Friday, January 27, 2012

Chevron v. Naranjo

Jan 26: In the U.S. Court of Appeals, Second Circuit, Case Nos. 11-1150 - 11-1264. Defendants-appellants – residents of the Ecuadorian Amazon and their American attorney – challenge a preliminary injunction issued by the district court that prohibited them from enforcing or preparing to enforce a potential Ecuadorian judgment against plaintiff-appellee anywhere outside of the Republic of Ecuador. The Appeals Court ruled, "Because New York's Uniform Foreign Country Money-Judgments Recognition Act, N.Y. C.P.L.R. §§ 5301-5309, does not authorize affirmative relief of this kind, but only recognizes a defense available when a would-be judgment-creditor first attempts enforcement in New York, we vacate the injunction and remand to the district court with instructions to dismiss the plaintiff-appellee's complaint."
    The Appeals Court provides the background saying, "This appeal represents the latest chapter in the ongoing litigation between plaintiff-appellee Chevron Corp. (Chevron) and the defendants-appellants, elsewhere known as the Lago Agrio Plaintiffs (LAPs or Ecuadorians) and their American attorney Steven Donziger. Chevron brought the present action in part under New York's Uniform Foreign Country Money-Judgments Recognition Act (the Recognition Act), N.Y. C.P.L.R. §§ 5301-5309, which allows judgment-creditors to enforce foreign judgments in New York courts, subject to several exceptions. Chevron, a potential judgment-debtor, sought a global anti-enforcement injunction against the LAPs and Donziger prohibiting the latter from attempting to enforce an allegedly fraudulent judgment entered by an Ecuadorian court against Chevron."
    The Appeals Court explained its decision further in its conclusion saying, "We have considered all of the parties' remaining arguments on appeal and find them to be either rendered moot by our disposition of this appeal or to pertain to litigation that is not properly before us. Accordingly, for the foregoing reasons and consistent with our September 19, 2011 order, the judgment of the district court is reversed and the preliminary injunction vacated. We remand to the district court with the instruction to dismiss Chevron's claim for injunctive and declaratory relief under the Recognition Act in its entirety."
    Access the complete opinion (click here). [#Remed, #CA2]

