Snoqualmie Valley Preservation Alliance v. U.S. Army Corps

Jun 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35459. Appealed from the United States District Court for the Western District of Washington. The Appeals Court explains that Puget Sound Energy (PSE) maintains and operates a hydroelectric power plant at the 268-foot-high Snoqualmie Falls in the State of Washington. The Snoqualmie River drains a large watershed above the falls, and all of the water from this area must pass through a single narrow channel before it reaches the falls, creating a bottleneck during heavy rains. This subjects the City of Snoqualmie, located just upstream of the falls, to persistent and significant flooding.

 

    In the process of upgrading and modifying the plant, PSE plans to lower the dam located in the channel above the falls in order to mitigate these upstream flooding problems. PSE has already obtained a license for the project from the Federal Energy Regulatory Commission (FERC). Because the upgrade involves discharging fill material into the waters of the United States, which is prohibited under the Clean Water Act (CWA) without a permit, PSE sought verification from the U.S. Army Corps of Engineers (Corps) that it could proceed under a series of general nationwide permits (NWPs) authorizing certain discharges, rather than applying to the Corps for an individual permit.

 

    The Corps verified that it could. Downstream property owners formed the Snoqualmie Valley Preservation Alliance (Alliance) to challenge this decision, which they contend will exacerbate flooding problems below the falls. The district court granted summary judgment for the Corps and the Appeals Court affirm the district court decision.

 

    The Alliance challenged a Verification Letter as inadequate, however, the Appeals Court said, "The Verification Letter at issue here does state reasons for the action taken: the agency verified that PSE could proceed under section 404 of the CWA because the project had minimal individual and cumulative impacts and it complied with all terms and conditions of NWPs 3, 33, and 39. This conclusion is amply supported by facts in the administrative record. To require more would be contrary to the regulatory scheme, which devised the system of general nationwide permits to streamline the process, reduce redundancy, and conserve agency resources."

 

    The Appeals Court also responded to a NEPA challenge saying, "The Alliance bases its NEPA claim on the argument that the Corps was required by the CWA to inform PSE that it could not proceed under general nationwide permits, but instead must apply for an individual permit. However, because the Corps did not violate the CWA, it also did not violate NEPA. Verifying that permittees may properly proceed under a nationwide permit does not require a full NEPA analysis at the time of the verification."

 

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

 

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GOP & Industry Groups Say GHG Decision Is "Devastating Blow"

Jun 27: As WIMS reported yesterday the unanimous decision by the U.S. Court of Appeals, D.C. Circuit in the case of Coalition for Responsible Regulation v. U.S. EPA, and related consolidated cases upholding EPA authority to regulated greenhouse gases (GHG) under the Clean Air Act [See WIMS 6/26/12] was widely applauded by Democratic leaders and environmental organizations. Reactions from Republican leaders and industry groups were not available at press time. The following reactions of Michigan's Representative Fred Upton, Senator Inhofe and the industry coalition involved in the lawsuits were released later in the day.

 

    House Energy and Commerce Committee Chairman Fred Upton (R-MI) issued a statement in response to the ruling saying, "While some in Washington may claim today's court ruling is a win for the Obama administration, it delivers a devastating blow to the U.S. economy and American consumers. After enduring 40 consecutive months of higher than eight percent unemployment, we cannot afford the EPA's continued expansion of red tape that is slowing economic growth and threatening to entangle millions of small businesses. EPA's rules will impose billions of dollars in compliance and delay costs and represent an unprecedented expansion of EPA authority that has the potential to affect virtually every sector of the economy and touch every household. We have a legislative solution that stands up for American workers. The House passed my bill, H.R.910, to stop this power-grab by the Obama administration and block EPA's cap-and-trade agenda that threatens to drive energy prices higher, destroy jobs, and hamstring our economic recovery.

   

    Senator James Inhofe (R-OK), Ranking Member of the Senate Committee on Environment and Public Works, and a major critic of the Administration's GHG regulations and climate change science commented the decision saying, "This 'big win' for the Obama EPA is a huge loss for every American, especially those in the heartland states which rely on fossil fuel development and the affordable energy that comes with it. EPA's massive and complicated regulatory barrage will continue to punish job creators and further undermine our economy. This is the true agenda that President Obama is trying to hide under disingenuous reelection rhetoric about an 'all of the above' approach to energy.

