Luminant Generation Company, et al v. U.S. EPA

Mar 27: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60891. On Petition for Review of an Order of U.S. EPA. The Appeals Court explains that the case requires us to review the EPA's disapproval, more than three years after the time within which it was statutorily required to act, of three regulations promulgated by the State of Texas. Pursuant to Texas's duty under the Clean Air Act (CAA), to adopt and administer a statewide plan for implementing Federal air quality standards, the regulations provide for a standardized permit for certain projects that reduce or maintain current emissions rates. The Appeals Court ruled, "Because the EPA had no legal basis on which to disapprove those regulations, we vacate the agency's disapproval of Texas's regulations and remand with instructions."

 

    In a lengthy conclusion, the Appeals Court said, "This chapter in regulatory history has lasted almost two decades. Texas submitted its first two standard permits for PCPs [pollution control projects] to the EPA for approval in 1994. Texas made various amendments to these permits over the years, and promptly submitted each amendment to the EPA. The most recently amended version is the PCP Standard Permit at issue in this case. Despite an eighteen month statutory deadline, the EPA did not take action on any of these submissions until September 15, 2010. At that late date, the EPA disapproved the PCP Standard Permit -- submitted four and a half years earlier -- based on its purported nonconformity with three extra-statutory standards that the EPA created out of whole cloth. Moreover, the EPA did this in the context of a cooperative federalism regime that affords sweeping discretion to the states to develop implementation plans and assigns to the EPA the narrow task of ensuring that a state plan meets the minimum requirements of the Act. The EPA applied these unauthorized standards to disapprove of a state program for projects that reduce air pollution and that, under the Act's plain terms, is subject to only the most minimal regulation.

 

    "Because the EPA waited until more than three years after the statutory deadline to act on Texas's submission, we order the EPA to reconsider it expeditiously. On remand, the EPA must limit its review of Texas's regulations to ensuring that they meet the minimal CAA requirements that govern SIP revisions to minor NSR, as set forth in 42 U.S.C. § 7410(a)(2)(C) and § 7410(l). If Texas's regulations satisfy those basic requirements, the EPA must approve them, as § 7410(k)(3) requires. That is the full extent of the EPA's authority in the SIP-approval process because that is all the authority that the CAA confers. See La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986) ('[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.').

 

    "We vacate the EPA's disapproval of 30 Tex. Admin. Code §§ 116.610(a), 116.610(b), and 116.617 and remand with instructions that the EPA reconsider these regulations and approve or disapprove them most expeditiously."

 

    Access the complete opinion (click here). [#Air, #CA5]

 

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SCOTUS Rules In Sackett v. U.S. EPA Wetlands Case

Mar 21: In the U.S. Supreme Court, Case No. 10-1062. Appealed from the U.S. Court of Appeals, Ninth Circuit [See WIMS 9/21/10]. Oral arguments were held January 9, 2012 [See WIMS 1/10/12]. The opinion was unanimous with two separate concurring opinions.

 

    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 were: 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?

 

    The district court granted the EPA's Federal Rule of Civil Procedure 12(b)(1) motion to dismiss the Sacketts' claims for lack of subject-matter jurisdiction. The Appeals Court ruled, "In conclusion, we hold that it is 'fairly discernable' from the language and structure of the Clean Water Act that Congress intended to preclude pre-enforcement judicial review of administrative compliance orders issued by the EPA pursuant to 33 U.S.C. § 1319(a)(3). We further interpret the CWA to require that penalties for noncompliance with a compliance order be assessed only after the EPA proves, in district court, and according to traditional rules of evidence and burdens of proof, that the defendants violated the CWA in the manner alleged in the compliance order. Thus we do not see any sharp disconnect between the process given a citizen and the likely penalty that can be imposed under the CWA. Under these circumstances, preclusion of pre-enforcement judicial review does not violate the Sacketts' due process rights. The district court properly dismissed this case for lack of subject-matter jurisdiction."

 

    The High Court said, "The particulars of this case flow from a dispute about the scope of 'the navigable waters' subject to this enforcement regime. Today we consider only whether the dispute may be brought to court by challenging the compliance order -- we do not resolve the dispute on the merits."

 

    Despite that fact the Supreme Court said, "The reader will be curious, however, to know what all the fuss is about" and cited its various cases regarding "navigable waters" including: United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001); and Rapanos v. United States, 547 U. S. 715 (2006).

