U.S. Supreme Court Denies States' Asian Carp Suit

Feb 27: In a brief order by the U.S. Supreme Court, in the case of Michigan, et al., Petitioners v. United States Army Corps of Engineers, et al. (SupCt No. 11-541) denied the States' petitions for writs of certiorari. The Order notes that Justice Kagan took no part in the consideration or decision of these petitions.

 

    On October 26, 2011 Michigan Attorney General Bill Schuette filed a request for appeal with the Supreme Court to review a U.S. Court of Appeals decision that denied the request of five Great Lakes states for an immediate injunction against the U.S. Army Corps of Engineers [See WIMS 10/26/11]. Michigan and the states of Minnesota, Ohio, Pennsylvania and Wisconsin were requesting that the Army Corps greatly speed up their study on the ecological separation of the Lake Michigan and Mississippi basins to prevent the advancement of invasive Asian carp toward Lake Michigan. Additionally the states requested an injunctive order compelling the Corps to place block nets in the Little Calumet and Grand Calumet Rivers.

 

    On August 24, 2011, the U.S. Court of Appeals for the 7th Circuit in Chicago issued a ruling on a preliminary injunction request concluding that Michigan's lawsuit had "a good or even substantial likelihood of success on the merits of their public nuisance claim." [See WIMS 9/6/11]. Despite the recognition of the real threat posed by Asian carp, the Court denied the states' request. The states then decided to appeal. The states' petition asked the Supreme Court to overturn the 7th Circuit decision and order.

 

    Access the Supreme Court order (click here, page 6). Access the Supreme Court docket in the case (click here). Access the 32-page Petition for a Writ of Certiorari (click here). [#GLakes, #SupCt]

 

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ATK Launch Systems, Inc. v. U.S. EPA

Feb 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1004, consolidated with 10-1005, 10-1006, 11-1252, 11-1253, 11-1254. On Petitions for Review of a Final Action of U.S. EPA. The Appeals Court explains that in these consolidated petitions, ATK Launch Systems, Inc., two Utah counties, and three Utah cities seek partial vacation of a final rule designating certain areas as nonattainment for the 2006 24-hour fine particulate matter (PM2.5) standard. Air Quality Designations for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards, 74 Fed. Reg. 58,688 (Nov. 13, 2009) (Final Rule). In particular, petitioners challenge the inclusion of parts of Tooele and Box Elder Counties within the Salt Lake City nonattainment area. U.S. EPA concluded, upon applying its nine-factor test for designations, that emissions from eastern portions of both Box Elder County, including Brigham City and ATK's operations, and Tooele County, including Tooele City and Grantsville City, contributed to nearby violations of the 24-hour PM2.5 standard in and around Salt Lake City.

 

    Petitioners' principal argument is that EPA was arbitrary and capricious in applying the nine-factor designation analysis, arguing dissimilar treatment as compared to EPA's analysis of the data for two east coast counties, Warren County, New Jersey

and Hartford County, Connecticut, which EPA designated attainment. Petitioners also object to EPA's use of a pollutant transport model generally and its analysis of wind data for Box Elder County specifically. Finally, they question EPA's decision to include ATK's operations in the nonattainment portion of Box Elder County.

 

    The Appeals Court said, "Because EPA's nine-factor test is intended to be applied on a case-by-case basis to account for diverse considerations, including the varying effects of local topography and meteorology on PM2.5 dispersion, and EPA

reasonably explained its designations, we deny the petitions for review."

 

    The Appeals Court ruled further, "The record supports the conclusion that, when PM2.5 levels are most severe in Salt Lake City, wind direction is sometimes from the northwest, indicating contribution from Box Elder County. EPA's analysis of the wind data and air basin conclusion about pollution transport was reasonably based upon 'the best available information' . . .and petitioners thus fail to demonstrate that EPA ignored new information or otherwise was arbitrary or capricious."

