San Juan Citizens Alliance vs. Stiles (USDA & DOI)

Jul 21: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1259. Appealed from the U.S. District Court for the District of Colorado. The appeal concerns the Northern San Juan Basin Coal Bed Methane project (the Project), which has been approved by the United States Forest Service (the Forest Service) and the Bureau of Land Management (the BLM). The Project contemplates the construction of numerous gas wells within the San Juan National Forest (the Forest) and on other federal lands. San Juan Citizens Alliance and four other environmental advocacy groups (collectively, SJCA) filed suit in the United States District Court for the District of Colorado against the Forest Service, the BLM, and four government officials (collectively, the Federal Defendants) for alleged violations of the National Forest Management Act (NFMA), and the National Environmental Policy Act (NEPA).

 

    The suit contends that the 2007 record of decision (ROD) approving the Project was unlawful. Several companies holding valid leases in the area and interested in drilling for gas (the Lessees) were permitted to intervene as additional defendants. The district court entered judgment in favor of the defendants. SJCA argues on appeal that the Project violates the NFMA because it is inconsistent with provisions of the San Juan National Forest Plan (the Forest Plan) protecting old-growth ponderosa pine forests, wildlife habitat, and riparian areas, and that the ROD approved individual wells under the Project that violate the Forest Plan's standards and guidelines protecting riparian areas.

 

    It further argues that the Federal Defendants violated NEPA in two respects when they prepared an environmental impact statement (EIS) assessing the Project's environmental consequences: (1) the EIS did not adequately analyze the Project's

effects on the Forest's riparian areas, offering only perfunctory references to mitigation measures without evaluating how those measures could correct Forest Plan violations; and (2) the Federal Defendants did not include several nearby national parks and wilderness areas in its cumulative-impact analysis of the Project's effects on air quality and visibility.

 

    The Appeals Court affirmed in part and remanded in part saying the ripeness doctrine precludes us from addressing the merits of any of SJCA's challenges to the Project under the NFMA. A claim that the Project is inconsistent with the Forest Plan is not ripe until that inconsistency leads to the improper approval of a specific well (or associated construction). . . Because SJCA's NFMA claims that the Project is inconsistent with the Forest Plan are not ripe, we remand to the district court to vacate its judgment on those claims and to dismiss them without prejudice.

 

    The Appeals Court also ruled, "As for SJCA's NEPA claims, we reject them on the merits. First, the EIS's discussion of riparian-area mitigation measures is more than adequate to satisfy NEPA. An EIS assessing environmental consequences at the programmatic stage of a multi-step development project can properly discuss mitigation measures in general terms when the specifics of possible well locations are still uncertain, leaving for later a more complete analysis of environmental consequences associated with permitting a particular well site. Second, the Federal Defendants' decision on which public lands to include in the cumulative-impact analysis of air quality was a reasonable choice involving technical and scientific matters within their areas of expertise."

 

    Access the complete opinion (click here). [#Energy/NatGas, #Land, #CA10]

 

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Conservation Force v. Salazar

Jul 22: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-15306. Appealed from the United States District Court for the Northern District of California. This case involves the seizure and administrative forfeiture of two leopard trophies by the United States Fish and Wildlife Service (FWS) from two hunters, Patricio Miguel Madero Blasquez and Colin Crook (plaintiffs), who attempted to import the leopard trophies from African countries without proper export permits. Plaintiffs and Conservation Force, a nonprofit entity, filed suit against Federal defendants Ken Salazar (Secretary of the Department of the Interior), Rowan Gould (Director of FWS), Daniel Shillito (Regional Solicitor for the Department of the Interior), Carolyn Lown (Regional Assistant Solicitor for the Department of the Interior), and the FWS asserting that the administrative forfeiture of their leopard trophies violated the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), the Eighth Amendment Excessive Fines Clause, and the Due Process Clause. The Appeals Court affirmed the district court's dismissal of plaintiffs' CAFRA and constitutional claims.

 

    The Appeals Court explained further, "In this case, the district court properly held that plaintiffs' CAFRA claim is barred from judicial review. Plaintiffs received proper notice of the proposed forfeitures. Plaintiffs chose to pursue an administrative path and filed petitions for remission and petitions for supplemental remission. These petitions were reviewed by the Office of the Solicitor and denied. Because plaintiffs chose to pursue administrative remedies, they waived the opportunity for judicial forfeiture proceedings. See 50 C.F.R. § 12.24(a) (expressly providing that remedies are exclusive); Malladi Drugs, 552 F.3d at 889 (holding that the remedies are exclusive); Cole v. United States (In re $844,520), 136 F.3d 581, 582 (8th Cir. 1998) (per curiam) (holding that the remedies are exclusive). Accordingly, as it properly held, the district court properly dismissed the action."