Thursday, January 26, 2012

Julie Weiss v. Secretary U.S. Department Of Interior

Jan 25: In the U.S. Court of Appeals, Sixth Circuit, Case No. 10-1313. Appealed from the Western District of Michigan at Grand Rapids. The case is part of a broad redevelopment scheme in Benton Harbor, Michigan, where the city government leased part of its Jean Klock Park to a developer, Harbor Shores Community Redevelopment, Inc., for conversion into a golf course. In exchange, the City received other land that the developer agreed to improve and incorporate into a system of trails. Julie Weiss and other Park users sued the City and two Federal agencies, the National Park Service and the Army Corps of Engineers, that had approved the project. The district court granted summary
judgment to the defendants on some of Weiss's claims and dismissed others for lack of standing.
    The Appeals Court explains, "Julie Weiss and other concerned citizens sued to stop a development project that she says has caused environmental damage. The district court rejected her challenges. We affirm as to some of Weiss's claims and hold that we are without power to decide the others."
    The Appeals Court indicated further that the district court held that Weiss lacked standing for certain claims. "We agree as to one" i.e. that the land exchange violated the Land and Water Conservation Fund Act regarding the market-value provision of the Act requires the substitute "recreation properties" to have "at least equal fair market value" as the leased park. The appeals Court said Weiss "lacks standing to assert her market-value claim under the Land and Water Conservation Fund Act." However, the Appeals Court said, "The district court erred, however, in concluding that Weiss lacked standing for another of her claims: that the land swap did not 'accord with' Michigan's Outdoor Recreation Plan. . . Weiss has standing to assert this claim."
    The Appeals Court explains, however, "Weiss must also show that her claims are not moot. The agencies argue that 'events have taken place during the pendency of the appeal that make it impossible' for our court to grant 'effective relief' on many of Weiss's claims. . . Weiss originally sought to halt the development project and have it declared illegal, but the project is now largely finished. (The district court denied Weiss's motion for a temporary restraining order and preliminary injunction, and Weiss chose not to appeal the denial.) The golf course is now constructed and open. The new parkland has been completely, or almost completely, improved. Therefore, the agencies say, the damage (to the extent there is any) has already been done; we are without power to stop it."
    The Appeals Court said, "Weiss might as well ask a meteorologist on Friday to redo the Thursday forecast. Her claims under the National Environmental Policy Act are moot. For similar reasons, Weiss's claims under the National Historic Preservation Act are also moot. . . Weiss is left with two claims that we can adjudicate. Both concern the National Park Service's compliance with other provisions of the Land and Water Conservation Fund Act." First, Weiss says that the National Park Service acted arbitrarily in finding that the new parkland that the City received in the land swap had a "usefulness and location" that was "reasonably equivalent" to the leased portion of the Park. Weiss also claims
that the project was not "in accord with" Michigan's Outdoor Recreation Plan, which divergence would violate the Act.
    On the first issue, the Appeals Court indicates that "Weiss's claim failed on the merits." On the second claim, the Appeals Court said, "The Service did not act arbitrarily in finding that exchanging underused parkland for new trails was consistent with Michigan's Comprehensive Outdoor Recreation Plan." Finally, the Appeals Court rules, "We vacate the district court's judgment on Weiss's National Environmental Policy Act and National Historic Preservation Act claims, and remand with instructions to dismiss those claims as moot. We otherwise affirm."
    In a press release commenting on the decision, Terry Lodge, attorney for the plaintiffs said, "We're perplexed that the court mentioned nowhere in its opinion the serious toxic contamination of five of the seven (7) parcels of land traded to the public to make up for the loss of the acreage on the crests of the Jean Klock Park dunes. Harbor Shores' own consultant report suggests that only the thick concrete and wood-chip paths across the parcels, which the consultant calls 'isolation zones,' will be safe for families and children to use. The City, Harbor Shores, and ultimately the National Park Service all completely failed to tell the public before the deal was sealed that 5 of the 7 parcels of supposed new parkland have serious poisons oozing to the surface and polluting the Paw Paw River, and they did not explain how that economically-worthless acreage was a fair trade for the spectacular and unpolluted Lake Michigan overlooks of Jean Klock Park."
    LuAnne Kozma, an activist formerly with Defense of Place, now with Public Park Advocates and a member of the plaintiffs' legal team, noted, "It is a travesty that the National Park Service argued this case to trade historic Jean Klock Park land, with its half-mile of Lake Michigan lakefront and dunes, for worthless, contaminated parcels inside a private golf course. Now that the National Park Service got the decision it wanted, it must watch over the contaminated Harbor Shores parcels 'in perpetuity' as public parkland. But 'in perpetuity' means nothing any longer. The public in Benton Harbor has lost a park that was precious and priceless. What has been lost to everyone in the U.S. is the idea that parks are to be protected forever.'" The plaintiffs said they have not determined whether they will take the matter to the U.S. Supreme Court, or not. 
    Access the complete opinion (click here). Access a release from the Plaintiffs with links to related information (click here). Access the Protect JKP website(click here). [#Land, #MILand, #CA6]