 

    And, finally the Appeals Court said, "Petitioners do not dispute that ATK's operations occur below the inversion layer, which is at about 1,500 feet, and, as discussed, EPA reasonably concluded that meteorological data indicated that emissions from eastern Box Elder County, where ATK's operations occur, contribute to nearby violations of the PM2.5 standards. Petitioners fail to demonstrate that EPA was arbitrary or capricious by including ATK's operations within the nonattainment area. Accordingly, we deny the petitions for review."

 

    Access the complete opinion (click here). [#Air, #CADC]

 

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PPL Montana, LLC v. Montana

Feb 22: In the U.S. Supreme Court, Case No. 10-218. Appealed from the Supreme Court of Montana. The case concerns three rivers [the Missouri River, the Madison River, and the Clark Fork River] which flow through Montana and then beyond its borders. The unanimous Supreme Court said, the question is whether discrete, identifiable segments of these rivers in Montana were non-navigable, as Federal law defines that concept for purposes of determining whether the State acquired title to the riverbeds underlying those segments, when the State entered the Union in 1889. Montana contends that the rivers must be found navigable at the disputed locations. From this premise, the State asserts that in 1889 it gained title to the disputed riverbeds under the "constitutional equal-footing doctrine." Based on its title claims, Montana sought compensation from PPL Montana, LLC, a power company, for its use of the riverbeds for hydroelectric projects. The Montana courts granted summary judgment on title to Montana, awarding it $41 million in rent for the riverbeds for the period from 2000 to 2007 alone. The Supreme Court said, "That judgment must be reversed."

 

    In its concluding statement on the case the Justices said, "As the litigation history of this case shows, Montana filed its claim for riverbed rent over a century after the first of the dams was built upon the riverbeds. Montana had not sought compensation before then, despite its full awareness of PPL's hydroelectric projects and despite the State's own participation in the projects' federal licensing process. While this Court does not reach the question, it may be that by virtue of the State's sovereignty, neither laches nor estoppel could apply in a strict sense to bar the State's much belated claim. Still, the reliance by PPL and its predecessors in title upon the State's long failure to assert title is some evidence to support the conclusion that the river segments were non-navigable for purposes of the equal-footing doctrine.

    "The Montana Supreme Court's ruling that Montana owns and may charge for use of riverbeds across the State was based upon an infirm legal understanding of this Court's rules of navigability for title under the equal footing doctrine. As the Court said in Brewer-Elliott, 'It is not for a State by courts or legislature, in dealing with the general subject of beds or streams, to adopt a retroactive rule for determining navigability which . . . would enlarge what actually passed to the State, at the time of her admission, under the constitutional rule of equality here invoked.' 260 U. S., at 88."

    Access the complete opinion (click here). Access the merit and extensive amicus briefs in the case (click here). Access the Supreme Court Docket (click here). [#Water, #Energy/Hydro, #SupCt]

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Tenth Circuit Upholds "Roadless Rule" National Forest Protections

Feb 16: The 10th Circuit Court of Appeals denied a petition filed by the State of Wyoming and the Colorado Mining Association to reconsider the court's October 2011 ruling upholding the national Roadless Rule [See WIMS 10/24/11]. According to a release from Earthjustice, the October ruling secured critical legal protections for nearly 50 million acres of pristine National Forest lands. The latest decision means that the October decision upholding the Roadless Rule against legal challenges will stand as the final decision of the 10th Circuit.

 

    Earthjustice indicated that a large number of its attorneys have worked since 2001 to defend the protections embodied in the Roadless Rule. Bozeman Montana attorney Tim Preso, one of the attorneys issued a statement on the 10th Circuit decision saying, "Today's decision is a victory for all those who love to hike, fish, or hunt in our national forests. Protection of these forests also secures vital habitat for some of our nation's most sensitive wildlife. From condors of the southern California mountains, to grizzly bears and wolves near Yellowstone National Park, to migratory songbirds among the Appalachian hardwoods, many species would no longer exist -- or would be severely depleted -- but for the forest lands protected by the Roadless Rule. Today's victory marks yet another milestone in Earthjustice's ongoing legal effort to protect roadless public forest lands amounting to roughly a third of our national forests, and nearly 2 percent of the U.S. land base."

