Thursday, September 8, 2011
Sep 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-55361 and 10-55404. Appealed from the United States District Court for the Central District of California. The Appeals Court indicates that the dispute emerges from a web of state and Federal litigation over liability for damages and defense costs in certain environmental tort suits.
The Appeals Court said, "The appeal before us concerns two cases that mirror each other: (1) an action for damages that the Appellants brought in federal court and (2) a declaratory judgment action that the Appellee brought in state court, which Appellants later removed to federal court. The district court declined to entertain these actions, by dismissing the former and remanding the latter, in light of a related third action that had been pending for several years in state court.
"We must examine the propriety of this decision. Considering the particular circumstances of this case, we conclude that the district court had discretion under Wilton v. Seven Falls Co., 515 U.S. 277, 289-90 (1995), and Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942), to remand the declaratory judgment action, and that the action for damages fell within the scope of Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). We therefore affirm."
The case involves Vulcan Materials Company (Vulcan) which manufactures a drycleaning solvent called perchloroethylene (PerSec). Between the 1960s and the 1990s, R.R. Street & Co. Inc. (Street) distributed PerSec. During this time, Vulcan named Street as an additional insured under its insurance policies, including an excess liability coverage policy that Transport Insurance Company (Transport) issued to Vulcan in 1981 (the 1981 Policy). Since the 1990s, a number of lawsuits have been filed against Vulcan and Street alleging damage caused by the sale, distribution, use or handling of PerSec (collectively the Tort Actions). Street and Vulcan separately defended these actions. Since 2005, the companies and their insurers have engaged in an ongoing dispute over liability for damages and defense costs in the Tort Actions.
The Appeals Court concludes, "We do not take lightly the district court's decision not to entertain an action for damages. In this case, however, the district court did not abuse its discretion by deciding that the parties' claims should be resolved in the more comprehensive Vulcan Action. The district court had discretion under Wilton/Brillhart to remand the Removed Action, and the court's concerns about piecemeal litigation and interfering with the progress made in the Vulcan Action sufficiently supported dismissal under Colorado River."
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Posted by JPMcJ at 4:28 PM
Aug 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-70718. On Petition for Review of an Order of the Federal Aviation Administration. Petitioners Michelle Barnes, Patrick Conry, and Blaine Ackley (collectively, petitioners) challenge an order of the Federal Aviation Administration (FAA) concerning the proposed construction by the Port of Portland (the Port) of a new runway at Hillsboro Airport (HIO). The FAA issued a Finding of No Significant Impact (FONSI), thus relieving the agency of preparing an Environmental Impact Statement (EIS). Petitioners argue that the decision not to prepare an EIS was unreasonable for several reasons, chief among them the FAA's failure to consider the environmental impacts of any increased demand for HIO resulting from the addition of a runway. Petitioners also argue that the FAA did not afford them a public hearing within the meaning of 49 U.S.C. § 47106.
In a split opinion the Appeals Court majority granted the petition and remanded the case to the FAA with instructions to consider the environmental impact of increased demand resulting from the HIO expansion project, if any, pursuant to 40 C.F.R. § 1508.8(b). HIO is located in the city of Hillsboro in Washington County, Oregon, 12 miles west of downtown Portland. The Port of Portland assumed ownership of HIO in 1966. In 2008, HIO become Oregon's busiest airport, surpassing Portland International Airport (PDX) in number of airport operations.
The dissenting justice said, "It is conventional wisdom among aviators that 'when the weight of the paper equals the weight of the airplane, only then you can go flying.' The majority confirms the truth of this quotation: here a federal agency is trying to reduce airport delays and the concomitant negative environmental effects by commencing a project in anticipation of future growth, and
the majority sides with delay and air pollution by imposing pointless paperwork on the agency before the necessary project can go forward. Because the majority's approach is contrary to our case law and the facts, I dissent."
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Posted by JPMcJ at 4:27 PM
Aug 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35646. Appealed from the United States District Court for the Eastern District of Washington. The Appeals Court explains that Lake Roosevelt in eastern Washington state serves a variety of purposes, including irrigation, navigation, flood control, power generation, recreation, and fish management. The Appeals Court considered a challenge by environmental groups to a proposed incremental drawdown of water from the lake.
The Appeals Court indicates that the review under the National Environmental Policy Act (NEPA) is limited to determining whether the agency, in this case the United States Bureau of Reclamation (Reclamation), took a "hard look" and genuinely scrutinized the environmental consequences of its proposed action. The Appeals Court said, "Our own close look at the record persuades us that Reclamation was keenly aware of, and appropriately discharged, this duty when it prepared the drawdown project analysis."
According to the Appeals Court, the district court granted summary judgment to the defendants (Reclamation), holding that "the NEPA documents at issue" -- including Ecology's PEIS and SEIS as well as Reclamation's EA -- "thoroughly account for the history of development in the region and the project's cumulative impacts thereto," that the agencies' "analysis of indirect impacts complies with NEPA," that the EA's discussion of alternatives was sufficient in light of the "long collaborative process between [various] stakeholders" that led to the drawdown project, and that because Reclamation "retained the discretion [in the EA] to move forward with the project or not," its NEPA review was timely.
The Appeals Court ruled, "Significantly. . . Reclamation has committed itself to scrutinizing the cumulative effects of the Special Study with the drawdown project before implementing any action resulting from the Special Study. Under our precedents and the circumstances presented here, this procedure does not violate NEPA. Our review reveals no other deficiencies in the substance of the EA, and although Reclamation took several steps toward implementing the drawdown project before drafting the EA, it scrupulously adhered to NEPA's timing requirements. We therefore affirm the district court."
Access the complete opinion (click here). [#Water, #CA9]
Posted by JPMcJ at 4:25 PM