 

    In the opinion, the Supreme Court indicates in part, ". . .the Government notes that Congress passed the Clean Water Act in large part to respond to the inefficiency of then-existing remedies for water pollution. Compliance orders, as noted above, can obtain quick remediation through voluntary compliance. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review. That may be true -- but it will be true for all agency actions subjected to judicial review. The APA's presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into 'voluntary compliance' without the opportunity for judicial review -- even judicial review of the question whether the regulated party is within the EPA's jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity."

    The High Court ruled, "We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."

    Justice Ginsburg in a concurring opinion said in part, "The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the EPA's authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today's opinion does not reach out to resolve. Not raised by the Sacketts here, the question remains open for another day and case."

 

    In a lengthier concurring opinion, Justice Alito said, "The position taken in this case by the Federal Government -- a position that the Court now squarely rejects -- would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency(EPA) employees. The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency's mercy. . . Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem."

 

    Access the complete opinion and concurring opinions (click here). 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]

U.S. v. Oceanpro Industries, Ltd.

Mar 23: In the U.S. Court of Appeals, Fourth Circuit, Case No. 10-5239, 10-5284 and 10-5285. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Oceanpro Industries, Ltd., doing business as "Profish, Ltd." (Oceanpro), a seafood wholesaler in the District of Columbia, and two Oceanpro employees, Timothy Lydon (officer and fish buyer) and Benjamin Clough, III (fish buyer), were convicted for purchasing untagged and oversized striped bass, in violation of the Lacey Act, 16 U.S.C. § 3372(a)(2)(A) (prohibiting the purchase in interstate commerce of fish or wildlife sold in violation of state law). Oceanpro and Clough were also convicted for giving a false statement to Federal law enforcement officers during the course of the investigation of the crimes, in violation of 18 U.S.C. § 1001. In addition to imposing fines and prison sentences, the district court ordered the three defendants, jointly and severally, to pay Maryland and Virginia $300,000 in restitution, to be divided equally between the States.

 

    On appeal, Oceanpro and Clough challenge the District of Maryland's venue for the false statement offense because the false statement was made at the offices of Oceanpro in the District of Columbia, not in Maryland. In addition, all of the defendants contend that the order of restitution to the States was improper because the States did not have a sufficient interest in the illegally caught fish so as to make them "victims," as is required for receiving the benefit of a restitution order.

 

    The Appeals Court ruled, "We reject both arguments, concluding that venue for the false statement charge was proper in the District of Maryland and that Maryland and Virginia's interest in striped bass was sufficient to make the States 'victims' and therefore to justify an award to them of restitution. Accordingly, we affirm." In its conclusion, the Appeals Court added, "To qualify as victims, Maryland and Virginia need not even have been 'owners' of the striped bass, although they were after the fish were illegally caught; they merely had to have interests that were 'harmed' as a result of the defendants' criminal conduct. Because we have concluded that their interests were indeed harmed, the States were victims and therefore properly awarded restitution."

 

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

 

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Scarborough Citizens v. US Fish and Wildlife Service

Mar 22: In the U.S. Court of Appeals, First Circuit, Case No. 11-1597. Appealed from the District Court of Maine, Portland. The litigation concerns a segment of the Eastern Trail in Scarborough, Maine. The Eastern Trail is a public recreational trail which is part of a network of trails running along the Eastern Seaboard. The portion of the Trail at issue in this case is over three miles long, runs through a 32-acre tract of land owned by the state of Maine, and is used in part for recreation and to access the state-managed Scarborough Marsh Wildlife Management Area.

 

    An association and several individuals who regularly use the Trail for recreating and hunting, and who support wildlife conservation (Scarborough Citizens) brought suit against the United States Fish and Wildlife Service (USFWS) and its Northeast

Regional Director, as well as the Governor of Maine and the Commissioners of the Maine Department of Inland Fisheries and Wildlife (IFW) and Department of Environmental Protection (DEP). Scarborough Citizens alleged that easements conveyed by the State on the parcel of land violate the law.

 

    In its appeal, Scarborough Citizens argues that the State agency has repeatedly violated the Wildlife Restoration Act and federal regulations in varying respects by conveying nearly ten easements on various portions of the Eastern Trail between 1968 and 2005. The Appeals Court indicates, "The gist of the claim is that these conveyances resulted in uses of the land, initially purchased with funds from the Wildlife Restoration Act, contrary to the purposes for which it was initially acquired."