    Earthjustice attorney Ted Zukoski also worked on roadless protection in Colorado and said, "Today's decision is a win for Colorado's four million acres of streams, wildlife and mountains found in roadless areas. Sadly, the Forest Service continues to work on a weaker state rule for Colorado, one with loopholes allowing natural areas to be bulldozed for the benefit of the oil and gas industry and coal mines. The State of Colorado asked for a separate state rule a decade ago as an 'insurance policy' in case the national rule was set aside. With the Tenth Circuit's decision, that insurance policy is not needed. The Forest Service should abandon its effort to roll back the Roadless Rule's protections for Colorado forests. Colorado's forests, wildlife and clear streams deserve the same high level of protection as forests in neighboring Wyoming, Utah, and New Mexico."

    In October 2011, the Tenth Circuit Court of Appeals in Denver, CO issued a lengthy 120-page opinion that reversed the district court's order granting Plaintiff's declaratory relief and issuing a permanent injunction, and remanded the case for the district court to vacate the permanent injunction. The State of Wyoming and the mining industry had sought to overturn the Roadless Rule. Subsequently, in December 2011 the State of Wyoming and the Colorado Mining Association challenged the Roadless Rule again and asked for a full, en banc appeals court rehearing. That petition was denied in the latest court action. In a brief order, the Appeals Court said, "The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular active service on the court requested that the court be polled, that petition is also denied."

    Jane Danowitz, director of the Pew Environment Group's U.S. public lands program, issued a statement regarding Appeals Court ruling saying, "Today's court decision gives President Obama a green light to implement one of the nation's most important conservation polices. With the last legal barrier cleared, the administration should move quickly to enforce the roadless rule as the law of the land. The importance of a national policy to preserve what remains of America's pristine forests cannot be overstated. Without the roadless rule, protection of these areas would be left to the patchwork management system that has resulted in millions of acres lost to industrial development. This decision is good news for all Americans who care about our national forests."

    Access a release from Earthjustice and link to the Appeals Court order (click here). Access a release from the Pew Environment Group (click here). [#Land]

Blue Ridge Environmental Defense League v. NRC

Feb 17: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1112, consolidated with 10-1058. On Petitions for Review of Orders of the Nuclear Regulatory Commission. In December 1974, Tennessee Valley Authority (TVA) received construction permits from the Atomic Energy Commission, the predecessor to the Nuclear Regulatory Commission (the NRC or the Commission), for the Bellefonte Nuclear Plant, Units 1 and 2 (the units). TVA pursued construction under a series of permit extensions through the late 1980s, when, based on its projections of diminished energy demand, it decided to place the units in "deferred status" and establish a maintenance program under the NRC's Policy Statement on Deferred Plants (the Policy Statement). Under the Policy Statement, during a deferral period, a permit holder is required to undertake maintenance and preservation activities but may halt actual construction. In 2005, TVA placed the units in "terminated" status under the Policy Statement. One year later, TVA voluntarily requested that the NRC withdraw the permits. The NRC granted this request.

 

    In 2008, TVA asked the NRC to reinstate its withdrawn construction permits. Although neither withdrawal nor reinstatement are specifically addressed in the Atomic Energy Act (the AEA or the Act), the NRC granted TVA's reinstatement request in an order issued on March 9, 2009 and published in the Federal Register on March 13, 2009.

 

On March 30, 2009, the Blue Ridge Environmental Defense League (BREDL or Petitioner) filed a petition with the Appeals Court, purporting to challenge the NRC's decision to reinstate the construction permits. However, the Appeals Court notes that, ". . .in its Statement of Issues To Be Raised, in its Reply Brief, and during oral argument, BREDL insisted that it was not challenging the NRC order that was published in the Federal Register on March 13, 2009. Rather, BREDL asserted that its March 30, 2009 petition for review challenges only a compilation of 'Response Sheets' filed by individual Commissioners in December 2008 and January 2009."

