32 Years of Environmental Reporting for serious Environmental Professionals
Wednesday, May 30, 2012
May 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-72943. On Petition for Review of a Final Agency Action of the Department of Interior (DOI), Bureau of Ocean Energy Management (BOEM). Other major environmental organizations who were part of the action included: Center For Biological Diversity; Defenders of Wildlife; Natural Resources Defense Council; National Audubon Society and several others.
As explained by the Appeals Court, "In these expedited petitions for review, we consider the allegations of Native Village of Point Hope et al. and Inupiat Community of the Arctic Slope (collectively, 'petitioners') that the Bureau of Ocean Energy Management (BOEM) failed to discharge its obligations under the Outer Continental Shelf Lands Act (OCSLA) in approving Shell Offshore Inc.'s plan for exploratory oil drilling in the Beaufort Sea. We have jurisdiction pursuant to 43 U.S.C. § 1349(c), and we deny the petitions."
In a footnote, the Appeals Court also said, "In a separate memorandum disposition filed concurrently with this opinion, we deny expedited petitions challenging BOEM's decision to approve an exploration plan for Shell Gulf of Mexico Inc. to drill for oil in the Arctic Ocean's Chukchi Sea. Because of the expedited nature of this case, no motions to stay the mandate will be granted. Petitions for rehearing and rehearing en banc may be filed with respect to this opinion."
In part, the Appeals Court ruled, "BOEM concluded that Shell's exploration plan complied with applicable requirements and would not cause serious harm or damage to the environment, but nevertheless required Shell to provide further documentation of its well-capping stack and containment system, as well as to meet certain additional conditions. This interpretation by BOEM of its own regulations is controlling unless plainly erroneous or inconsistent with the regulation. Auer, 519 U.S. at 461. Further, the conditions at issue here, which require Shell to seek additional authorizations before commencing drilling, are consistent with the statutory scheme's requirement that a leaseholder with an approved exploration plan obtain a permit to drill and other approvals that 'conform to the activities described in detail in [the] approved [exploration plan]' before conducting exploration activities. 30 C.F.R. § 550.281; see also 43 U.S.C. § 1340(d). For these reasons, petitioners' argument that BOEM impermissibly conditioned its approval is without merit."
Access the complete opinion (click here). [#Energy/OCS, #CA9]
GET THE REST OF TODAY'S NEWS (click here)
32 Years of Environmental Reporting for serious Environmental Professionals
32 Years of Environmental Reporting for serious Environmental Professionals
Posted by JPMcJ at 4:33 PM
Tuesday, May 29, 2012
May 25: In the U.S. Court of Appeals, Sixth Circuit, Case No. 10-3269. Appealed from the Southern District of Ohio at Columbus. In this important split decision, the Appeals Court overturns a district court decision regarding the rights of citizens to sue to force a state to enforce the Clean Air Act. The majority summarizes the case saying, "The State of Ohio, pursuant to legislation passed by its General Assembly and signed by its Governor, has chosen no longer to administer a particular federal regulation promulgated under the Clean Air Act. The plaintiffs brought this lawsuit to compel the State to administer the federal regulation. As authority for the suit, the plaintiffs invoke the Clean Air Act's citizen-suit provision.
"The State contends that the suit is not authorized by that provision. The district court agreed with the State's contention, but felt bound to rule otherwise in light of a case decided in 1980 by this court. The district court therefore entered an injunction expressly ordering the State to administer the federal rule. We conclude, based upon intervening Supreme Court precedent and the text and structure of the Clean Air Act itself, that the Act's citizen-suit provision does not authorize this lawsuit. We therefore reverse the district court's judgment and remand with instructions to dismiss the complaint."
The majority recounts that, "If a State fails to propose a SIP [state implementation plan], or proposes one that the EPA determines will not meet the Air Quality Standards, then the EPA may impose its own federal implementation plan for the State. Id. § 7410(c). In contrast, if the EPA approves a State's proposal, then the SIP is added to the Code of Federal Regulations and becomes federal law. At that point, the State's ability to modify the SIP is limited. . . The Act contemplates that each State will take primary responsibility for enforcing its SIP. If a State fails to enforce the SIP's requirements, the statute affords the EPA itself various means of enforcing them. First, the EPA may take action against violators directly. . . Second, the EPA can take over administration of the State's SIP. . . Third, the EPA can sanction the State. . ."