Monday, January 23, 2012

Sierra Club v. EPA

Jan  20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-71457 and 10-71458. On Petition for Review of an Order of U.S. EPA. The Appeals Court explains that Sierra Club and several environmental groups, (collectively, Petitioners), petition for review of U.S. EPA's approval of the 2004 State Implementation Plan (2004 SIP) for the San Joaquin Valley's nonattainment area for the one-hour ozone National Ambient Air Quality Standard (NAAQS). Petitioners contend that: 1) EPA acted arbitrarily and capriciously, in violation of the Administrative Procedures Act (APA), by approving the 2004 SIP knowing that the emissions inventory data on which the plan relied were, as an actual matter, outdated and inaccurate by the time EPA approved the plan in 2010; 2) EPA violated the Clean Air Act (CAA) by approving the 2004 SIP because the emissions inventory data on which it relied were outdated and inaccurate within the meaning of the statute; 3) EPA violated the CAA by approving the 2004 SIP without the inclusion of the State-adopted regulations on which the plan relied; and 4) EPA violated the CAA by approving the 2004 SIP knowing that attainment of the one-hour ozone NAAQS by the 2010 deadline was impossible.
    The Appeals Court held that EPA's 2010 approval of the 2004 SIP, which was based on data current only as of 2004, was arbitrary and capricious. The Appeals Court indicated that no other issued need be decided. The Appeals Court concluded, "Our role is not to substitute our conclusions based on the facts presented for those of the agency, and we express no opinion as to what conclusion EPA should have reached, with respect to the validity of the 2004 SIP, upon consideration of the 2007 data. But we should not silently rubber stamp agency action that is arbitrary and capricious in its reliance on old data without meaningful comment on the significance of more current compiled data. We hold that EPA's failure to even consider the new data and to provide an explanation for its choice rooted in the data presented was arbitrary and capricious. . . We grant the petition for review and remand the matter to EPA for further proceedings consistent with our decision."
    Access the complete opinion (click here). [#Air, #CA9]

Montana Sulphur & Chemical v. U.S. EPA

Jan 19: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 02-71657 and 08-72642. On Petition for Review of an Order of U.S. EPA. In these appeals, consolidated for decision, the Appeals Court address the propriety of various actions taken by U.S. EPA under the Clean Air Act with respect to Montana air quality from 1993 to 2008.
    In No. 02-71657, Montana Sulphur & Chemical Company (Montana Sulphur) seeks review of the EPA's final rule which partially disapproved a proposed revision to Montana's State Implementation Plan (SIP) governing sulfur dioxide (SO2) emissions. 67 Fed. Reg. 22,168 (May 2, 2002). Montana Sulphur also seeks review of a prior EPA action in 1993 known as a "SIP Call," which preceded the formal SIP revision and started the review process. 58 Fed. Reg. 41,430 (Aug. 4, 1993). The final agency action incorporated documents supporting its SIP Call -- in particular EPA reliance on various modeling calculations -- into the administrative record for partial disapproval of the SIP.
    In No. 08-72642, Montana Sulphur seeks review of the EPA's April 2008 final rule promulgating a Federal Implementation Plan (FIP) for the State of Montana's SO2 emissions. 73 Fed. Reg. 21,418 (April 21, 2008). The FIP is designed to fill perceived gaps the EPA identified in the SIP. This later appeal focuses on the EPA's authority to promulgate the FIP and the reasonableness of certain specific requirements set forth therein.
    The Appeals Court ruled, "Because we conclude that the agency did not act arbitrarily or capriciously with respect to either the SIP or FIP, we deny both petitions for review." The Justices said further, ". . . we conclude the EPA did not act arbitrarily or capriciously or abuse its discretion by making the SIP Call, disapproving portions of the revised SIP, or promulgating the requirements set forth in the FIP. We therefore deny the petition for review in both 02-71657 and 08-72642."
    Explaining further, they said, "The EPA's continued use of the ISC model was not arbitrary or capricious. The model was properly employed at both the time of the state SIP and the proposed FIP. The FIP did not replace the entire SIP, but only the limited portions the EPA had disapproved; because use of a different model could have yielded results that did not comport with the remainder of the SIP, it was not arbitrary or capricious for the EPA to continue with the existing model despite some later technological improvements." Montana Sulphur had argued that the EPA acted arbitrarily and capriciously because it used outdated modeling in the FIP.
    Access the complete opinion (click here). [#Air, #CA9]

Hearts Bluff Game Ranch, Inc. v. U.S.

