Tuesday, May 31, 2011
May 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-16790. Appealed from the United States District Court for the Northern District of California. In 2007, the Monterey Bay Unified Air Pollution Control District (District) adopted and began enforcing rules that regulate diesel-powered engines. In particular, the District's regulatory regime: (1) requires owners and operators to register and pay fees for certain diesel engines used in agricultural operations, and (2) sets emissions standards for stationary diesel engines within the District. The principal question in the case -- among other questions -- is whether the District's rules are preempted by the Federal Clean Air Act (CAA), 42 U.S.C. §§ 7401 et seq. The Appeals Court said, "We hold that the District rules are not preempted, and affirm the district court's judgment on the pleadings in favor of the defendants.
Explaining further its decision, the Appeals Court said, "Jensen advances two theories of 'state preemption' of Rules 220 and 310. Jensen first argues that 'insofar as [Rules 220 and 310] were issued pursuant to Cal. Code Regs. tit. 17, § 93116, they are preempted.' Because Rules 220 and 310 were issued pursuant to Cal. Health and Safety Code §§ 39656, 39659 and 39666, not Cal. Code Regs. tit. 17, § 93116, there is no basis for Jensen's claim that § 93116 'preempts' Rules 220 and 310. Jensen also argues that Rules 220 and 310 are preempted by Cal. Code Regs. tit. 13, § 2450 et seq. which creates California's 'Portable Equipment Registration Program.' These regulations 'preempt districts from permitting, registering, or regulating portable engines and equipment units . . . except in the circumstances specified in the regulations.' Id. Registration is voluntary and '[i]n the event that the owner of an engine or equipment unit elects not to register under this program, the engine or equipment unit shall be subject to district permitting requirements. . . .' Id. at § 2451(d). Because Jensen has not alleged that it participated in this voluntary program, the Rules are not preempted as applied to Jensen."
Access the complete opinion (click here). [*Land]
Posted by JPMcJ at 4:32 PM
May 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17796 & 10-15026. Appealed from the United States District Court for the Eastern District of California. This high visibility, multiple party case concerns whether the process of establishing management guidelines governing 11.5 million acres of Federal land in the Sierra Nevada region complied with both the procedural requirements of the National Environmental Policy Act (NEPA) and the substantive restrictions of the National Forest Management Act (NFMA). Environmental groups -- Sierra Forest Legacy, the Center for Biological Diversity, the Natural Resources Defense Council, the Sierra Club and the Wilderness Society (collectively Sierra Forest) -- appeal a largely unfavorable summary judgment against them and a favorable but limited remedial order in their NEPA and NFMA suit challenging the 2004 Sierra Nevada Forest Plan Amendment (the 2004 Framework) and the Basin Project, a timber harvesting project approved under the 2004 Framework. The State of California also appeals a summary judgment against it and a limited remedial order in a related NEPA action.
The district court found that the U.S. Forest Service and related federal defendants (collectively the Forest Service) violated NEPA by failing to consider alternative actions using the same modeling techniques and management priorities, but the court rejected several other NEPA and NFMA claims. The district court ordered the Forest Service to prepare a supplemental environmental impact statement (SEIS) to remedy the NEPA error and denied Sierra Forest and California's requests to enjoin implementation of the 2004 Framework in the interim.
Sierra Forest and California argue that the Forest Service violated NEPA both by failing to consider short-term impacts of the 2004 Framework and by failing to disclose and rebut expert opposition. Sierra Forest separately contends that the Forest Service violated NEPA when approving the Basin Project by failing to analyze cumulative impacts to sensitive species. Sierra Forest also argues that the 2004 Framework violates NFMA by failing to maintain viable populations of old forest wildlife. Sierra Forest further argues that the Basin Project specifically violates NFMA by failing to comply with the 2004 Framework's management indicator species monitoring requirement, despite a 2007 Amendment to the 2004 Framework that purports retroactively to eliminate the monitoring requirement. Both Sierra Forest and California also contend that the district court abused its discretion when considering the equitable factors governing entry of a permanent injunction. The Forest Service and numerous intervenors contest these assertions and assert several procedural bars to relief.
In this partially split, fragmented decision a majority Appeals Court affirms the district court's decision on the merits of Sierra Forest and California's NEPA claim. The majority said, "Specifically, we hold that Sierra Forest and California have standing to assert a facial NEPA claim against the 2004 Framework but that the Framework SEIS adequately addressed short-term impacts to old forest wildlife and disclosed and rebutted public opposition. Similarly, we hold that the Forest Service did not violate NEPA when approving the Basin Project because the Forest Service adequately addressed cumulative impacts of the proposed management action. And we hold that the Forest Service violated NEPA by failing to update the alternatives from the 2001 Framework SEIS to reflect new modeling techniques used in the 2004 Framework SEIS. We vacate, however, the district court's orders granting a limited remedy and remand for reconsideration of the equities of a 'substantive' injunction without giving undue deference to government experts."
However, as the Appeals Court notes, "There are thus four separate opinions in this case. First, a NEPA opinion written by Judge Fisher and joined by Judge Reinhardt appears as Parts I-VI of the decision. Second, a NFMA opinion written by Judge Reinhardt appears as Part VII. Third, a dissent by Judge Fisher on the NFMA issue follows Part VII. Fourth, an opinion by Judge Noonan concurring in the result on the NFMA issue, and dissenting from the NEPA opinion, concludes the decision."
Access the complete opinion, concurrence and dissents (click here). [*Land]
Posted by JPMcJ at 4:30 PM