    "And what will Americans get in return for this regulatory nightmare? Even EPA Administrator Lisa Jackson said that these rules will have no effect on the climate so it will be all pain for no environmental gain. Today's court ruling should be a wake-up call for the United States Senate to do its job and prevent what an author of the Clean Air Act amendments, Representative Dingell, called a 'glorious mess.' Last year 64 Senators went on record as wanting to stop these devastating greenhouse gas regulations from taking effect -- it's time they actually do so."

    "The Obama administration is attempting to regulate greenhouse gases in the absence of legislation. Congress and the American people rejected cap-and-trade legislation, but unelected bureaucrats at the EPA are pushing through harmful regulations that will serve as a massive energy tax on American businesses and families. H.R.910 will reassert Congress' authority to direct public policy and will protect Americans from EPA's overreach."

    National Association of Manufacturers (NAM) President and CEO Jay Timmons released a statement on behalf of the industry coalition on the ruling by the U.S. Court of Appeals for the D.C. Circuit saying, "Today's ruling is a setback for businesses facing damaging regulations from the EPA. The Clean Air Act was not designed to regulate greenhouse gases, and even the EPA said that it could not comply with the statute as written to implement these regulations.

    "The EPA's decision to move forward with these regulations is one of the most costly, complex and burdensome regulations facing manufacturers. These regulations will harm their ability to hire, invest and grow. By moving forward, the EPA is adding to the mounting uncertainty facing manufacturers of all sizes. We will be considering all of our legal options when it comes to halting these devastating regulations. The debate to address climate change should take place in the U.S. Congress and should foster economic growth and job creation, not impose additional burdens on businesses."

    In a release, NAM said it is "reviewing the court's decision and will consider further legal options on appeal. The EPA's greenhouse gas regulations will eventually require new burdensome permitting requirements for more than 6 million stationary sources, including 200,000 manufacturing facilities, 37,000 farms and millions of other sources such as universities, schools, hospitals and even American homes -- impacting every aspect of our economy."

    The members of the coalition include American Frozen Food Institute; American Fuel & Petrochemical Manufacturers; American Petroleum Institute; Brick Industry Association; Copper & Brass Fabricators Council, Inc.; Corn Refiners Association; Glass Association of North America; Glass Packaging Institute; Independent Petroleum Association of America; Indiana Cast Metals Association; Michigan Manufacturers Association; Mississippi Manufacturers Association; National Association of Home Builders; National Association of Manufacturers; National Oilseed Processors Association; NFIB Small Business Legal Center; North American Die Casting Association; Specialty Steel Industry of North America; Tennessee Chamber of Commerce & Industry; Western States Petroleum Association; West Virginia Manufacturers Association; and Wisconsin Manufacturers & Commerce.

    Access the statement from Rep. Upton (click here). Access the statement from Sen. Inhofe (click here). Access the NAM release (click here). Access the complete opinion (click here). [#Climate, #Air, #MIAir, #MIClimate, #CADC]

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Building Industry Association of WA v. WA State Bldg Code

Jun 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35207. Appeal from the United States District Court for the Western District of Washington. The Appeals Court explains that the Energy Policy and Conservation Act of 1975 (EPCA), establishes nationwide energy efficiency standards for certain residential home appliances, and expressly preempts state standards requiring greater efficiency than the Federal standards. It nonetheless exempts from preemption state building codes promoting energy efficiency, so long as those codes meet certain statutory conditions. This case is a challenge to the State of Washington's Building Code brought by the Building Industry Association of Washington (BIAW), along with individual builders and contractors.

 

   The impetus for the challenge is the State's 2009 requirement that new building construction meet heightened energy conservation goals. This is the first case at the appellate level to consider EPCA's preemption-exemption provision. Plaintiffs-

Appellants (Plaintiffs) argue that the Building Code does not satisfy EPCA's conditions for exemption. The district court, however, held that Washington had satisfied EPCA's conditions, and therefore was not preempted. The Appeals Court affirmed the district court decision and explains that to escape preemption, a state's building code must satisfy the seven conditions codified in 42 U.S.C. § 6297(f)(3). The two at issue here are § 6297(f)(3)(B) and (C).