 

    The Appeals Court said that BREDL contends that the compilation of Commissioners' views resulted in a final order on January 27, 2009. However, the Appeals Court said, "We disagree. After the Commissioners' 'Response Sheets' were assembled, the matter was referred to the NRC staff for evaluation. However, it was not until February 18, 2009 that the NRC authorized the staff to issue an order on behalf of the agency reinstating the construction permits. That order was published in the Federal Register on March 13, 2009. Therefore, BREDL's petition for review challenging an alleged action of the NRC taken on January 27, 2009 does not seek review of a final NRC order."

 

    The Appeals Court rules, "Under the Hobbs Act, this court has jurisdiction to review only 'final orders' of the NRC. 28 U.S.C. § 2342(4) (2006). The March 30, 2009 and March 8, 2010 petitions filed by BREDL with this court do not seek review of final NRC orders. Therefore, we lack jurisdiction and must dismiss."

 

    Access the complete opinion (click here). [#Energy/Nuclear, #CADC]

 

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Shenandoah Valley Network v. J. Capka

Feb 17: In the U.S. Court of Appeals, Fourth Circuit, Case No. 10-1954. Appealed from the United States District Court for the Western District of Virginia, at Charlottesville. The Appeals Court explains that the Federal Highway Administration (FHWA) and the Virginia Department of Transportation (VDOT) (collectively, the Agencies) are planning improvements to Virginia's Interstate 81 corridor using a tiered review process. Appellants -- a group of environmental and preservation organizations -- challenged the Agencies' execution of the tiered process, alleging various constitutional and statutory violations. The district court rejected these challenges and granted summary judgment in favor of the Agencies.

 

    On appeal, appellants claim that the Agencies are attempting to foreclose consideration of environmentally friendly alternatives for specific sections of I-81 by choosing a corridor-wide improvement concept in the first stage of the review process. Appellants, however, misapprehend the Agencies' position. As confirmed at oral argument, the Agencies plan to comply with the Stipulation in this case and the National Environmental Policy Act (NEPA), by considering site-specific alternatives to the corridor-wide concept in subsequent stages. The Appeals Court ruled, "Because there is no actual dispute here, and because appellants cannot show any injury or imminent threat of injury, this suit is not justiciable. Accordingly, we must dismiss the appeal."

 

    The Appeals Court concluded further, "There is simply nothing for this court to adjudicate. NEPA does not permit us to prescribe outcomes either now or in the future, but neither would it allow us to proscribe in the present proceeding even the consideration of future environmental impacts. Either the prescription of outcomes or the proscription of consideration would not only be contrary to the statute, but would raise a live and present controversy between the parties. Neither circumstance being present, there remains nothing to dispute and we are satisfied that no justiciable controversy lingers. Accordingly, the appeal is dismissed."

 

    Access the complete opinion (click here). [#Transport, #CA4]

 

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Turtle Island Restoration Network v. Department of State

Feb 17: In the U.S. Court of Appeals, Ninth Circuit, No. 10-17059. Appealed from the United States District Court for the Northern District of California. Turtle Island Restoration Network (TIRN), a non-profit environmental organization, appeals from the district court's dismissal of its claim on res judicata grounds [i.e. once a matter is judicially decided, it is finally decided]. TIRN alleges that the U.S. Department of State failed to satisfy its consultation and environmental assessment obligations under the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), in conducting annual certifications of countries exempted from the general ban on shrimp imports.

 

    Section 609(b) of Public Law 101-162 prohibits the importation of shrimp harvested with technology that may adversely affect sea turtles, except from countries certified to employ a turtle protection program comparable to that of the United States. The Appeals Court said, "We must decide whether TIRN's current lawsuit for NEPA and ESA violations is precluded by its earlier lawsuits challenging the State Department's regulations implementing the section 609(b)(2) certification process."