Then, the majority says, "To a limited extent, the Act also contemplates private enforcement of its provisions. Specifically, the Act includes a citizen-suit provision that allows 'any person' to file suit against 'any person . . . who is alleged to have violated . . . or to be in violation of . . . an emission standard or limitation under this chapter[.]'"
In 2006, the Ohio General Assembly passed legislation that allows the Director to issue permits to smaller emission sources -- those producing less than 10 tons per year of emissions ("small emitters") -- without first determining whether those sources will employ "best available technology," or BAT.Ohio's Governor signed this legislation and it took effect on December 1, 2006. While the provision is contrary to Ohio's SIP and EPA rejected the proposed amendment on procedural grounds, and thus the BAT requirement remains part of the SIP; the majority indicates that "EPA has chosen not to enforce the requirement itself, even though the Act empowers it to do so. . . Nor has the EPA chosen to use any of the various means at its disposal under the Act to induce Ohio to enforce the BAT requirement against small emitters.
In September 2008, the Sierra Club, joined by three Ohio residents, filed a citizen suit against the Director of Ohio's EPA. The complaint alleged, among other things, that the Director's refusal to make a BAT determination before issuing permits to small emitters constituted a "violation of  an emission standard or limitation" within the meaning of the Clean Air Act's citizen-suit provision.
In large part, the majority concludes: ". . .even the plaintiffs themselves have a remedy here. If they want to sue a regulatory agency, they can do so. They have simply chosen the wrong one. The agency that the Act authorizes them to sue is the federal EPA. The judgment of the district court is reversed, and the case remanded with instructions to dismiss the complaint."
The dissent justice argues that the majority has violated a basic principle of the Appeals Court in that it "overrules a published opinion of a previous panel." The previous case cited -- United States v. Ohio Department of Highway Safety, 635 F.2d 1195, 1204 (6th Cir. 1980). Even the majority indicates that, "The district court adhered to its view that the most natural reading of § 7604(a)(1) would not authorize the plaintiff's suit, but thought that the reasoning of Highway Safety, if not its specific holding, compelled the opposite conclusion."
The dissenting justice says, "The majority argues that because Highway Safety discussed a different part of the CAA, that opinion's definition of 'violation' is 'technically not binding on us here.' However, the majority fails to point to any legislative history that rebuts the presumption that words in the same statute have the same meaning. Instead, the majority seeks to distance itself from Highway Safety's holding by substituting its own interpretation of the CAA's legislative intent, and by drawing inferences of such intent from the overall scheme of the CAA. Importantly for our purposes, such arguments were equally applicable, and made and rejected, in Highway Safety. The majority opinion in Highway Safety examined the enforcement scheme of the CAA to determine if the relevant portion of the statute preferred a unimodal enforcement approach, and concluded that it did not. 635 F.2d 1195, 1201-04 (6th Cir. 1980).
The dissent concludes, "Sixth Circuit Rule 206(c) is unequivocal: Reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court en banc consideration [or intervening Supreme Court authority] is required to overrule a published opinion of the court. . . It is, frankly, not up to us to decide if Highway Safety is a 'bottle of dubious vintage.' Regardless of whether its 'contents turned to vinegar,' we must plug our noses and drink."
Access the complete opinion and dissent (click here). [#Air]
Wednesday, May 23, 2012
May 21: In the U.S. Court of Appeals, Sixth Circuit, case No. 09-5634. Appealed from the Eastern District of Kentucky at Lexington. The Appeals Court explains that Larry and Marsha Sims appealed a district court order holding that the Sims violated a conservation easement that was part of a real estate purchase agreement regarding The Nature Conservancy's (the Conservancy) sale and the Sims's purchase of a 100.10 acre farm in Kentucky. The district court granted the Conservancy's summary judgment motion after determining that the Sims violated the easement by filling in a sinkhole and thereby substantially altering the topography of the land. In a subsequent judgment, the district court awarded the Conservancy $99,796.41 in attorneys' fees, costs, and expenses. The Sims now appeal both judgments.
The Appeals Court ruled in a split decision that, "The district court properly ruled, however, that the Sims violated the plain language of the easement. The district court also did not abuse its discretion in awarding the Conservancy reasonable attorneys' fees and expenses." The real estate purchase agreement that included the conservation easement is at the heart of this litigation. Section 1 of the easement states that "the purpose of th[e] Easement [is] to assure that the Protected Property will be retained forever substantially undisturbed in its natural condition and to prevent any use . . . that will significantly impair or interfere with the Conservation Values of the Protected Property."