 

    Under subsection (B), a state's building code cannot require a covered product -- energy consuming fixtures such as water heaters and refrigerators -- to be more efficient than the standards established by the United States Department of Energy

(DOE"). The State of Washington's Building Code requires builders to reduce a building's energy use by a certain amount, and provides a number of options from which a builder may choose how to meet that requirement. Some of the options involve the installation of products that have an efficiency that exceeds the federal standards. These options, according to the builders, also happen to be cheaper than the other options. The builders contend that they are therefore being "required" to use products that exceed the Federal standards, in violation of subsection (B).

 

    On the subsection (B) issue the Appeals Court rules, "We hold that a builder is not 'required' to select an option, within the meaning of subsection (B), simply because there is an economic incentive to do so. Section 6297(f)(3)(B) is violated when the code requires a builder, as a matter of law, to select a particular product or option. The Supreme Court has recognized this to be what a requirement entails. See Bates v. Dow Agrosciences LLC, 544 U.S. 431, 445 (2005) (rejecting a preemption challenge, and holding that the term 'requirement' in a different statute means 'a rule of law that must be obeyed'). Plaintiffs in this case are thus not 'required' to choose the less expensive, more efficient option."

 

    Plaintiffs' also challenge under § 6297(f)(3)(C) of the Federal law which the Appeals Court said "is more factual in nature." Subsection (C) provides that a building code must grant credits on the basis of how much each option reduces energy use or cost, without favoring particular products or methods. Plaintiffs argue that the Building Code here does not satisfy this condition, because they contend its credits are not granted on a one-for-one equivalent energy use basis. The Appeals Court says their argument relies solely upon a BIAW member's declaration. The district court rejected the declaration after finding that the witness was not qualified as an expert to challenge the State's calculations of equivalent energy use savings produced by using particular products or building methods.

 

    The Appeals Court rules, "We hold there was no abuse of discretion in disallowing that evidence. The evidence that is in the record supports the district court's conclusion that the state-assigned credit values satisfy the 'one-for-one equivalent energy use' requirement of subsection (C). . . We therefore hold that the Washington Building Code satisfies the conditions Congress established for enforcement of state and local building codes consistent with federal energy law and we affirm the judgment of the district court in favor of the State."

 

    Access the complete opinion (click here). [#Energy/Efficiency, #CA9]

 

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State of VT Dept. of Pub. Serv v. Nuclear Regulatory Commission

Jun 26: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1168 & 11-1177. On Petition for Review of a Final Order of the U.S. Nuclear Regulatory Commission. The Vermont Department of Public Service (DPS) and the New England Coalition (NEC) petition for review of a decision of the Nuclear Regulatory Commission (NRC, Commission), issuing to Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively, Entergy) a renewed license to operate the Vermont Yankee Nuclear Power Station (Vermont Yankee). The petitioners contend the license renewal was unlawful because Entergy failed to furnish a state Water Quality Certification (WQC) which they assert was required under section 401(a)(1) of the Clean Water Act (CWA).

 

    The Appeals Court ruled, "We conclude the petitioners waived their WQC objection because they repeatedly failed to present it directly to the Commission and thereby failed to exhaust their administrative remedies." Despite the fact that Petitioners had numerous administrative opportunities, which the Appeals Court detailed, the petitioners contend it would have been futile to raise

the section 401 issue before the Commission, which they said, "has clearly held that the issue of whether an applicant possesses a required CWA authorization is not appropriate for consideration as a contention in NRC licensing proceedings." .

 

    The Appeals Court said, "None of the decisions they cite, however, supports their contention the Commission would have refused to decide the issue here, namely, whether an applicant for license renewal has obtained the requisite section 401 WQC before a license issues. . . we conclude that the petitioners failed to exhaust their administrative remedies before the Commission and thereby waived the right to raise their section 401 objection on judicial review. Accordingly, we deny their petitions for review."

 

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

 

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Appeals Court Rules Unanimously In Favor Of EPA GHG Regulations

Jun 26: Coalition for Responsible Regulation v. U.S. EPA; American Chemistry Council v. U.S. EPA; and various intervenors including the State of Michigan, et al. In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1322, consolidated with a number of cases. On Petitions for Review of Final Actions of the Environmental Protection Agency. And, consolidated with dozens of cases and involving hundreds of attorneys. This is a highly controversial, complicated and critically important decision regarding U.S. EPA's ability to regulate greenhouse gases under the Clean Air Act. A unanimous Appeals Court has provided an complete ruling in support of U.S. EPA and Administration.

