Tuesday, April 24, 2012

LA Environmental Action Network v. City of Baton Rouge

Apr 17: In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-30549. Appealed from the United States District Court for the Middle District of Louisiana. The Louisiana Environmental Action Network filed a citizen suit against the City of Baton Rouge and the Parish of East Baton Rouge, alleging violations of the Clean Water Act. The Defendants filed a Rule 12(b)(6) motion to dismiss, asserting that the citizen suit was barred under the "diligent prosecution" provision of the Act. 33 U.S.C. § 1365(b)(1)(B). The district court granted the motion to dismiss, but on the ground that the 2002 consent decree mooted Plaintiff's claims.
    On appeal, Plaintiff contends that the district court erred in granting the Defendants' motion to dismiss. The Appeals Court reversed the district court's judgment and remanded the case for further proceedings consistent with its opinion. The Appeals Court said, ". . .we conclude that Congress has not provided a clear statement that the "diligent prosecution" bar is jurisdictional. Absent such a clear statement from Congress, we hold that the 'diligent prosecution' bar is a nonjurisdictional limitation on citizen suits. See Arbaugh, 546 U.S. at 516 ('[W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.').
    The Appeals Court explains, "Our conclusion that the CWA's 'diligent prosecution' provision is nonjurisdictional is buttressed by the Seventh Circuit's recent decision in Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011). There, the court held that the "diligent prosecution" provision of the Resource Conservation and Recovery Act ('RCRA') -- which is virtually identical to the 'diligent prosecution' provision of the CWA  -- is not jurisdictional. Id. at 492. Applying the guiding principles of the recent Supreme Court cases, the Seventh Circuit concluded that, because 'RCRA's limits on citizen suits appear in separate provisions that do not "speak in jurisdictional terms,"' the RCRA 'diligent prosecution' bar is a nonjurisdictional claim-processing rule. Id. (citations omitted).
    "Having determined that the CWA's 'diligent prosecution' bar is not jurisdictional, the question still remains whether the 'diligent prosecution' provision precludes LEAN's action in the present case. The Defendants assert that the EPA's continued enforcement of the 2002 consent decree constitutes diligent prosecution. Indeed, the Defendants point to the extensive remedial measures they are undertaking, as required by the 2002 consent decree, which are projected to cost the Defendants over $1 billion. The Defendants contend that LEAN's 'lawsuit stands as an impediment' to their efforts to achieve compliance with the CWA. However, LEAN asserts that the EPA is not diligently prosecuting the 2002 consent decree, noting the plants' ongoing, noncompliant discharges and the EPA's failure to impose stipulated penalties for these violations. LEAN argues that the issue of 'diligent prosecution' is a fact-intensive question that can only be answered after the proper development of a record. We take no position on these arguments. We think it wise for the district court to determine in the first instance whether LEAN's suit is precluded under the "diligent prosecution" provision. See Breaux v. Dilsaver, 254 F.3d 533, 538 (5th Cir. 2001) ('Although this court may decide a case on any ground that was presented to the trial court, we are not required to do so.') (citation omitted)."
    Access the complete opinion (click here). [#Water, #CA5]
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Conservancy Of Southwest Florida v. U.S. Fish & Wildlife Service

Apr 18: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 11-11915. Appealed from the United States District Court for the Middle District of Florida. The case concerns a challenge, brought by a number of environmental groups under the Administrative Procedure Act (APA) to the United States Fish and Wildlife Service's denial of petitions to designate critical habitat for the Florida panther. The Endangered Species Act of 1973 (ESA) empowers the Secretary of the Interior to designate "critical habitat" for species of fish, wildlife, or plants that have been identified by the Secretary as "endangered" or "threatened." The practical result of designating critical habitat is that Federal agencies must then, in consultation with the Secretary, ensure not only that their actions are "not likely to jeopardize the continued existence" of such species, but also that they do not "result in the destruction or adverse modification" of critical habitat.
    In this case, the environmental-advocacy groups petitioned the Fish and Wildlife Service, an agency within the Department of the Interior, to begin rulemaking to designate critical habitat for the Florida panther and, when the Service denied their petitions, sued in district court under the APA. They claimed that the denial of their petitions was arbitrary and capricious. The Appeals Court ruled, "We conclude, however, that the denial of their petitions is not subject to judicial review under the APA because it is 'committed to agency discretion by law.' 5 U.S.C. § 701(a)(2). Accordingly, we affirm the district court's order of dismissal."
    The Appeals Court noted further, "We take care to note that not every agency action that is in some sense discretionary is exempt from APA review. Otherwise there would be little sense in the APA's provision for abuse of discretion review. See Heckler, 470 U.S. at 829, 105 S. Ct. at 1654 (pointing out the tension, noted by some commentators, between a too-literal reading of the statutory phrase 'committed to agency discretion by law' and 5 U.S.C. § 706(2)(A)'s provision for review for abuse of discretion). Rulemaking inevitably requires the exercise of discretion, but courts nevertheless review agency rulemaking under the APA. . ."
    Access the complete opinion (click here). [#Wildlife, #CA11]
32 Years of Environmental Reporting for serious Environmental Professionals

Monday, April 23, 2012

Consolidated Edison Co. v. Entergy Nuclear Indian Point 2

Apr 16: In the U.S. Court of Appeals, Federal Circuit, Case No. 2010-5155, -5157. Appealed from the United States Court of Federal Claims. The Appeals Court explains that the case involves the Federal government's breach of its commitment to dispose of spent nuclear fuel.
    On appeal, there is no dispute as to the government's liability. However, the government and Entergy Nuclear Indian Point 2, LLC (ENIP) separately appealed the decision of the Court of Federal Claims (Claims Court) with respect to damages. See Consol. Edison Co. of N.Y., Inc. v. United States, 92 Fed. Cl. 466 (2010). The government appeals the Claims Court's award of two categories of damages: (1) ENIP's Unit 1 wet storage costs for the continued operation of its Unit 1 spent fuel pool; and (2) regulatory fees paid to the United States Nuclear Regulatory Commission (NRC). The Appeals Court rules, ". . .we reverse the Claims Court's award of damages for ENIP's Unit 1 wet storage costs and ENIP's NRC fees."