 

    The Appeals Court rules, ". . .the federal government funded the state's purchase of the property, but it neither funded nor approved the later grant of any of the easements. USFWS may have the power to withhold future funding from the state if the easement violated the regulations and the state does not remedy the violation, 50 C.F.R. § 80.14 (2010), but (to repeat) this power is discretionary. As we conclude that there is no reviewable federal action, neither the federal nor the state officials can be held liable for violating NEPA, as a major federal action is a prerequisite for either."

 

    Regarding violations of State law, the Appeals Court rules, "As we agree with the district court's dismissal of the federal claims in this suit, there is no abuse of discretion in its decision to decline to exercise supplemental jurisdiction over the remaining state law claims."

 

    Access the complete opinion (click here). [#Land, #CA1]

 

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BEPCO, L.P. v. Santa Fe Minerals, Inc.

Mar 15: In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-30986. Appeal from the United States District Court for the Western District of Louisiana. As explained by the Appeals Court, in 2008, BEPCO, L.P. sued Santa Fe Minerals, Inc. in Louisiana state court. In its petition, BEPCO set forth claims for indemnity and contribution in an attempt to recover money it had paid out in a settlement. Santa Fe and a group of subsequently named defendants then filed cross-claims and third-party claims against a multitude of insurers and underwriters, including Lloyd's London.

 

    Among the Lloyd's London insurers named by the defendants was the Insurance Corporation of Ireland, which is now known as ICAROM. In January 2011, ICAROM exercised its right to removal under the Foreign Sovereign Immunities Act. After BEPCO objected to removal, the district court remanded the case to state court. ICAROM now appeals the district court's remand order. The Appeals Court said, "Because we lack jurisdiction to review this order, we dismiss ICAROM's appeal."

 

    In April 2005, the landowners filed suit against BEPCO and Santa Fe Minerals, and alleged that contaminated water produced from oil wells on the "Tebow property" was disposed of in unlined earthen pits on their property. According to the landowners, some of the contaminated water entered a drinking water aquifer. As relief for their injuries, the landowners sought $320 million."

 

    On appeal, ICAROM argues that the district court exceeded its statutory authority by ordering a remand on the basis of an objection that was not raised within the 30-day limit prescribed by 28 U.S.C. § 1447(c). The Appeals Court indicates, ". . .the threshold question that controls us is whether we have jurisdiction to consider this petition. 'In re Adm'rs of Tulane Educ. Fund, 954 F.2d 266, 268 (5th Cir. 1992) (quoting In re Allied-Signal, Inc., 919 F.2d 277, 279 (5th Cir. 1990)). Generally, as stated above, [a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise[.]" 28 U.S.C. § 1447(d). "This proscription includes petitions for mandamus.' In re Adm'rs of Tulane Educ. Fund, 954 F.2d at 268 (citing Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723 (1977))."

 

    Access the complete opinion (click here). [#Remed, #CA5]

 

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Otay Land Co. v. United Enterprises Ltd.

Mar 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-55550. Appeal from the United States District Court for the Southern District of California. The Appeals Court indicates that, "Given the complexities of litigation and the escalating magnitude of attorneys' fees, it is no surprise that appellate review of attorneys' fees and costs has focused overwhelmingly on fees. Nonetheless, costs also can add up to a considerable amount and because fees are not always available by contract, statute or otherwise, an award of costs can take on heightened importance."

 

    The Appeals Court said, "Under 28 U.S.C. § 1919, when a suit is dismissed for lack of jurisdiction, the court "may order the payment of just costs." This case requires us to parse the term "just" and consider what constitutes "just costs." Here, the district court awarded costs to defendants on the ground that they were necessarily incurred in defending the action. Because the district court implied a presumption of award of costs that is absent in the permissive statute, and because it equated incurred costs with "just costs," we conclude that the court abused its discretion under § 1919."

 

    By way of background, the Appeals Court explains that Otay's Third Amended Complaint alleged that United Enterprises, comprised of former owners and operators of a shooting range in Chula Vista, California, was responsible under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act and § 7002 of the Resource Conservation and Recovery Act for removing lead and other pollutants from the real property in question, now owned by Otay. The complaint also included a claim under the California Hazardous Substances Account Act, as well as other state causes of action.

 

    On remand, at a hearing on costs, the district court advised the parties: "Counsel, I have to tell you, I have reviewed the case pretty thoroughly. I don't see any reason why costs should not be imposed in this case. Even though there is, perhaps, no prevailing party, it does certainly appear to me that just cause [sic] should be awarded to the defendants. It appears that this action was filed prematurely, and so, therefore, you know, it just makes sense to me to award costs to the defendants."