 

    The Appeals Court outlines the history as follows: Following the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007) -- which clarified that greenhouse gases are an "air pollutant" subject to regulation under the Clean Air Act (CAA) -- U.S. EPA promulgated a series of greenhouse gas-related rules. First, EPA issued an Endangerment Finding, in which it

determined that greenhouse gases may "reasonably be anticipated to endanger public health or welfare." See 42 U.S.C. § 7521(a)(1). Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.

 

    Petitioners, various states and industry groups, challenge all these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious. The Appeals Court rules, "But for the reasons set forth below, we conclude: (1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; (2) EPA's interpretation of the governing CAA provisions is unambiguously correct; and (3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions."

 

    The Appeals Court explains the organization of the seven part, 82-page decision saying, "This opinion proceeds in several steps. Part II explains why the Endangerment Finding was neither arbitrary nor capricious, while Part III does the same for the Tailpipe Rule. Turning to stationary source regulation, Part IV examines whether any petitioners may timely challenge EPA's longstanding interpretation of the PSD statute. Because we conclude that they may, Part V addresses the merits of their statutory arguments, and explains why EPA's interpretation of the CAA was compelled by the statute. Next, Part VI explains why petitioners lack standing to challenge the Timing and Tailoring Rules themselves. Finally, Part VII disposes of several arguments that have nothing to do with the rules under review, and thus are not properly before us."

 

    On the issue of the scientific basis for the endangerment finding, the Appeals Court said in part, "State and Industry Petitioners next challenge the adequacy of the scientific record underlying the Endangerment Finding, objecting to both the type of evidence upon which EPA relied and EPA's decision to make an Endangerment Finding in light of what Industry Petitioners view as significant scientific uncertainty. Neither objection has merit. . . Based on this scientific record, EPA made the linchpin finding: in its judgment, the 'root cause' of the recently observed climate change is 'very likely' the observed increase in anthropogenic greenhouse gas emissions. . . EPA had before it substantial record evidence that anthropogenic emissions of greenhouse gases 'very likely' caused warming of the climate over the last several decades. . ."

 

    On the subject of the Endangerment Finding being arbitrary and capricious and "just a "subjective conviction" of EPA, the Appeals Court said in part, "EPA relied on a substantial record of empirical data and scientific evidence, making many specific and often quantitative findings regarding the impacts of greenhouse gases on climate change and the effects of climate change on public health and welfare. Its failure to distill this ocean of evidence into a specific number at which greenhouse gases cause "dangerous" climate change is a function of the precautionary thrust of the CAA and the multivariate and sometimes uncertain nature of climate science, not a sign of arbitrary or capricious decision-making."

 

    On the subject of standing, the Appeals Court summarizes the arguments and its ruling as follows: "Petitioners fall far short of these 'irreducible constitutional . . . elements' of standing, id. at 560. Simply put, Petitioners have failed to establish that the Timing and Tailoring Rules caused them 'injury in fact,' much less injury that could be redressed by the Rules' vacatur. Industry Petitioners contend that they are injured because they are subject to regulation of greenhouse gases, Coalition for Responsible Reg. Timing & Tailoring Br. 14. State Petitioners claim injury because they own some regulated sources and because they now carry a heavier administrative burden. State Pet'rs' Timing & Tailoring Br. 22–23. But as discussed above, see supra Part V, the CAA mandates PSD and Title V coverage for major emitters of greenhouse gases. Thus, Industry Petitioners were regulated and State Petitioners required to issue permits not because of anything EPA did in the Timing and Tailoring Rules, but by

automatic operation of the statute. Given this, neither the Timing nor Tailoring Rules caused the injury Petitioners allege: having to comply with PSD and Title V for greenhouse gases."

 

    Senator Barbara Boxer (D-CA), Chairman of the Environment and Public Works Committee, issued a brief statement saying, "The Appeals Court's decision to unambiguously affirm EPA's clean air efforts to reduce dangerous carbon pollution is a big victory for the health of the American people."

 

    Representative Ed Markey (D-MA.), Ranking Member on the House Natural Resources Committee and a senior member of the Energy and Commerce Committee, released a statement saying, "Today's ruling is a grand slam for the EPA and the health of the American people, and another strikeout for the fossil fuel special interests trying to block clean energy progress. The DC Appeals Court now joins the Supreme Court in saying that climate science is sound and the EPA has the authority to regulate dangerous heat-trapping emissions under the Clean Air Act. Three years ago today, the House passed the Waxman-Markey climate and clean energy bill, and the problems addressed by that legislation remain with us today. With the science affirmed and the authority granted, EPA should continue their important work to address the greatest challenge of our generation in dealing with global warming. At the same time, Congressional Republicans should stop denying the science and start working with Democrats to craft more comprehensive and bipartisan responses to the threat posed by global warming."