 

    Access the complete opinion (click here). [#Wildlife, #CA9]

Lake Carriers' Association v. U.S. EPA

Jul 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1001, consolidated with 09-1010, 09-1076, 09-1115. On Petitions for Review of a Final Action of U.S. EPA. Trade associations representing commercial ship owners and operators petition for review of a nationwide permit issued by U.S. EPA for the discharge of pollutants incidental to the normal operation of vessels. The petitioners raise a number of procedural challenges, all related to EPA's decision to incorporate into the permit, conditions that states submitted to protect their own water quality. The Appeals Court rules, "Because we find that the petitioners have not shown that the additional procedures they request would have had any effect on the final permit, we deny the petition for review."

 

    The Appeals Court explains the background saying Shortly after the CWA was enacted, EPA promulgated a regulation exempting incidental vessel discharges from the permitting (and therefore the certification) requirements of the Act. Exempted discharges included "sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel." 40 C.F.R. § 122.3(a). The regulation was in force for more than thirty years. Then, in 2008, the Ninth Circuit affirmed a district court decision vacating the regulation, finding that EPA lacked authority to exempt incidental vessel discharges. Northwest Envtl. Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008) [See WIMS 7/24/08]. After a stay to allow EPA time to implement a means of issuing permits for vessel discharges, the regulation was finally vacated on

February 6, 2009.

 

    In response to the Ninth Circuit's decision, EPA developed a general permit, pursuant to section 402 of the CWA, to cover the incidental vessel discharges previously exempted by the regulation. See Final National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel, 73 Fed. Reg. 79,473 (Dec. 29, 2008) [See WIMS 12/22/08]. The agency estimated that the Vessel General Permit (VGP) would cover discharges from approximately 61,000 domestic-flagged commercial vessels and 8,000 foreign-flagged vessels. Id. at 79,481. And unlike the majority of permits issued under section 402, which cover discharges originating in only a single state, the VGP would cover discharges in waterways throughout the United States.

 

    On December [29], 2008, EPA's final VGP became effective. Final NPDES General Permit, 73 Fed. Reg. at 79,47[3]. Part VI of the permit, which was not included in the draft VGP, is composed of approximately 100 state certification conditions. U.S. EPA, VESSEL GENERAL PERMIT (VGP) (2008), at 62-104 (J.A. 825-67). Vessels covered by the permit are required to adhere to the general provisions of the VGP with respect to all discharges, and are further required to adhere to any Part VI certification condition imposed by a state into the waters of which the vessel is discharging pollutants.

 

    In 2009, Lake Carriers' Association, Canadian Shipowners Association, and American Waterways Operators filed petitions for review of the final VGP. The petitions were consolidated into the single suit now before us. The trade associations raise three challenges. First, they contend that EPA erred in failing to provide notice and an opportunity for comment on the final VGP, which contained the state certification conditions. Second, they charge that it was arbitrary and capricious for EPA to issue the permit without considering the possible ill-effects of the state certification conditions. Finally, they allege that EPA failed to consider the costs of compliance with state conditions in assessing the impact of the permit on small businesses, as required by the Regulatory Flexibility Act (RFA), 5 U.S.C. § 601 et seq.

 

    The Appeals Court notes in part, ". . .we note that EPA's resolution of this matter does not leave the petitioners without recourse. If they believe that the certification conditions imposed by any particular state pose an inordinate burden on their operations, they may challenge those conditions in that state's courts. . . If they believe that a particular state's law imposes an unconstitutional burden on interstate commerce, they may challenge that law in federal (or state) court. See Am. Trucking Ass'n, 600 F.3d at 628 n.1. And if neither of these avenues proves adequate, they are free to ask Congress to amend the CWA, perhaps by reimposing the exemption for incidental vessel discharges."

 

    The Appeals Court concludes in part, "In sum, given the case law and the arguments that EPA had before it, the agency correctly concluded that it did 'not have the ability to amend or reject conditions in a [state's] CWA 401 certification.' EPA Response to Comments, at 14-11 to 14-12 (J.A. 1062-63) (citing Am. Rivers, Inc. v. FERC, 129 F.3d 99, 107, 110-11 (2d Cir. 1997)). Under those circumstances, providing notice and an opportunity for comment on the state certifications would have served no purpose, and we decline to remand to require EPA to do a futile thing. . . The petitioners' remaining arguments fail for the same reason that their notice-and-comment argument fails. . ."

 

    Access the complete opinion (click here). Access extensive information on the Final Vessel General Permit from U.S. EPA (click here).  [#Water, #GLakes, #CADC]

 

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