 

    The Appeals Court concludes, "Because TIRN's current challenge to the State Department's section 609(b)(2) certification process arises from the same transactional nucleus of facts as its earlier litigation, res judicata bars its claims. Accordingly, we affirm the district court. Although TIRN forfeited its opportunity to challenge the State Department's non-compliance with NEPA and ESA obligations in section 609(b)(2) certifications, our decision doesn't preclude judicial review of this issue. Because the legal question of whether NEPA and ESA apply to section 609(b)(2) has yet to be litigated on the merits, another plaintiff -- not in privity with TIRN -- is still free to bring this challenge."

 

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

 

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The Save The Peaks Coalition v. U.S. Forest Service

 Feb 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17896. On Appeal from the United States District Court for the District of Arizona. The Appeals Court does not hold back in expressing its displeasure with this case and its attorney and plaintiffs.

 

    The Appeals Court said, "This case represents a gross abuse of the judicial process. Just when Defendants-Appellees United States Forest Service and Joseph P. Stringer (USFS), and Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership (ASRLP) had successfully defended an agency decision to allow snowmaking at a ski resort on Federal land all the way to the United States Supreme Court, 'new' plaintiffs appeared. Represented by the same attorney as the losing parties in the first lawsuit, the 'new' plaintiffs -- who had closely monitored and, in some cases, actively encouraged and helped finance the first litigation --brought certain environmental claims that were virtually identical to some that the attorney had improperly attempted to raise in the earlier lawsuit, for no apparent reason other than to ensure further delay and forestall development.

 

    "Years had passed since the original proposal had been made. According to the record, ASRLP, which operated the ski resort, faced a looming prospect of financial ruin without the ability to proceed with the plan to produce snow. Neither fact deterred the 'new' plaintiffs' lawsuit. Nor did the meritless nature of their claims under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706.

 

    "Although it is apparent to us that the 'new' plaintiffs and their counsel have grossly abused the judicial process by strategically holding back claims that could have, and should have, been asserted in the first lawsuit (and would have been decided earlier but for counsel's procedural errors in raising those claims), we are compelled to hold that laches [an equitable defense that limits the time in which a party may bring suit] does not apply here because the USFS and ASRLP cannot demonstrate that they suffered prejudice, as defined by our case law. . . Nevertheless, we hold that the Save the Peaks Plaintiffs' claims fail under NEPA and the APA. Accordingly, we hold that the district court properly granted summary judgment to the USFS and ASRLP, and we affirm."

 

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

 

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Adams v. U.S. Forest Service

Feb 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-16711. On Appeal from the United States District Court for the District of Arizona. The Federal Lands Recreation Enhancement Act (REA) prohibits the United States Forest Service from charging fees '[s]olely for parking, undesignated parking, or picnicking along roads or trailsides,' for 'hiking through . . . without using the facilities and services,' and '[f]or camping at undeveloped sites . . . .' 16 U.S.C. § 6802(d)(1)(A), (D) & (E). Despite these clear prohibitions, the Forest Service collects fees from all drivers who park their vehicles in a mile-wide piece of the Coronado National Forest running along the 28–mile Catalina Highway, the only paved road to the summit of Mount Lemmon, a heavily used recreational area an hour's drive from downtown Tucson, Arizona.

 

    Four recreational visitors sued, seeking a declaration that the Forest Service was exceeding the scope of its authority under the REA by charging fees to those who drive to Mount Lemmon, park their cars, then picnic, hike, or camp in nearby undeveloped areas. Plaintiffs also sought to enjoin the Forest Service from collecting such fees. The district court granted defendants' Rule 12(b)(6) motion to dismiss. Plaintiffs appealed. The Appeals Court ruled, "Because plaintiffs are correct that the Forest Service's fee structure contravenes the plain language of the REA, we reverse the district court's dismissal of Count I and remand to allow plaintiffs to pursue that claim."