 

    Sierra Club issued a release on the decision calling it "a sweeping victory for public health and clean air." Michael Brune, executive director of the Sierra Club said, "Today's decision is a huge victory for American families and everyone concerned about protecting the air we breathe and the health of our children. The role of the Clean Air Act in protecting our families from dangerous carbon pollution and climate disruption should never have been in doubt, and this decision is a big step forward in putting the well-being of Americans before the boundless profits of big polluters. Carbon pollution is dangerous to our planet and our health. The Environmental Protection Agency has the right and the duty to keep our communities healthy and now the path is clear for them to curb this dangerous pollution, which threatens our families and planet. We applaud the court's decision and stand with the EPA as they continue to fight for the health of American families."

 

    Fred Krupp, President of Environmental Defense Fund (EDF) said, "Today's ruling by the court confirms that EPA's common sense solutions to address climate pollution are firmly anchored in science and law. This landmark decision will help secure a healthier and more prosperous future for all Americans. Today is a good day for climate progress in America and for the thin layer of atmosphere that sustains life on Earth." EDF's outside legal counsel Sean Donahue, who presented oral arguments to the court in defense of these protections said, "EPA's reasonable steps to reduce climate pollution will benefit our environment, our economy, our health and our national security. Today's court ruling will help our country move forward toward a clean energy future."

 

    [Note: No immediate reaction to the ruling was available from industry or state government participants at press time.]

 

    Access the complete opinion (click here). Access the statement from Sen. Boxer (click here). Access the statement from Rep. Markey (click here). Access a release from Sierra Club (click here). Access the statement from EDF (click here). [#Climate, #Air, #MIAir, #MIClimate]

 

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Georgia-Pacific v. Northwest Environmental Defense Center

Jun 25: The U.S. Supreme Court has agreed to hear the appeal of Georgia-Pacific (GP) West, Inc. v. Northwest Environmental Defense Center (NEDC), Sup.Ct. No. 11-347, commonly referred to as the "forest roads" case. The case asks the Supreme Court to overturn a 2011 ruling by a three-judge panel of the U.S. Ninth Circuit Court which GP says reverses 35 years of law governing how rainwater runoff from forest roads is managed [See WIMS 12/14/12]. The Ninth Circuit's ruling said forest road operators in the states under its jurisdiction will be required to obtain Clean Water Act discharge permits for ditches, drains and culverts that channel rain runoff from their roads -- treating rain runoff the same as industrial sources.

    Mike Adams, Georgia-Pacific senior vice president of sourcing and fiber supply said, "We are pleased for the 2.5 million people and thousands of local economies that depend on forest products that the Supreme Court has decided to hear our appeal in this critical case. Today's decision is a significant step forward in protecting these jobs, especially in those states under the Ninth Circuit's jurisdiction. We along with numerous experts continue to believe the long-standing practice of regulating forest roads through state forestry best management practices is the most environmentally responsible way to oversee management of the nation's forest roads. We look forward to arguing our case before the Supreme Court in its next term."

    According to a release from GP, the U.S. Forest Service has estimated that, if the Ninth Circuit ruling were applied nationally, it alone would have to obtain 400,000 permits. Oregon counties estimate the decision will cost them $56 million to secure permits for their 20,000 culverts. Federal and state regulators will have to completely redesign forestry programs that have been in place for a generation. In the states of the Ninth Circuit -- Washington, Oregon, California, Arizona, Nevada, Idaho, Montana, Alaska and Hawaii -- the timber industry employs a million people. Nationally, it supports 2.5 million jobs and $87 billion a year in wages.

 

   Timothy Bishop, lead appellate attorney for the forestry industry said, "The Ninth Circuit's decision changing 35 years of law was a mistake in law as well as a mistake for jobs and the environment. EPA has said for 35 years that the most effective approach to managing rainwater runoff from forest roads is through state forestry best management practices designed for local conditions. In place of this long-standing and successful regulatory method, the Ninth Circuit substituted the rigid and costly national permitting scheme used to regulate discharges from factories, chemical plants, mines and other industrial facilities. The circuit's decision is contrary to the plain meaning of the law. And its requirements make no economic or environmental sense when applied to tens of thousands of miles of remote and dispersed roads -- roads that are used for multiple purposes including fire-fighting, recreation and intermittent logging.