Jan 19: In the U.S. Court of Appeals, Federal Circuit, Case No. 2010-5164. Appealed from the United States Court of Federal Claims. The Appeals Court explains that Hearts Bluff Game Ranch, Inc. (Hearts Bluff) appeals from the decision of the United States Court of Federal Claims (the Claims Court) dismissing its claim for just compensation under the Fifth Amendment for an alleged taking based on the Army Corps of Engineers' (the Corps') denial of Hearts Bluff's proposal to operate a mitigation bank on its property. Hearts Bluff Game Ranch, Inc. v. United States, No. 09-498L (Ct. Cl. June 11, 2010) (the Order). The Appeals Court ruled, "Because Hearts Bluff did not have a cognizable property interest in obtaining a mitigation banking instrument, we affirm."
    The Appeals Court ruled further, "As for Hearts Bluff's assertion that the denial of the mitigation banking instrument was arbitrary and capricious, that issue is not before us. Hearts Bluff brought suit under the Tucker Act, a concession that the government action was valid. Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993) ('[The] claimant must concede the validity of the government action which is the basis of the taking claim to bring suit under the Tucker Act.'). In order to challenge the legality of the denial of the mitigation banking instrument, Hearts Bluff would have had to sue in a district court under the Administrative Procedure Act. Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997) (The Court of Federal Claims 'lacks the general federal question jurisdiction of the district courts, which would allow it to review [an] agency's actions and to grant relief pursuant to the Administrative Procedure Act.'). It did not."
    Access the complete opinion (click here). [#Water, #CAFed]

System Fuels v. U.S.

Jan 19: In these two separate and related cases in the U.S. Court of Appeals, Federal Circuit, Case Nos. 2008-5025, -5035; and Case Nos. 2010-5116, -5117. Appealed from the United States Court of Federal Claims.
    In the first case, after trial, the United States Court of Federal Claims awarded Plaintiffs-Cross Appellants System Fuels, Inc. and Entergy Arkansas, Inc. (collectively SFI Arkansas or Plaintiffs) damages arising from the Department of Energy's (DOE) partial breach of a contract. System Fuels, Inc. v. United States, 79 Fed. Cl. 37, 40 (2007). The majority Appeals Court said, "Because the trial court properly declined to offset the damages award by the amount of Plaintiffs' one-time fee, this court affirms. On the other hand, this court reverses the trial court's denial of Plaintiffs' capital suspense loader costs. This court also remands the action for analysis in view of this court's decisions in Pacific Gas & Electric Co. v. United States, 536 F.3d 1282 (Fed. Cir. 2008) and Yankee Atomic Electric Co. v. United States, 536 F.3d 1268 (Fed. Cir. 2008)."
    In the second case, on summary judgment, the United States Court of Federal Claims determined that the United States breached its contract with Plaintiffs-Appellants System Fuels, Inc., System Energy Resources, and South Mississippi Electric Power Association (collectively Plaintiffs) for the removal of spent nuclear fuel. Sys. Fuels, Inc. v. United States, 66 Fed. Cl. 722, 732-33 (2005) (SFI I). The trial court also granted summary judgment in favor of the Government regarding the implied covenant of good faith and fair dealing. Id. at 735. The trial court set damages for the breach at $10,014,114 as well as the cost of borrowed funds for financing the construction of the dry fuel storage project. Sys. Fuels, Inc. v. United States, 78 Fed. Cl. 769, 809 (2007) (SFI II). On reconsideration, the trial court reduced damages to $9,735,634 and denied the cost of borrowed funds. Sys. Fuels, Inc. v. United States, 92 Fed. Cl. 101, 114 (2010) (SFI III). The majority Appeals Court ruled, "This court affirms the trial court's denial of borrowing costs and reverses the denial of overhead costs. On damages, this court affirms the trial court's award."
    The majority said further, "Because the trial court properly adhered to the decision of England [England v. Contel Advanced Systems, Inc., 384 F.3d 1372, 1379 (Fed. Cir. 2004)], this court affirms the denial of Plaintiffs' claim for the cost of borrowed funds. This court reverses the trial court's denial of overhead costs. This court affirms the trial court's causation analysis and revised award of nominal damages."
    The dissenting Justice in both cases said, "I concur in the court's opinion and the rulings based thereon, with the exception of the ruling that damages for breach of contract cannot include the cost of financing the construction and storage expenditures required to mitigate the breach. As explained in my dissenting opinion in the companion case, System Fuels, Inc. v. United States, No. 2010-5116, -5117, these costs were incurred solely because of the government's breach of contract, and thus are recoverable as damages for the breach."
    Access the complete opinion in case one (click here). Access the complete opinion in case two (click here). [#Haz/Nuclear, #Energy/Nuclear, #CAFed]