 

    The Appeals Court said further, "In sum, the statutory language is clear. The Forest Service's interpretation is thus entitled to no deference. Chevron, 467 U.S. at 842-43. As alleged by plaintiffs, the Forest Service's fee structure at the Mount Lemmon HIRA [High Impact Recreation Area] does not comport with the REA's express prohibition on charging fees for parking and then hiking through the HIRA without using the facilities and services, camping in undeveloped areas, or picnicking on roads or trailsides. The district court thus erred in dismissing plaintiffs' claim. . .the REA unambiguously prohibits the Forest Service from charging

fees in the Mount Lemmon HIRA for recreational visitors who park a car, then camp at undeveloped sites, picnic along roads or trailsides, or hike through the area without using the facilities and services. We therefore reverse the district court's grant of defendants' motion to dismiss Count I and remand to the district court for further proceedings consistent with this opinion."

 

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

 

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Tri-Valley CAREs v. Department of Energy

Feb 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17636. Appealed from the United States District Court for the Northern District of California. The case arises out of Plaintiffs-Appellants Tri-Valley CAREs' (Tri-Valley CAREs) second challenge to the sufficiency of the U.S. Department of Energy's (DOE) Environmental Assessment (EA) of a prospective "biosafety level-3" (BSL-3) facility at the Lawrence Livermore National Laboratory (LLNL). In an earlier round of litigation, the Ninth Circuit upheld all aspects of the DOE's original EA, except for its failure to consider the impact of a possible terrorist attack. Following a remand, on September 30, 2009, the district court entered summary judgment in the DOE's favor on the grounds that it had sufficiently revised its Final Revised Environmental Assessment (FREA) to adequately consider the environmental impact of an intentional terrorist attack on the BSL-3 facility at LLNL.

 

    On November 18, 2010, Tri-Valley CAREs appealed the district court's decision, petitioning the Appeals Court to require the DOE to prepare an Environmental Impact Statement (EIS), or, in the alternative, to revise its EA, in light of the allegations set forth in its original complaint, to determine whether an EIS is required.

 

    The Appeals Court ruled, "We hold that the DOE took the requisite 'hard look' at the environmental impact of an intentional terrorist attack in the manner required by the National Environmental Policy Act (NEPA) and San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 635 F.3d 1109 (9th Cir. 2011). We further hold that the district court did not abuse its discretion in denying Tri-Valley CAREs' motion to supplement the record. Accordingly, we affirm."

 

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

 

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Pacific Rivers Council v. U.S. Forest Service

Feb 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17565. Appealed from the United States District Court for the Eastern District of California. As explained by the Majority Appeals Court, the national forests of the Sierra Nevada Mountains (the Sierras) are home to a rich array of fauna, including at least 61 species of fish and 35 species of amphibians. The Sierra Nevada Ecosystem Project, a study commissioned by Congress, concluded in 1996 that their environment has been severely degraded: "The aquatic/riparian systems are the most altered and impaired habitats in the Sierra."

 

    The Sierra Nevada Forest Plan applies to all of the national forests in the Sierras. In January 2001, the United States Forest Service (Forest Service) issued a Final Environmental Impact Statement (2001 EIS) recommending amendments to the Forest Plan. The amendments were intended, among other things, to conserve and repair the aquatic and riparian ecosystems. In January 2001, under the administration of President Clinton, the Forest Service adopted a modified version of the preferred alternative recommended in the 2001 EIS. The parties refer to this as the 2001 Framework.

 

In November 2001, under the administration of newly elected President Bush, the Chief of the Forest Service asked for a review of the 2001 Framework. In January 2004, the Forest Service issued a Final Supplemental Environmental Impact Statement (2004 EIS) recommending significant changes to the 2001 Framework. The Forest Service adopted the preferred alternative in the 2004 EIS. The parties refer to this as the 2004 Framework.

 

    Plaintiff-Appellant Pacific Rivers Council (Pacific Rivers) brought suit in Federal district court challenging the 2004 Framework as inconsistent with the National Environmental Protection Act (NEPA) and the Administrative Procedure Act (APA). The Appeals Court states, "The gravamen of Pacific Rivers' complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians." On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service.