 

    NEDC had advised the Supreme Court not to take on the controversial logging pollution lawsuit that began in Oregon. Mark Riskedahl of NEDC said, "If there was regulation of pollution coming off of highways and off of even residential streets, why shouldn't there be regulation of pollution coming off of industrial logging roads." Federal lawyers filed a brief to the court saying the court should leave it to Congress and the Environmental Protection Agency, to sort the issue out.

 

Access the SupCt docket for the case (click here). Access a release from GP (click here). Access a release from NEDC and link to the Federal brief (click here). [#Water, #Land]

 

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State of Oklahoma, et al v. U.S. EPA

Jun 22: In the U.S. Court of appeals, Tenth Circuit, Case Nos. 12-9526 & 12-9527. The Appeals Court issued a brief order indicating, "Petitioners, the State of Oklahoma, Oklahoma Industrial Energy Consumers, and the Oklahoma Gas & Electric Company, seek a stay pending review of that portion of the Environmental Protection Agency's final rule requiring the reduction of sulfur dioxide emissions at four electric generating units. We conclude that the stay factors have been met in this case, and we therefore grant the motion for stay pending hearing by the merits panel."

 

    The Oklahoma Attorney General, Scott Pruitt, issued a statement in response to the order saying, "This is a significant victory for the State of Oklahoma, and it temporarily prevents the EPA from enforcing a federal plan that will raise utility rates for Oklahoma consumers. The EPA exceeded its authority under the Clean Air Act and we will continue to challenge that decision to preserve the ability of Oklahoma stakeholders to create an Oklahoma solution."

 

    On June 7, U.S. EPA issued a final rule [77 FR 33642-33659], effective August 6, 2012, that finalizes revisions to the rules pertaining to the regional haze program. The rule finalizes EPA's finding that the trading programs in the Transport Rule, also known as the Cross-State Air Pollution Rule (CSAPR), achieve greater reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas than source-specific Best Available Retrofit Technology (BART) in those states covered by the Transport Rule [See WIMS 6/7/12].

 

    Access the Order (click here). Access the statement from the OK AG (click here). Access an AP article on the order (click here). Access the complete FR Final Rule (click here). Access an EPA fact sheet on the final action (click here). Access EPA's Regional Haze Program website for more information (click here). [#Air]

 

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Defenders Of Wildlife v. Bureau Of Ocean Energy Management

Jun 22: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 11-12598 & 11-12599. Petitions for Review of a Decision of the Department of the Interior. The case concerns a challenge to an exploratory drilling plan under the Outer Continental Shelf Lands Act (OCSLA). 43 U.S.C. § 1331 et seq. The Bureau of Ocean Energy Management (BOEM) approved the Shell Exploration Plan S-7444 (Shell EP) to conduct drilling in the Gulf of Mexico. The Shell EP covers ten exploratory wells on offshore Alabama leases in the Central Gulf of Mexico between 7,100 and 7,300 feet deep.

 

    The case is a consolidated appeal in which Petitioners, Defenders of Wildlife, et al. and Gulf Restoration Network, et al. (Petitioners), filed comments on the Shell EP, participated in the administrative proceeding, and filed the petition for review. The only issues on petition for review are whether the Shell EP violates the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), 16 U.S.C. § 1536 et seq. The Appeals Court ruled, "After reviewing the record, reading the parties' briefs, and having the benefit of oral argument, we deny the petition for review."

 

    The Appeals Court said, "Petitioners insist, BOEM's decision not to prepare an EIS and its subsequent FONSI is a violation of NEPA. Yet, Petitioners simply cannot overcome our extremely deferential 'arbitrary or capricious' standard of review." Among other items, Petitioners argue that BOEM failed to include a site-specific analysis of potential catastrophic spills and underestimated the likelihood of a spill. However, the Appeals Court indicates, "To the contrary, the EA extensively analyzes the risks and consequences of such an event. Appendix B of the EA, 'Catastrophic Spill Event Analysis,' evaluates the impact of a low-probability catastrophic spill. After taking into account regulations put into effect after the Deepwater Horizon disaster, BOEM determined that the risk of another spill was low. While this analysis is derived from a generalized scenario, it is based on the only two large spill disasters in the Gulf of Mexico -- the 1979 Ixtoc blowout in the Bay of Campeche Mexico and the 2010 Deepwater Horizon disaster. An oil spill is an unexpected event, and its parameters cannot be precisely known in advance. Thus, it is appropriate for BOEM to summarize potential impacts resulting from a hypothetical oil spill."