 

    In conclusion, the Appeals Court says, ". . .we conclude that the district court's standard is inadequate and erroneous. The award of costs may well have been appropriate here. But we do not take a position on the ultimate award of costs, a decision we leave to the district court. Rather, we reiterate that while § 1920 may be helpful in determining what costs to award once other relevant factors have been considered, its enumeration of cost items is not a substitute for determining whether an award of costs is 'just' under § 1919. Nor can the award of costs be presumed simply because a party was successful on a threshold ground and the costs were incurred. We vacate the cost award and remand to the district court to consider the 'just costs' issue consistent with the considerations outlined in this opinion."

 

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

 

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Turtle Island Restoration Network v. Department of Commerce

Mar 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-15783. Appealed from the United States District Court for the District of Hawaii. The Appeals Court explains that the Hawaii Longline Association appeals the approval of a consent decree entered into by plaintiff environmental groups and defendant Federal agencies affecting the regulation and management of the Hawaii shallow-set, swordfish longline fishery.

    Appellant challenges the district court's vacatur, under the terms of the consent decree, of a regulation increasing the limit on incidental interactions between longline fishing boats and loggerhead turtles and replacing the increased limit with a lower limit that was previously in effect. Appellant argues that the district court abused its discretion in approving a consent decree that violates Federal law by allowing the National Marine Fisheries Service to change duly promulgated rules without following the procedural rulemaking requirements of the Magnuson-Stevens Act and the Administrative Procedure Act.

    The Appeals Court affirmed the district court's vacatur. The Appeals Court concluded, "Because the Consent Decree is injunctive in nature, this court has jurisdiction under 28 U.S.C. § 1292(a)(1). The Consent Decree does not purport to make substantive changes to the Fishery regulations, so the rulemaking provisions of the Magnuson Act and the APA do not apply. The district court did not clearly err in finding that a return to lower incidental take limits is more protective of loggerhead turtles."

 

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

 

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Alliance For The Wild Rockies v. Salazar

Mar 14: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 11-35661 & 11-35670. Appealed from the United States District Court for the District of Montana. The Appeals Court explains that plaintiff environmental groups seek to enjoin the implementation of a statute, Section 1713 of the 2011 Appropriations Act, that orders the Secretary of the Interior to remove a portion of a distinct population of gray wolves from the protections of the Endangered Species Act (ESA) without regard to any statute or regulation that might otherwise apply.

 

    Section 1713 effectively undid an earlier district court decision that found that such an action by the government, a "partial delisting," would violate the ESA. Plaintiffs brought this action contending that Section 1713 violates the separation of powers. The district court rejected plaintiffs' claims on the ground that Congress had acted within its constitutional authority to change the laws applicable to pending litigation. The Appeals Court said, "Because this case is controlled by Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992), we affirm."

 

    The Center for Biological Diversity (CBD), one of the parties in the case indicated in a release on the decision, "Congress set a terrible precedent by passing this backdoor rider that took away protection from wolves. Scientists, not politicians, need to decide which species need protection. That's the law. And that's what makes sense if we're going to save animals and plants from extinction." CBD indicated that the rider marked the first time Congress has removed a plant or animal from the endangered species list. The rider directed the U.S. Fish and Wildlife Service to reissue a rule removing federal protections from northern Rocky Mountain wolves, despite ongoing litigation over the lawfulness of that delisting rule.

    CBD said, "Today's ruling holds that the rider is constitutional because it amends the Endangered Species Act by exempting the delisting rule from all law. The panel rejected arguments by conservation groups that Congress violated the separation-of-powers doctrine because the rider blocked judicial review and ordered an outcome, in ongoing litigation, without clearly amending the Endangered Species Act, effectively negating the role of the judiciary." CBD said, "We will continue to fight the good fight on behalf of wolves across the country. These incredible animals deserve a shot at recovery beyond just the few pockets where they eke out a living today."

    Access the complete opinion (click here). Access a release from CBD (click here).[#Wildlife, #CA9]

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Scottsdale Indemnity v. Village of Crestwood

Mar 12: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 11-2385, 11-2556, & 11-2583. Appealed from the United States District Court for the Northern District of Illinois, Eastern Division. The appeal in a diversity suit governed by Illinois law requires the Appeals Court to interpret the pollution exclusion from coverage found in most general liability insurance policies. The most common policy is the "commercial general liability policy" drafted by the Insurance Services Office and purchased by businesses to insure against losses arising out of general business operations. The policies at issue in this case are "public entity general liability policies," which are issued to municipalities to cover analogous risks and contain the same pollution exclusion as the commercial general liability policy.