    ENIP cross appeals the Claims Court's denial of damages for: (1) ENIP's indirect overhead costs associated with its mitigation activities; and (2) ENIP's cost of financing its mitigation activities. The Appeals Court rules further that, "The issues on cross appeal are controlled by our recent precedents, which were not available to the Claims Court at the time of its decision. These recent precedents require that we reverse the denial of ENIP's overhead costs, and that we affirm the denial of ENIP's cost of capital."

    In further explanation, the Appeals Court notes, "In Yankee Atomic Electric Co. v. United States, we explained that 'damages for breach of contract require a showing of causation,' which in turn necessitates a 'comparison between the breach and non-breach worlds.' 536 F.3d 1268, 1273 (Fed. Cir. 2008). Thus, 'a plaintiff seeking damages must submit a hypothetical model establishing what its costs would have been in the absence of breach.' Energy Nw. v. United States, 641 F.3d 1300, 1305 (Fed. Cir. 2011) (emphasis added).

    "Here, ENIP's hypothetical model contemplated that if DOE had not breached the Standard Contract, the SNF stored in the Unit 1 spent fuel pool would have been removed in 1998.5 Thus, ENIP argues, in a non-breach world, ENIP would not have incurred any costs related to the continued operation of the Unit 1 spent fuel pool after acquiring Indian Point in 2001. The Claims Court agreed. Consol. Edison, 92 Fed. Cl. at 502-03. The problem with ENIP's theory is that it does not reflect the fact that in the non-breach world, Unit 2 SNF, rather than Unit 1 SNF, would have been removed from Indian Point in 1998, when Consolidated Edison still owned the Indian Point facility. . ."

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

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Monday, April 16, 2012

Subscribers & Readers Notice:

We will be taking our Spring publication break this week. 
We will resume publication on Monday, April 23, 2012.
During our break you may want to
follow some of the news on our:
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Thursday, April 12, 2012

Oral Arguments On Cross-State Air Pollution Rule

Apr 12: The U.S. Court of Appeals for the District of Columbia Circuit is hearing oral arguments in lawsuits over U.S. EPA's Cross-State Air Pollution Rule (CSAPR). The Cross-State Air Pollution Rule reduces the sulfur dioxide and oxides of nitrogen pollution emitted from coal-fired power plants across 28 eastern states. Supporters of the rule indicate that the pollution drifts across the borders of those states, contributing to dangerous -- and sometimes lethal -- levels of particulate and smog pollution in downwind states.

    EPA issued the rule under the "Good Neighbor" protections of the Clean Air Act, which ensure that the emissions from one state's power plants do not cause harmful pollution levels in neighboring states. On December 30, 2011, in one of the last official judicial environmental actions of 2011, 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 [See WIMS 1/3/12].

    According to EPA and supporters, CSAPR would reduce power plant sulfur dioxide emissions by 73 percent and oxides of nitrogen by 54 percent from 2005 levels. These emissions and the resulting particulate pollution and ozone (more commonly known as soot and smog) impair air quality and harm public health -- both near the plants and hundreds of miles downwind. They indicate that CSAPR would provide healthier air for 240 million Americans in downwind states. EPA estimates that the Cross-State Air Pollution Rule, when fully implemented, would: Save up to 34,000 lives; Prevent 15,000 heart attacks; Prevent 400,000 asthma attacks; and Provide $120 billion to $280 billion in health benefits for the nation each year.

    Nine states (CT, DE, IL, MA, MD, NY, NC, RI, VT), the District of Columbia, five major cities (Baltimore, Bridgeport, Chicago, New York and Philadelphia), Environmental Defense Fund (EDF), the American Lung Association, the Clean Air Council, NRDC, Sierra Club, and several major power companies (Calpine, Exelon and Public Service Enterprise Group) have all intervened in support of the clean air protections. On the other side are: other power companies (AEP, Southern, GenOn, Luminant) and states including AL, FL, GA, IN, KS, LA, MI, MS, NE, OH, OK, SC, TX, VA, WI .

    Access a release from EDF (click here). Access the briefs for and against the rule posted on the EDF website and link to fact sheets and economic benefits by states (click here). Access EPA's CSAPR website for complete background and details (click here). [#Air, #CADC]

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Wednesday, April 11, 2012

S.R.P. v. U.S. (National Park Service)

Apr 10: In the U.S. Court of Appeals, Third Circuit, Case No. 10-4011. On Appeal from the District Court of the Virgin Islands – Appellate Division Division of St. Croix. As explained by the Appeals Court, S.R.P., a minor, appealed from an order of the District Court dismissing his claims for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
    The action arose out of a 2004 incident in which S.R.P. was bitten by a barracuda while playing near the shore of Buck Island Reef National Monument (Buck Island Monument or the Monument). S.R.P., through his mother, filed suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., alleging that the Government negligently failed to warn of the danger posed by barracudas to shallow water bathers. The District Court dismissed the case on the basis that the discretionary function exception to the FTCA deprived it of jurisdiction, and thus immunized the Government from suit. The Appeals Court affirmed the District Court decision.
    Access the complete opinion (click here). [#Wildlife, #CA3]
32 Years of Environmental Reporting for serious Environmental Professionals