Friday, January 13, 2012

Jon Bowers v. Richard Whitman

Jan 12: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 10-35966 & 10-36029. Appealed from the United States District Court for the District of Oregon. The Appeals Court explained that In this consolidated appeal, the Appeals Court must determine whether the State of Oregon and Jackson County (collectively Oregon) committed a constitutional taking, violated Plaintiffs' due process rights, or violated Plaintiffs' equal protection rights when Oregon voters enacted Measure 49 to replace and modify remedies available under the previous Measure 37.
    All of the Plaintiffs in the cases are owners of real property in the State of Oregon, who submitted written demands for compensation under Measure 37 and received timely waivers. None of these individual plaintiffs have recovered any monetary compensation, and, because of Measure 49, none have been able to proceed with any development of their land under the waivers granted.
    Measure 37 required "state and local governments to compensate private property owners for the reduction in the fair market value of their real property that results from any land use regulations of those governmental entities that restrict the use of the subject properties." Measure 49, was also approved by the voters and The Oregon Supreme Court examined the text and context of Measure 49 and found that it "conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners."
    The Appeals Court ruled, "We conclude that Oregon did not commit a constitutional taking when it modified the remedies available under Measure 37, because any potential property interest that Plaintiffs had for compensation or a specific type of land use under Measure 37 had not vested. Measure 49 also does not contravene substantive due process, because it does not implicate fundamental rights. For this reason, and also because the regulatory classification under Measure 49 is not based on a suspect class, Measure 49 also survives rational basis scrutiny and has not violated Plaintiffs' equal protection rights. Therefore, we affirm the district court."
    Access the complete opinion (click here). [#Land, #CA9]

Wednesday, January 11, 2012

Ohio River Valley v. Kenneth Salazar (Interior Dept.)

Jan 10: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-1049. Appealed from the United States District Court for the Southern District of West Virginia, at Huntington. In this unpublished opinion which is not binding precedent in the circuit, the appeal concerns West Virginia's statutory and regulatory program under the Surface Mining Reclamation and Control Act of 1977 (SMCRA). Appellants Ohio River Valley Environmental Coalition, Inc. and West Virginia Highlands Conservancy, Inc. (collectively OVEC) challenge Appellee Kenneth Salazar's approval, in his official capacity as Secretary of the Interior (Secretary), of two amendments to West Virginia's surface coal mining regulations.
    On cross-motions for summary judgment, the district court considered OVEC's argument that the Secretary's approval was arbitrary and capricious because the amendments violate SMCRA's mandate that "[n]othing in [the Act] shall be construed as superseding, amending, modifying, or repealing" the Clean Water Act (CWA), 33 U.S.C. §§ 1151-75, "the State laws enacted pursuant thereto, or other Federal laws relating to the preservation of water quality," 30 U.S.C. § 1292(a)(3). The district court denied OVEC's motion for summary judgment, granted summary judgment in favor of the Secretary and Intervenors-Appellees West Virginia Department of Environmental Protection (WVDEP) and West Virginia Coal Association (WVCA) (collectively Intervenors), and entered a final judgment in favor of the Secretary and Intervenors. The Appeals Court affirmed the district court decision.
    The focus of this case is West Virginia's regulatory provision requiring WVDEP to prepare a CHIA [cumulative hydrologic impact assessment] in conjunction with its review of surface coal mining permits. West Virginia's first proposed amendment repeals its definition of "cumulative impact" in the State's CHIA provision and the second amendment at issue in this case adds a definition for "material damage to the hydrologic balance outside the permit area."
    The Appeals Court concluded that, ". . .we agree with the district court's analysis. The district court properly determined that the Secretary 'has provided an adequate basis for his approval' and that 'West Virginia's material damage definition does not supersede, amend, modify, or repeal the [CWA].' . . Accordingly, we affirm on the basis of the district court's well reasoned opinion."
    Access the complete opinion (click here). [#Energy/Coal, #Water, #CA4]