 

    Two insurers sue for a declaration that they have no duty either to defend a series of tort suits brought against their insureds (the Village of Crestwood, Illinois, and past and present Village officials) or to indemnify the insureds should the plaintiffs in those suits prevail. The district court, holding that the allegations in the tort complaints triggered the pollution exclusion, granted summary judgment for the insurers, precipitating the appeals, which are multiple because there are a number of different declaratory-judgment suits.

 

    In 1985 or 1986 Crestwood's mayor and other Village officials learned from state environmental authorities that one of the wells was contaminated by perc (PCE—perchloroethylene, also known as tetrachloroethylene). Village officials promised the state authorities that the well would be used only in emergencies. But instead, for reasons of economy, the well continued to be used as a source of the daily Village water supply -- without disclosure to the Village's residents. The well remained in use until 2007, and not until 2009 was it sealed.

 

    Hundreds of Crestwood residents, having learned of the contamination of their water supply from a series of articles in the Chicago Tribune, sued the Village and past and present Village officials in an Illinois state court seeking damages for injury to health. In a parallel suit the State of Illinois seeks an injunction requiring the Village to finance "a site inspection to determine the

nature and extent of contamination" and take "all necessary steps to remediate the contamination." All these suits are pending.

 

    In its reasoning the Appeals Court said, "The insureds might as well be arguing that because the Village has never manufactured perc it is responsible for none of the harms that dispersing perc might cause. That would be like a murderer arguing that his victim was killed not by him but by his gun. The Village "caused" the contamination of its water supply (it could have sealed the well a quarter of a century ago, when it discovered the well was contaminated) in a perfectly good sense of the word. . .

 

    Finally, in affirming the district court the Appeals Court indicates, "The insurers conceded at oral argument that the duty to defend would be activated if so enigmatic a complaint were allowed. The complaints actually filed, however, describe in copious detail the conduct giving rise to the tort suits, and in doing so inadvertently but unmistakably acknowledge the applicability of the pollution exclusion."

 

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

 

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Shell Oil Company, Et Al v. U.S.

Mar 7: In the U.S. Court of Appeals, Federal Circuit, Case No. 2010-5161. Appealed from the United States Court of Federal Claims. As explained by the Appeals Court, the case is an appeal from a decision of the Court of Federal Claims requiring the United States to indemnify certain oil companies for environmental cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act of 1978, 42 U.S.C. § 9601, et seq. (CERCLA). The Court of Federal Claims initially entered judgment in favor of all four plaintiffs in this litigation: Shell Oil Company, Atlantic Richfield Company, Texaco Inc., and Union Oil Company of California (collectively, the Oil Companies). Upon discovering that his wife had a financial interest in the parent company of Texaco and Union Oil, however, Judge Loren A. Smith: (1) vacated his 2008 and 2009 summary judgment rulings in favor of the Oil Companies; (2) sua sponte severed Texaco and Union Oil from the lawsuit and directed the clerk of court to reassign their claims to a different judge; (3) reinstated his prior summary judgment decisions with respect to Shell and Arco only; and (4) entered final judgment against the government in the total amount of $68,849,505.88.

 

    The government appeals from the Court of Federal Claims' decision entering final judgment in favor of Shell Oil and Arco, and seeks reversal on a number of grounds, including the trial judge's treatment of the discovered financial conflict. The Appeals Court rules, "Because we find that the presiding judge was required to recuse himself under 28 U.S.C. § 455(b)(4), and that vacatur is appropriate in the circumstances of this case, we vacate the final judgment and the summary judgment orders on which it was premised, and remand with instructions that this case be reassigned to a different judge."

 

    The Appeals Court explains further, "Because we find that the trial judge's failure to recuse in this case was not harmless error, particularly given the risk of injustice and risk of under-mining the public's confidence in the judicial process, we conclude that the appropriate remedy is to vacate the district court's orders and remand the case."

 

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

 

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Solutia Inc. v. McWane, Inc.

Mar 6: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 10-15639. Appealed from the United States District Court for the Northern District of Alabama. Plaintiffs-Appellants Solutia, Inc. and Pharmacia Corporation (Solutia & Pharmacia) appeal the District Court's grant of summary judgment against their claims under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Solutia & Pharmacia also appeal the District Court's denial of their Federal Rule of Civil Procedure 59(e) motion to clarify or amend the summary judgment order.