 

    The Majority Appeals Court rules, ". . .we conclude that the Forest Service's analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service's analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court."

 

    Further explaining, the Majority concludes, "In Lands Council II, we wrote that we will hold that an agency has acted in an arbitrary and capricious manner in preparing an EIS when it has 'entirely failed to consider an important aspect of the problem.'  537 F.3d at 987. In this case, the Forest Service 'entirely failed to consider' environmental consequences of the 2004 Framework on individual species of fish. Given the detailed 64-page analysis of the likely impact on individual species of fish in the 2001 EIS, the complete lack of such analysis of the likely impact on individual species of fish in the 2004 EIS, and the lack of any explanation in the 2004 EIS why it is not 'reasonably possible' to perform some level of analysis of such impact, we have no choice but to conclude that the Forest Service failed to take the requisite 'hard look' at environmental consequences of the 2004 Framework for fish.

 

    "We hold that the Forest Service failed to take a hard look at environmental consequences on fish in the 2004 EIS, in violation of NEPA. We hold that the Forest Service did take a hard look at environmental consequences on amphibians in the 2004 EIS, in compliance with NEPA. We therefore reverse in part and affirm in part, and remand to the district court."

 

    The Minority justice concludes in a lengthy minority opinion, ". . .the majority makes two fundamental errors: First, it reinvents the arbitrary and capricious standard of review, transforming it from an appropriately deferential standard to one freely allowing courts to substitute their judgments for that of the agency. In doing so, the majority disregards our circuit's long-standing precedent holding that an agency's timing of analysis required by the National Environmental Policy Act (NEPA) is not arbitrary and capricious if it is performed before a critical commitment of resources occurs. . . Second, the majority ignores the tiering framework created by NEPA. Because the majority ignores such framework, it fails to differentiate between a site-specific environmental impact statement ("EIS") and a programmatic EIS that focuses on high-level policy decisions. . ."

 

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

 

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Emergency Services Billing v. Allstate Insurance Co.

Feb 2: In the U.S. Court of Appeals, Seventh Circuit, Case No. 11-2381. Appealed from the United States District Court for the Northern District of Indiana, Hammond Division at Lafayette. The appeal concerns the interpretation of the phrase "consumer product in consumer use" in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Plaintiff-appellant, Emergency Services Billing Corporation (ESBC), is the billing agent for the Volunteer Fire Department of Westville (Fire Department), a town in central Indiana. ESBC brought the action against individuals who were involved in motor vehicle accidents and the insurance companies that represent those individuals.

 

    Under CERCLA, the owner of a "facility" from which hazardous substances have been released is responsible for the response costs that result from the release. ESBC believes that personally owned motor vehicles fall within the definition of "facilities" under CERCLA. Thus, ESBC charged the individual defendants, and therefore the insurance company defendants, with the response costs relating to their respective car accidents. Defendants argue that personal motor vehicles fall under CERCLA's "consumer product in consumer use" exception to the definition of "facilities," and they have refused to pay ESBC for the response costs.

 

    ESBC has asked for declaratory relief in the form of a confirmation of the defendants' liability under CERCLA. The district court held that motor vehicles for personal use do, in fact, fall under the "consumer product in consumer use" exception to CERCLA's definition of facility, and that defendants cannot be charged with the Fire Department's costs for responding to the car accidents. ESBC appealed, challenging the district court's interpretation of CERCLA. For the following reasons, however, the Appeals Court affirm the district court's dismissal of ESBC's suit.

 

    The Appeals Court concluded, "CERCLA's "consumer product" exemption from the term 'facilities' cannot reasonably be read to exclude personally-owned, personally-operated motor vehicles. The language of CERCLA is clear on its face, and a look into CERCLA's legislative history, the term "consumer product" as it is used in other statutes, and the EPA's interpretation of the term only confirms our conclusion. We therefore affirm the district court's dismissal of ESBC's suit for declaratory relief."

 

    Access the complete opinion (click here). [#Remed, #CA7]

 

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