Tuesday, January 10, 2012

SCOTUS Hears Arguments In Sackett v. EPA Wetlands Case

Jan 9: The U.S. Supreme Court (SCOTUS) heard oral arguments in the case of Chantell and Michael Sackett v. U.S. EPA (SupCt No.10-1062). The case is being appealed from the Ninth Circuit [See WIMS 9/21/10]. In the case the Ninth Circuit said, "We join our sister circuits and hold that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process."
    Chantell and Michael Sackett own a small lot in a built-out residential subdivision that they graded to build a home. Thereafter, the Sacketts received an Administrative Compliance Order from EPA claiming that they filled a jurisdictional wetland without a Federal permit in violation of the Clean Water Act. At great cost, and under threat of civil fines of tens of thousands of dollars per day, as well as possible criminal penalties, the Sacketts were ordered to remove all fill, replace any lost vegetation, and monitor the fenced-off site for three years. The Sacketts were provided no evidentiary hearing or opportunity to contest the order. And, the lower courts have refused to address the Sacketts' claim that the lot is not subject to Federal jurisdiction. The questions presented to the Supreme Court are: Do Petitioners have a right to judicial review of an Administrative Compliance Order issued without hearing or any proof of violation under Section 309(a) (3) of the Clean Water Act?
    Access the transcript of the oral arguments (click here). Access the merit briefs and numerous amicus briefs filed in the case (click here). Access the SupCt docket in the case (click here). [#Water, #SCOTUS]

Tuesday, January 3, 2012

D.C. Appeals Court Stays Cross-State Air Pollution Rule

Dec 30: In one of the last official judicial environmental actions of 2011, the United States Court of Appeals for the D.C. Circuit issued a ruling to stay U.S. EPA's controversial Cross-State Air Pollution Rule (CSAPR) finalized on July 6, 2011, and published in the Federal Register on August 8, 2011 [See WIMS 7/7/11]. According to the 2-page Court order issued on December 30, the CSAPR, which just became effective on October 7, 2011, is now on hold pending judicial review until at least April 2012.

    On October 6, EPA signed a proposed rule, seeking comment on significant revisions to the final CSAPR [See WIMS 10/7/11]. In a separate, but related, regulatory action, EPA finalized a supplemental rulemaking on December 15, 2011 to require five states -- Iowa, Michigan, Missouri, Oklahoma, and Wisconsin -- to make summertime NOx reductions under the CSAPR ozone season control program. CSAPR requires a total of 28 Eastern states to reduce annual SO2 emissions, annual NOx emissions and/or ozone season NOx emissions to assist in attaining the 1997 ozone and fine particle and 2006 fine particle National Ambient Air Quality Standards (NAAQS). CSAPR replaced EPA's 2005 Clean Air Interstate Rule (CAIR). A December 2008 court decision kept the requirements of CAIR in place temporarily but directed EPA to issue a new rule to implement Clean Air Act requirements concerning the transport of air pollution across state boundaries.