 

    The appeal requires the Appeals Court to decide, as a matter of first impression, whether parties subject to a consent decree

may file claims for cost recovery under § 107(a) of CERCLA, or whether their remedies are limited to filing claims for contribution under § 113(f) of CERCLA. The Appeals Court notes that, as the Magistrate Judge noted in his thorough ruling granting summary judgment, "[t]his case is complex, in terms of its underlying facts, its litigation history, and the legal issues it presents."

 

    The Appeals Court ruled, ". . .Solutia & Pharmacia limited their arguments to the content of the Partial Consent Decree, and the definition of the Anniston Lead Site contained therein. They never actually argued prior to the grant of summary judgment, as they do now, that they 'voluntarily incurred costs unrelated to the Consent Decree.' Nor did Solutia & Pharmacia cite the properties by name that they now urge should be exempt from summary judgment.

 

    As the Magistrate Judge correctly noted, '[t]here is no burden upon the district court to distill every potential argument that could be made based on the materials before it on summary judgment. Rather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.' Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 598 (11th Cir. 1995). With this principle in mind, the Magistrate Judge did not abuse his discretion by denying Solutia & Pharmacia's Rule 59(e) motion to alter or amend the summary judgment order. . . we affirm the grant of summary judgment."

 

    Access the complete opinion (click here). [#Remed, #CA11]

 

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Bd of MS Levee Commissioners v. U.S. EPA

In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-60302. Appealed from the United States District Court for the Northern District of Mississippi. The Board of Mississippi Levee Commissioners (the Board) appealed the district court's decision granting summary judgment to U.S. EPA and a number of environmental organizations on the Board's claim that the EPA improperly exercised its power to veto a plan to reduce flooding in Mississippi, called the Yazoo Backwater Area Pumps Project. Specifically, the Board claimed that the EPA was barred from vetoing the Project under section 404(r) of the Clean Water Act. The Board contends that because all of the requirements of section 404(r) were met, the EPA could not have lawfully vetoed the Project.

 

    In response -- and for the first time on appeal -- the EPA claims that the Board does not have prudential standing to contest the EPA's decision. Additionally, the Board moved to supplement the record on appeal or, in the alternative, for the Appeals Court to take judicial notice of a Fish and Wildlife Mitigation Report that was not before the district court.

 

    The Appeals Court ruled, "As an initial matter, we deny the Board's motion to supplement the record on appeal or, in the alternative, for judicial notice. In addition, we conclude that the EPA waived its argument that the Board does not have prudential standing under the Administrative Procedure Act (APA). We affirm the district court's decision upholding the EPA's veto, as the record does not contain sufficient evidence to overturn the EPA's findings."

 

    Among other things, the Appeals Court notes that, "The record contains a document from the Corps' Vicksburg District detailing its Standard Operating Procedures. See U.S. Army Corps of Engineers, Water Resource Policies and Authorities: Application of Federal Regulations Implementing Section 404 to Civil Works Projects (Sept. 18, 1979). This document sets out three options for the Corps to meet its obligations under section 404: (1) seek an exemption pursuant to section 404(r) as part of the authorization process; (2) obtain a state water quality certification pursuant to section 401; or (3) seek an exemption under section 404(r) after authorization by submitting an EIS to Congress. The record demonstrates that the Corps pursued the second option, as it sought a state water quality certification under section 401. Additionally, after the Corps revised the Project in 2007, it again sought a state water quality certification. The Corps' interpretation of section 404 shows that it would either have to seek an exemption under 404(r) or comply with section 401. The fact that it instead sought a state water quality certification indicates that the Corps did not believe that section 404(r) applied. Additionally, this document demonstrates that the Corps was aware of the process for seeking a section 404(r) exemption and that, had it intended to do so, it would have followed the Standard

Operating Procedures."

 

    Access the complete opinion (click here). [#Water, #CA5]

 

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In Re: Katrina Canal Breaches Litigation

Mar 2: In the U.S. Court of Appeals, Fifth Circuit, Case Nos. 10-30249, 10-31054 & 11-30808. Appeals from the United States District Court for the Eastern District of Louisiana. As explained by the Appeals Court, decades ago, the Army Corps of Engineers (the Corps) dredged the Mississippi River Gulf Outlet (MRGO), a shipping channel between New Orleans and the Gulf of Mexico, as well as levees alongside the channel and around the city. The Corps's negligence in maintaining the channel, grounded on a failure to appreciate certain hydrological risks, caused levees to fail and aggravated the effects of 2005's Hurricane Katrina on the city and its environs.