In the dissenting opinion, one Justice said, "My colleagues have overlooked and make no reference to or analysis of Section 3 of the easement agreement between the parties. This section allows the owner to engage in all normal rights of a landowner except those "expressly prohibited." The agreement does not expressly prohibit filling the sinkhole at issue. The sinkhole at issue was next to the defendant's home at his farm. It was an unsightly hole in the ground, a few feet deep, according to the pictures in the record, with half dead trees and brush growing out of it. Due to the irregular terrain, it could not be mowed, farmed, landscaped or used for a garden or anything else. It is an eyesore. . . No one in this case has attempted to show or describe what possible value the sinkhole has for purposes of historic and environmental preservation. . ."
Access the complete opinion (click here). [#Land, #CA6]
Posted by JPMcJ at 4:17 PM
Monday, May 21, 2012
May 18: In the U.S. Court of Appeals, Federal Circuit, Case No. 2011-5020, -5021, -5022, -5027, -5028, -5029. Appealed from the United States Court of Federal Claims. The Appeals Court explains that the consolidated appeal is the latest manifestation of the numerous contract disputes arising from the Government's failure to accept and dispose of radioactive waste from the nation's nuclear utilities. Specifically, the appeal flows from this court's decision in Yankee Atomic Electric Co. v. United States, 536 F.3d 1268 (Fed. Cir. 2008), which reversed the United States Court of Federal Claims' initial damages determination, and remanded for a calculation of damages according to the rate at which the Government was contractually obligated to accept the utilities' waste.
Yankee Atomic Electric Company (Yankee Atomic), Maine Yankee Atomic Power Company (Maine Yankee), and Connecticut Yankee Atomic Power Company (Connecticut Yankee) (collectively, the Yankees) originally brought this action seeking damages to compensate for the cost of storing spent nuclear fuel (SNF) and high-level radioactive waste (HLW) beyond the time that the Government promised by contract to begin storing that waste in a permanent and secure repository. The Appeals Court indicated that on remand, the trial court correctly calculated damages for dry storage construction costs, deferred costs of loading waste to the Department of Energy (DOE), and reracking costs.
However, the Appeals Court said, ". . .the trial court erred in denying Yankee Atomic's claim for a portion of its wet pool storage costs and Nuclear Regulatory Commission (NRC) fees. Unlike Consolidated Edison Co. of N.Y. v. United States, __ F.3d __, 2012 WL 1284402 (Fed. Cir. Apr. 16, 2012), this case does not include a claim for NRC fees that allegedly increased due to DOE's breach. Rather, the plaintiff here claims that no NRC fees would have been incurred by the inactive plant if the SNF had been removed in a timely manner pursuant to the Standard Contract. See Yankee Atomic Power Co. v. United States, 94 Fed. Cl. 678, 725 (2010). Therefore, this court affirms-in-part and reverses-in-part the trial court's damages award. . ."
Clarifying, the Appeals Court said, "The trial court wisely foresaw that this court could reverse its refusal to consider these costs. For this reason, the Court of Federal Claims found that Yankee Atomic had established these costs with reasonable certainty. Thus, this court need not remand for further damages calculations, but only for entry of judgment in an additional amount of $17,021,742. Yankee Atomic's claims for wet storage pool costs and NRC fees were within this court's mandate in Yankee II. As such, the trial court's denial of these costs is reversed. The remainder of the trial court's decision is affirmed. Judgment should be entered to award Yankee Atomic Electric Co. an additional $17,021,742."
Access the complete opinion (click here). [#Haz/Nuclear, #CAFed]
Posted by JPMcJ at 4:28 PM
Friday, May 18, 2012
May 17: In the U.S. Court of Appeals, Sixth Circuit, Case No. 10-4530. Appealed from Northern District of Ohio at Akron. OneBeacon American Insurance Company (OneBeacon) and American Motorists Insurance Company (AMICO) were insurers of the B.F. Goodrich Corporation (Goodrich) and, among others, were liable for environmental cleanup at the Goodrich plant in Calvert City, Kentucky. AMICO settled with Goodrich, but OneBeacon's predecessor, Commercial Union Insurance Company (hereinafter OneBeacon), refused to settle and went to trial. A State court jury found for Goodrich, and OneBeacon was ordered to pay $42 million in compensatory damages and $12 million in attorney fees. The State court also denied OneBeacon's request for settlement credits to reflect amounts paid by other insurers, such as AMICO, through settlements with Goodrich. OneBeacon then brought this action for equitable contribution in State court, which AMICO removed to Federal court. The district court adopted the rationale reflected in the State court's settlement-credit decision and granted AMICO's motion for summary judgment. The Appeals Court affirmed the judgment of the district court.