    The case, EME Homer City Generation, L.P. v. EPA with the American Lung Association, et al. as Intervenors, Case No. 11-1302 is consolidated with 44 other petitions. Among other items, the Court order indicates, ". . .the motions to stay be granted. The Environmental Protection Agency's 'Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals; Final Rule,' 76 Fed. Reg. 48,208 (August 8, 2011), is stayed pending the court's resolution of these petitions for review. Petitioners have satisfied the standards required for a stay pending court review. . . Respondent is expected to continue administering the Clean Air Interstate Rule pending the court's resolution of these petitions for review."
    The Appeals Court ordered further, "that the parties submit by January 17, 2012, proposed formats and schedules for the briefing of these cases that would allow the cases to be heard by April 2012. The parties are strongly urged to submit a joint proposal and are reminded that the court looks with extreme disfavor on repetitious submissions and will, where appropriate, require a joint brief of aligned parties with total words not to exceed the standard allotment for a single brief. The parties are directed to provide detailed justifications for any request to file separate briefs or to exceed in the aggregate the standard word allotment. Requests to exceed the standard word allotment must specify the word allotment necessary for each issue."
    Access the Appeals Court order (click here). Access EPA's CSAPR website for complete background and details (click here). [#Air, #CADC]

State Of New York v. Solvent Chemical Co., Inc.

Dec 19: In the U.S. Court of Appeals, Second Circuit, Case Nos. 10-2026, 10-2166, 10-2383. The Appeals Court summarizes saying, "Plaintiff sought contribution under the Comprehensive Environmental Response and Compensation Act (CERCLA) for both past and future costs of cleaning up industrial pollution. The U.S. District Court for the Western District of New York awarded contribution for past cleanup costs but declined to issue a declaratory judgment as to future contribution. The Appeals Court reversed the denial of a declaratory judgment and indicated that numerous other issues raised on appeal are decided in a summary order issued simultaneously with the opinion.
    Plaintiff Solvent Chemical Company, Inc. (Solvent) sued two adjoining property owners, E.I. du Pont de Nemours & Co. (DuPont) and Olin Corporation (Olin), seeking contribution for costs that Solvent had incurred and continues to incur cleaning up hazardous waste pursuant to a consent decree with the State of New York. The district court declined to declare liability chiefly because the allocation of future costs would be premature.
    The Appeals Court indicates that, "The reasons given by the district court might justify a refusal to allocate cleanup responsibility; none of them, however, supports a refusal to grant a declaratory judgment as to liability itself. . . none of the factors identified by the court distinguishes between past and future cleanup. . . These factors require a district court to issue a declaratory judgment in this case. A declaratory judgment would 'serve a useful purpose' here for at least two reasons.
    "First, there is a short statute of limitations for a CERCLA contribution claim. . . Second, the 'costs and time involved in relitigating issues as complex as these where new costs are incurred would be massive and wasteful' . . . A declaratory judgment
with respect to liability saves litigants and courts substantial time and money, leaving for the future only the need to fix the amount of contribution and affording the court flexibility with respect to the time and manner for doing so. . .Accordingly, we conclude that: the judgment would 'serve a useful purpose in . . . settling the legal issues involved'. . ."
    Access the complete opinion (click here). [#Remed, #CA2]

National Association of Home Builders v. US Army Corps

Dec 16: In the U.S. Court of Appeals D.C. Circuit, Case No. 10-5169. Appealed from the United States District Court for the District of Columbia. According to the Appeals Court, "Invoking its authority under § 404(e) of the Clean Water Act (CWA), 33 U.S.C. § 1344(e), the U.S. Army Corps of Engineers issued a generic nationwide permit (NWP 46) allowing persons to secure approval for qualifying discharges into 'waters of the United States' without going through the more laborious process of securing an individual permit."
    The National Association of Home Builders (NAHB) appealed the district court's dismissal of its challenge to the Corps's authority to issue the permit. Although the district court held that the NAHB had standing to pursue its claim, it ultimately granted summary judgment for the Corps on the merits, finding that the terms of the permit survived the NAHB's legal challenges. The Appeals Court, however said, "Because we find that the NAHB lacked standing to bring its suit, we vacate and remand with instructions to dismiss the case."
    The Appeals Court states further, "A membership organization such as the NAHB can assert standing on behalf of its members only if 'at least one' of these members would have standing on their own. Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002) (citing Hunt v. Wash. State Apple Advertising Comm'n, 432 U.S. 333, 342-43 (1977)). Although it is undisputed that the NAHB qualifies to advance the claims of its members, we find that it has failed to show that any member had standing."
    Access the complete opinion (click here). [#Water, #CADC]

Northern Plains Resources v. The Surface Transportation Bd.