 

    Claimants filed hundreds of lawsuits, many of which were consolidated before the district judge a quo. That court worked with plaintiffs' litigation committees to identify several categories of plaintiffs and individual "bellwether" plaintiffs. The opinion concerns three groups of bellwether plaintiffs, all suing the United States for flood damages. One group went to trial; three of its plaintiffs prevailed on all claims, and four did not. Another group was dismissed before trial when the government was found immune. The third has survived motions to dismiss and is proceeding to trial. All losing parties have appealed; the government has also petitioned for a writ of mandamus to stay the third group's trial pending issuance of this opinion. The Appeals Court ruled, "We affirm each of the judgments and deny the petition."

 

    The Appeals Court concluded, "The district court's careful attention to the law and even more cautious scrutiny of complex facts allow us to uphold its expansive ruling in full, excepting our minor restatement of FCA [Flood Control Act of 1928] immunity. Accordingly, we affirm the judgments in Robinson and Anderson, leaving each party as he was before this appeal. Similarly, we deny the government's petition for a writ of mandamus to stay the Armstrong trial."

 

    A report on the case in the New York Times (NYT) indicates that the Appeals Court, "upheld a ruling that the Army Corps of Engineers is liable for property owners' claims, saying shoddy work on a shipping channel caused billions of dollars in damage during Hurricane Katrina. The court ruled that the federal government is not immune from lawsuits blaming flood damage on the corps' operation and maintenance of the New Orleans navigation channel." Another report on the Jurist website indicates, "In upholding the district court's ruling, the Fifth Circuit allowed five plaintiffs to recover approximately $720,000."

 

    Access the complete opinion (click here). Access the NYT article (click here). Access the Jurist article (click here). [#Water, #CA5]

 

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San Luis & Delta-Mendota Water v. Department of Interior

Mar 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17594. Appealed from the United States District Court for the Eastern District of California. As explained by the Appeals Court, the appeal arises from a long-running conflict which has devolved to the present remaining dispute as to the classification of approximately 9,000 acre feet (AF) of water released between June 17 through 24 of 2004 from the Nimbus and New Melones reservoirs within California's Central Valley Project (the CVP or Project) by Defendant-Appellee United States Department of the Interior (Interior), acting through the United States Bureau of Reclamation (the Bureau).

 

    Plaintiff-Appellants San Luis & Delta-Mendota Water Authority and Westlands Water District contend that Interior abused its discretion in failing to apply the latter June 2004 releases against the 800,000 AF of CVP yield especially designated for fish, wildlife, and habitat restoration under section 3406(b)(2) of the Central Valley Project Improvement Act (CVPIA).

 

    The Appeals Court ruled that, "Because we find that the Water Agencies have standing and the accounting which Interior conducted for the latter June 2004 releases did not constitute an abuse of discretion, we affirm the district court's orders granting summary judgment in favor of the Federal Appellees and against Appellants.

 

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

State of Wyoming v. NPCA

Feb 29: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-8088, 10-8089, & 10-8090. Appealed from the U.S. District Court for the District of Wyoming. As explained by the Appeals Court, in 1974, the National Park Service (NPS) adopted a default rule prohibiting the use of snowmobiles in all national parks except on designated routes. 36 C.F.R. § 2.18(c). Pursuant to the default rule, NPS must promulgate a special regulation designating specific routes open to snowmobile use in a particular national park. Absent such a rule, no snowmobiles are allowed. See id. (Snowmobiles are prohibited except where designated).

 

    NPS originally regulated designated routes, choosing not to set a limit on the number of snowmobiles permitted in the parks. 36 C.F.R. § 7.13(l)(2) (2000). In 1997, environmental and recreational groups began seeking to limit the daily number of snowmobiles permitted in Yellowstone National Park, Grand Teton National Park, and the John D. Rockefeller Jr. Memorial Parkway (collectively, the parks). And over the past fifteen years, groups have continued to litigate the fate of snowmobiles in the parks.

 

    In the present cases, Petitioners the State of Wyoming and Park County, Wyoming filed petitions for review of agency action, challenging the 2009 rules governing snowmobile use in the parks. The district court dismissed the petitions for review, holding Petitioners lacked standing to pursue their claims. On appeal, Petitioners ask us again to weigh in on this ongoing saga. The Appeals Court affirmed in part, vacated in part, and remanded the case to the district court for further review.

