plaintiffs, individuals who consumed the water but have not become ill as a result, demonstrated an injury sufficient to survive summary judgment on certain West Virginia common law tort claims. The Appeals Court also reviewed the district court's rulings denying class certification of those claims under Federal Rule of Civil Procedure 23(b). And, finally, the Appeals Court decided whether the plaintiffs, who obtained voluntary dismissals in the district court of their individual claims for medical monitoring, have standing to pursue an appeal of the district court's denial of class certification of those claims.

    The facts and procedural history in the case indicate that for an extended period of time, DuPont's plant discharged perfluorooctanoic acid (PFOA) into the environment surrounding the Parkersburg City Water Department plant. Measurable quantities of PFOA were detected in the water that is pumped by the Water Department into the plaintiffs' residences. PFOA also has accumulated in the plaintiffs' blood and has been detected in the homes of other customers of the Water Department.

 

    The plaintiffs asserted six common law claims, individually and on behalf of a class of customers of the Water Department, addressing the contamination of their municipal water supply and the resulting presence of PFOA in their blood. The plaintiffs sought damages with respect to claims of negligence, gross negligence, battery, trespass, and private nuisance. The plaintiffs also sought injunctive relief to obtain long-term diagnostic testing (medical monitoring) for latent diseases on behalf of a class of Water Department customers exposed to PFOA beginning in 2005. Additionally, the plaintiffs asserted individual and class claims for medical monitoring, a common law tort first recognized by the West Virginia Supreme Court of Appeals in 1991.

 

    The Appeals Court dismissed the plaintiffs' claim challenging the district court's denial of their class certification request for the medical monitoring claims, and affirmed the balance of the district court's judgment. The Appeals Court said, "In conclusion, we affirm the district court's award of summary judgment to DuPont on all the plaintiffs' traditional common law tort claims, namely, the claims of negligence, gross negligence, battery, trespass, private nuisance, and public nuisance. We do not address the separate matter of the district court's denial of class certification of these traditional common law tort claims as these issues are now moot. Finally, we dismiss the plaintiffs' appeal of the district court's class certification ruling on their medical monitoring claims for lack of jurisdiction."

 

Access the complete opinion (click here). [*Toxics, *Drink]