Dec 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 97-70037, 97-70099, and 97-70217. On Petition for Review of Orders of the Surface Transportation Board, Department of Transportation.
    The Appeals Court indicates that the case arises out of three applications by the Tongue River Railroad Company, Inc. (TRRC) to build a 130-mile railroad line in Southeastern Montana to haul coal. The Surface Transportation Board (Board), or its predecessor, the Interstate Commerce Commission (ICC), approved each of the three applications (individually, TRRC I, II, and III). Northern Plains Resource Council, Inc. (NPRC), Mark Fix, the City of Forsyth, Native Action, Inc. (Native Action), and United Transportation Union-General Committee of Adjustment (UTU-GCA) (collectively, Petitioners) challenge TRRC II and III. Petitioners challenge the approval of TRRC II and III on a number of environmental and public convenience and necessity grounds.
    The Appeals Court said, "We hold that the Board failed to take the requisite 'hard look' at certain material environmental impacts inherent in TRRC II and III in the manner required by the National Environmental Policy Act (NEPA) prior to approving those applications. We further hold that the Board did not err in its public convenience and necessity analyses, except with respect to its reliance on the viability of TRRC II during the approval of TRRC III. Accordingly, we reverse and remand in part, and affirm in part."
    The Appeals Court indicates that, "Petitioners contend that the Board's cumulative impact analysis in TRRC III ignores the combined impacts of future coal bed methane (CBM) well development and coal mining projects that will also come into being in Southeastern Montana. Petitioners further contend that the Board failed to account for the combined effects of the referenced projects and the likely effects on air quality, wildlife, and water quality of the proposed construction and operation of the TRRC railroad. We agree with Petitioners' contentions concerning the cumulative foreseeable effects of CBM wells and the Otter Creek Coal Mine. . . we hold that the Board arbitrarily and capriciously relied on the five-year time frame, which resulted in a faulty analysis of the possible cumulative impacts from reasonably foreseeable CBM projects that could overlap construction of the railroad line." On other issues the Appeals Court ruled in favor of the Board.
    Access the complete opinion (click here). [#Transport, #Land, #CA9]

New Jersey v. EPA

Dec 20: the U.S. Court of Appeals D.C. Circuit, Case No. 05-1097, consolidated with 40 other actions. The Appeals Court explains that this is a motion for fees and costs under section 307(f) of the Clean Air Act, which authorizes courts to -- award costs of litigation (including reasonable attorney and expert witness fees) whenever they determine that such award is appropriate. In the underlying litigation, movants, a group of Native American tribes and tribal associations, intervened on behalf of petitioners who were challenging EPA rules regulating mercury emissions from power plants. See New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008). The Tribes also filed a petition for review challenging an ancillary regulation not at issue here. The Appeals Court vacated the mercury rules because it agreed with petitioners that the rules violated the Clean Air Act. Id. Petitioners sought fees, and EPA agreed to pay.
    The Appeals Court indicates, "Tribal Intervenors, who also pressed for vacatur, albeit on the basis of different arguments that we never reached, now ask us to order EPA to pay their fees and costs. EPA objects, claiming that Tribal Intervenors are ineligible for fee shifting. EPA also argues that even were Tribal Intervenors eligible, the size of their fee request is unreasonable and should be reduced by more than two-thirds. . . we conclude that Tribal Intervenors merit a fee award. We decline, however, to weigh in now on the appropriate amount; instead, we direct the parties to our Appellate Mediation Program."
    Access the complete opinion (click here). [#Air, #CADC]