 

    Explaining further, the Appeals Court said, "Because we hold Petitioners' procedural challenge to the 2009 temporary rule as to Yellowstone is moot, that portion of the district court's order must be vacated and remanded to the district court to dismiss that portion of the case for lack of jurisdiction. Wyoming, 587 F.3d at 1254. As to Petitioners' remaining claims, we conclude that Petitioners lack Article III standing to bring their substantive challenge to the 2009 temporary rule as to Yellowstone and their entire challenge as to the 2009 permanent rule as to Grand Teton because Petitioners' alleged injuries are merely speculative. Accordingly, we need not address prudential standing."

 

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

 

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U.S. v. General Electric Company

Feb 29: In the U.S. Court of Appeals, First Circuit, Case No. 11-1034. Appealed from the U.S. District Court of New Hampshire, Concord. The Appeals Court explains that Defendant-Appellant General Electric Company (GE) appeals from a district court judgment holding it liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA for response costs incurred by U.S. EPA in the unfinished cleanup of the Fletcher's Paint Works and Storage Facility Superfund Site in Milford, New Hampshire (Fletcher Site). GE also appeals the district court's judgment awarding the United States certain costs incurred in connection with the Fletcher Site's cleanup. The Appeals Court affirmed the judgment of the district court on both issues.

 

    The Appeals Court explained further, "We hold that the instant suit is a subsequent action under CERCLA and that the 1991 Action was an initial action as per § 9613(g)(2). GE does not claim -- nor do we believe it reasonably could -- that the 1991 Action was not an 'action for recovery of the costs referred to in section 9607 . . . .' 42 U.S.C. § 9613(g)(2). Although the United States asserted a claim for declaratory judgment regarding GE's liability in the 1991 Action, the parties concluded that resolving the matter via consent decree was to their mutual benefit. The United States and GE both walked away from the 1991 Action knowing they would likely meet again; GE did not concede liability and the United States reserved its right to pursue additional recovery costs at a later date. This agreement was reached according to routine CERCLA practice and was consistent with the United States' obligation to avoid drawn-out litigation. See 42 U.S.C. § 9622(a) ('[W]henever practicable and in the public interest . . . the President shall act to facilitate agreements . . . to expedite effective remedial actions and minimize litigation.' (emphasis added by Appeals Court)). GE's claims to the contrary are unavailing."

 

    Access the complete opinion (click here). [#Remed, #CA1]

 

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Sierra Club v. Tahoe Regional Planning Agency

Feb 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17891. Appealed from the United States District Court for the Eastern District of California. In a brief unpublished Memorandum the Appeals Court indicates that defendant-appellant Tahoe Regional Planning Agency (TRPA) appealed the district court's grant of summary judgment in favor of plaintiffs-appellees League to Save Lake Tahoe and Sierra Club, vacating TRPA's adoption of amendments to its regulation of the shorezone region of Lake Tahoe (the Shorezone Amendments). The Appeals Court affirmed in part, vacated in part, and remanded the case for further review.

 

    The Appeals Court states, "As TRPA concedes, the environmental impact statement (EIS) for the Shorezone Amendments failed to explain and evaluate the impact of replacing unauthorized boat buoys currently on Lake Tahoe with permitted buoys on a one for-one basis. This is due, at least in part, to the fact that TRPA compared the impact of the proposed project to an environmental baseline that included those existing, unauthorized buoys. We agree with the district court that 'in light of [these] concerns and TRPA's failure to identify any discussion in the EIS of why this baseline was chosen, the baseline is arbitrary and capricious in light of TRPA's failure to consider an important aspect of the problem and to articulate a rational connection between the facts found and conclusions reached.'

 

    "However, we vacate the district court's alternative holding that TRPA's 'use of the number of existing buoys, rather than the number of existing buoys authorized by TRPA, as the baseline, was contrary to the [Tahoe Regional Planning] Compact and therefore arbitrary and capricious.' Based on the record before us, we cannot say that the only way for TRPA to satisfy its obligations under the Compact would be to exclude unauthorized, existing buoys from the baseline. TRPA shall retain discretion on remand to determine the best way to explain and evaluate the impact of the proposed project and its choice of an appropriate baseline. Costs on appeal are awarded to TRPA."

 

    Access the complete Memorandum (click here). [#Water, #Land, #CA9]

 

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