 

    Further the Petitioners argued that BOEM's failed to evaluate the worst case discharge spill of 405,000 barrels of oil per day, but the appeals Court ruled, ". . .BOEM is not required to base its NEPA analysis on a worst case scenario. . . NEPA does not require a 'worst case discharge' analysis. Thus, we conclude that BOEM's reliance on analysis based on a lower spill rate, which it determined to be more likely than the worst case discharge, was not arbitrary or capricious or in violation of NEPA."

 

    Additionally, Petitioners' final complaint with BOEM's site-specific analysis is that the EA fails to discuss some endangered species present in the Gulf, including the piping plover, Gulf sturgeon, and various species of beach mice. The Appeals Court said, "Petitioners suggest that every EA requires a detailed analysis of each species that could possibly be affected by a potential oil spill. NEPA clearly does not require such analysis. An EA is intended to be a document that '[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].' 40 C.F.R. § 1508.9(a)(1). Although the EA does not describe every possible environmental effect of an oil spill, BOEM took a hard look at environmental impacts, and its site-specific analysis of expected drilling operations is consistent with NEPA."

 

    Access the complete opinion (click here). [#Energy/OCS, #Wildlife, #Water]

 

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National Association of Home Builders v. U.S. EPA

Jun 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1183. On Petition for Review of a Final Rule of the Environmental Protection Agency. The case involves the 2008 rule issued by the U.S. EPA regulating renovation and remodeling activities that create health hazards arising from lead paint. The rule contained an "opt-out" provision, which exempted owner-occupied housing from the rule's requirements if the homeowner certified that no pregnant women or young children lived there. In 2010, EPA amended the rule to eliminate the opt-out provision.

 

    The National Association of Home Builders (NAHB) and other trade associations petitioned for review of the amended rule on two grounds: (1) that the decision to abandon the opt-out provision was arbitrary and capricious, in violation of the Administrative Procedure Act (APA); and (2) that EPA failed to convene a panel of representatives of small businesses before issuing the new rule, in violation of the Regulatory Flexibility Act. The Appeals Court ruled, "Because we conclude that EPA's decision was not arbitrary or capricious, and because we lack jurisdiction to entertain the petitioners' second challenge, we deny the petition for review."

 

    NAHB argued that it was arbitrary and capricious for EPA to change its mind about the opt-out provision. In 2008, they said, EPA "provided a reasoned basis for its approach that was consistent with congressional intent." In contrast, they said, "EPA has provided no justification for its decision to reverse course . . . that is grounded in any information or experience that was not available to the Agency when it included the Opt Out Provision in the original rule."

 

    The Appeals Court said, "This kind of argument is largely foreclosed by FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), in which the Supreme Court declared that there is 'no basis in the Administrative Procedure Act or in our opinions for a

requirement that all agency change be subjected to more searching review.'" The Appeals Court said further, "In light of Fox, we must reject the petitioners' contention that, 'because the Rule eliminates a provision that was consistent with congressional intent, the Court should not defer to EPA in making such a decision.' The fact that the original opt-out provision was consistent with congressional intent is irrelevant as long as the amended rule is also 'permissible under the statute.'" The Appeals Court also ruled that EPA satisfied the core requirement that Fox makes clear that an agency must meet when changing course: it must "provide reasoned explanation for its action," which "would ordinarily demand that it display awareness that it is changing position."

 

    On the second issue, the Appeals Court indicates that the small business advocacy review panel requirement "is a purely procedural device, a process by which interested parties can present their views to the agency. . . And courts may not, under the guise of the APA's arbitrary-and-capricious review standard, impose procedural requirements that the APA's procedural provisions. . .do not themselves impose."