The Appeals Court said further, "Based on decisions by the Ohio courts and the logic expressed in GenCorp, Bondex, and Koppers, we agree that settlement can exhaust a settling insurer's policy, and that such exhaustion precludes a non-settling insurer from seeking equitable contribution from the settling insurers. Such a position best comports with the Ohio Supreme Court's proposition. . . Our conclusion also receives support elsewhere in Ohio law. See Ohio Rev. Code § 2307.28(B) ('The release or covenant discharges the person to whom it is given from all liability for contribution to any other tortfeasor.'). A decision allowing OneBeacon to pursue equitable contribution from AMICO would not only fail to encourage settlements, it would actively discourage such settlements. An insurer would have no incentive to settle with a policyholder if it knew that it would be liable to another insurer down the road. And an insurer considering going to trial would be economically rational in doing so if the expected value of prevailing at all exceeds the expected cost of defending the lawsuit."
Access the complete opinion (click here). [#Remed, #CA6]
Posted by JPMcJ at 4:11 PM
Wednesday, May 16, 2012
May 15: In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-30572. Appealed from the United States District Court for the Western District of Louisiana. J. Jeffrey Pruett, the president and chief executive officer of both Louisiana Land & Water Co., and LWC Management, who own and operate numerous wastewater treatment facilities, were charged with knowingly violating the Clean Water Act. After a ten-day trial, they were convicted on multiple counts and the Appeals Court affirmed the convictions and sentences.
The seventeen-count indictment charged four broad categories of offenses, all in violation of 33 U.S.C. §§ 1311(a), 1342, and 1319(c)(2)(A): (1) failure to provide proper operation and maintenance of the facilities; (2) failure to maintain monitoring results as required by the permits; (3) discharge in excess of effluent limitations; and (4) unpermitted discharge. Several counts were dismissed on the government's motion.
In part of its decision, the Appeals Court said, "The district court rejected the defendant's argument that gross negligence was required under the statute, and this court affirmed. The O'Keefe court explained, 'when the plain meaning of the statute is clear on its face, courts are required to give effect to the language of the statute according to its terms.' Id. at 279. The court then evaluated § 1115, and found 'nothing in the statute's terms suggesting that the words "misconduct, negligence or inattention," were ever meant to imply gross negligence or heat of passion . . . .' Id. This rationale is equally applicable to § 1319(c)(1)(A), and bolsters our conclusion that this subsection imposes an ordinary negligence standard."
The district court imposed the following fines on each Appellant, jointly and severally: (1) $310,000 for Pruett, (2) $300,000 for LLWC, and (3) $240,000 for LWC Management. Appellants objected to these fines on various grounds. The Appeals Court said "the fines imposed upon Appellants were reasonable."
Access the complete opinion (click here). [#Water, #CA5]
Posted by JPMcJ at 4:01 PM
Friday, May 4, 2012
May 3: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-2210. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. The North Carolina Department of Transportation and the Federal Highway Administration (collectively, the Agencies) recently approved construction of a new twenty-mile toll road in North Carolina linking Mecklenburg and Union Counties -- the Monroe Connector Bypass. Seeking to enjoin construction of the toll road, the North Carolina Wildlife Federation, Clean Air Carolina, and Yadkin Riverkeeper (collectively, the Conservation Groups) filed this suit, contending that the process by which the Agencies approved the road violated the National Environmental Protection Act (NEPA).
The district court granted summary judgment to the Agencies. The Conservation Groups appealed. The Appeals Court said, "Because the Agencies failed to disclose critical assumptions underlying their decision to build the road and instead provided the public with incorrect information, they did indeed violate NEPA. Accordingly, we must vacate the judgment of the district court and remand for further proceedings consistent with this opinion."
The Appeals Court ruled, "In sum, although we need not and do not decide whether NEPA permits the Agencies to use MUMPO's [Mecklenburg-Union Metropolitan Planning Organization's] data in this case, we do hold that by doing so without disclosing the data's underlying assumptions and by falsely responding to public concerns, the Agencies failed to take the required 'hard look' at environmental consequences. Shenandoah Valley, 669 F.3d at 196. We therefore vacate the judgment of the district court and remand so that the Agencies and the public can fully (and publicly) evaluate the 'no build' data."
Access the complete opinion (click here). [#Transport, #CA4]