Thursday, May 5, 2011

SEACC v. State of Alaska

May 4: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35551. Appealed from the United States District Court for the District of Alaska. The issue in this environmental case is whether the district court properly ordered the State of Alaska to consider improving existing ferry service between Juneau and the communities of Haines and Skagway before proceeding with expensive construction of a new ferry terminal and highway through a national forest. In a split decision, the Appeals Court held that the district court was correct under settled environmental law in its judgment in favor of Southeast Alaska Conservation Council and five other groups (collectively, SEACC) in their suit against the Federal Highway Administration (FHWA), the Department of Transportation, the Forest Service, the Department of Agriculture, and individual federal officials. 
    Intervenor State of Alaska appeals the district court's decision and argues the district court erred in holding that the Environmental Impact Statement (EIS) issued by the FHWA for the Juneau Access Improvements Project violated the National Environmental Policy Act (NEPA) by failing to consider as a project alternative any plan that would improve existing ferry services in Lynn Canal, Alaska, without the construction of new roads, ferries, or terminals. The district court vacated the FHWA's Record of Decision (ROD), which approved Alaska's preferred alternative for the project, and enjoined all construction and activities that depended on the issuance of a valid EIS, until one was prepared.
    The majority Appeals Court said the FHWA EIS "contains no analysis of ferry service to other areas, or of how the assignment of additional vessels to Lynn Canal would affect service elsewhere. Therefore, it does not provide any reasoned support for the FHWA's position that reassigning vessels was not a reasonable alternative that required detailed consideration in the EIS." Further, the majority said, "The district court therefore properly concluded that it was arbitrary for the FHWA to refuse to consider reassigning vessels as a project alternative on the basis that it would increase costs and reduce services elsewhere when the chosen project alternative could have been rejected for the same reason. By failing to examine a viable and reasonable alternative to the proposed project, and by not providing an adequate justification for its omission, the EIS issued by the FHWA violated NEPA."
    The dissent Justice indicated, "The majority holds that the final environmental impact statement prepared by the State of Alaska and the Federal Highway Administration violates the National Environmental Policy Act. . . by failing to consider certain alternatives to the State's proposed plan to improve surface transportation to Juneau, Alaska. I respectfully dissent. . . Accordingly, the question in this case is not whether the final EIS prefers the wrong alternative, but rather whether it considers a reasonable range of alternatives."
    He argues that, "The majority holds that the final EIS fails to consider certain alternatives for improving surface transportation to
Juneau. According to the majority, the final EIS does not consider the possibility of improving ferry service by maximizing the use of existing infrastructure. . .In my view, however, the final EIS includes just such an alternative: the No Action Alternative. . ."
    Access the complete opinion and dissent (click here). [*Transport]

USA v. George A. Whiting Paper Company

May 4: In the U.S. Court of Appeals, Seventh Circuit, Case No. 10-2480. Appeal from the United States District Court for the Eastern District of Wisconsin. In 2009, the United States and the State of Wisconsin (the Governments) filed suit in Federal district court against eleven of the potentially responsible parties (PRPs) in an environmental cleanup, seeking response costs under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA). Shortly thereafter, the Governments filed notice of a de minimis consent decree pursuant to CERCLA § 122(g). Eventually, the Governments moved for settlement. Appleton Papers Inc. and NCR Corporation intervened.
    The district court granted the settlement motion over the intervenors' opposition. Later, the Governments moved for a de minimis settlement with a twelfth defendant, and the district court granted this motion. Appleton and NCR appealed the grant of both settlement motions. The Appeals Court affirmed the district court decision.
    By way of background, the case involves the Fox River in Wisconsin which is heavily contaminated with Polychlorinated biphenyls (PCBs). Appleton and NCR are responsible for much of the PCBs. They contributed significant amounts of Aroclor 1242, the most prevalent PCB in Fox River. The river also contains other PCBs, including Aroclor 1254 and Aroclor 1260. Appleton, NCR, and a few other PRPs are currently paying to clean up Fox River in compliance with a 2007 U.S. EPA order. Appleton and NCR are seeking contribution, in a separate suit, from many other PRPs.
    On one of the major issues in the case, i.e. the "rational basis" of the settlement, the Appeals Court said, "The district court concluded the consent decrees were substantively fair. Appleton and NCR argue that this conclusion has no rational basis in the record. A consent decree is substantively fair if its terms are based on comparative fault. . . The calculation of comparative
fault 'should be upheld unless it is arbitrary, capricious, and devoid of a rational basis.' Cannons Eng'g, 899 F.2d at 87 ('[W]hat constitutes the best measure of comparative fault . . . should be left largely to the EPA's expertise.')."
    The Appeals Court said, "Rarely does an appellate court conclude the district court had no factual basis to approve a consent decree. Appleton and NCR can point to only one such holding. . . We need not decide whether an unsupported estimate would be a sufficient factual basis to affirm a consent decree -- the Governments' estimate here has adequate support in the record." Other legal issues addressed by the Appeals Court in the opinion included: Consideration of non-1242 Aroclors; Unresolved Issue of Divisibility; Insufficient Discovery; and Improper Consideration of Equitable Factors.
    Access the complete opinion (click here). [*Remed]