 

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

 

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Patton Boggs, LLP v. Chevron Corporation

Jun 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-7082 & 11-7089. Appeals from the United States District Court for the District of Columbia. The Appeals Court explains this case is but a small part of a long-running and now sprawling international litigation battle in which various indigenous Ecuadorian groups claim that Chevron Corporation is liable for environmental harm caused in the Amazon over three decades. Patton Boggs LLP represents the plaintiffs and would like to continue to do so. The Appeals Court said, "The district court denied Patton Boggs both a declaratory judgment that it could not be disqualified from that representation and leave to amend its complaint with claims that Chevron and its counsel, Gibson, Dunn & Crutcher LLP, tortiously interfered with the firm's contract with its clients. . . we affirm the district court."

 

    The Appeals Court said further, "The complaint does not allege the requisite 'plausible scenario' that could show Patton Boggs is entitled to relief. Jones, 634 F.3d at 595. We agree with the district court that the allegation is nothing but 'an unadorned, the-defendant-unlawfully-harmed-me accusation.' Chevron II, 825 F. Supp. 2d at 42 (quoting Iqbal, 556 U.S. at 678). . ."

 

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

 

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Southern Union Co. v. United States

Jun 21: In the U.S. Supreme Court, Case No. 11-94. Appealed from the U.S. Court of Appeals, First Circuit [See WIMS 1/4/11]. Justices Sotomayor, Roberts, Scalia, Thomas, Ginsburg and Kagan were in the majority. Justice Breyer filed a dissenting opinion in which Kennedy and Alito joined. The case raises the important question of whether a criminal fine must be vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000), where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines.

 

    In summary, the majority says, "The Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant's maximum potential sentence. Apprendi v. New Jersey, 530 U. S. 466 (2000); Blakely v. Washington, 542 U. S. 296 (2004). We have applied this principle in numerous cases where the sentence was imprisonment or death. The question here is whether the same rule applies to sentences of criminal fines. We hold that it does."

 

    In this case, Petitioner Southern Union Company is a natural gas distributor. Its subsidiary stored liquid mercury, a hazardous substance, at a facility in Pawtucket, Rhode Island. In September 2004, youths from a nearby apartment complex broke into the facility, played with the mercury, and spread it around the facility and complex. The complex's residents were temporarily displaced during the cleanup and most underwent testing for mercury poisoning.

 

    Violations of the RCRA are punishable by, inter alia, "a fine of not more than $50,000 for each day of violation." §6928(d). At sentencing, the probation office set a maximum fine of $38.1 million, on the basis that Southern Union violated the RCRA for each of the 762 days from September 19, 2002, through October 19, 2004. Southern Union objected that this calculation violated Apprendi because the jury was not asked to determine the precise duration of the violation. The company noted that the verdict form listed only the violation's approximate start date (i.e., "on or about"), and argued that the court's instructions permitted conviction if the jury found even a 1-day violation. Therefore, Southern Union maintained, the only violation the jury necessarily found was for one day, and imposing any fine greater than the single-day penalty of $50,000 would require fact-finding by the court, in contravention of Apprendi.

 

    The Government acknowledged the jury was not asked to specify the duration of the violation, but argued that Apprendi does not apply to criminal fines. The District Court disagreed and held that Apprendi applies. But the court concluded from the "content and context of the verdict all together" that the jury found a 762-day violation.

    The court therefore set a maximum potential fine of $38.1 million, from which it imposed a fine of $6 million and a "community service obligatio[n]" of $12 million. On appeal, the United States Court of Appeals for the First Circuit rejected the District Court's conclusion that the jury necessarily found a violation of 762 days. But the Court of Appeals affirmed the sentence because it also held, again in contrast to the District Court, that Apprendi does not apply to criminal fines. Other Circuits have reached the opposite conclusion. The majority Supreme Court said, "We granted certiorari to resolve the conflict. . . and now reverse. . . We hold that the rule of Apprendi applies to the imposition of criminal fines. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."

    The High Court explains, "Under Apprendi, '[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' 530 U. S., at 490. The 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.' Blakely, 542 U. S., at 303 (emphasis deleted). Thus, while judges may exercise discretion in sentencing, they may not 'inflict[to] punishment that the jury's verdict alone does not allow.'"

    The dissenting opinion indicates, "Where a criminal fine is at issue, I believe the Sixth Amendment permits a sentencing judge to determine sentencing facts -- facts that are not elements of the crime but are relevant only to the amount of the fine the judge will impose. Those who framed the Bill of Rights understood that 'the finding of a particular fact' of this kind was ordinarily a matter for a judge and not necessarily 'within "the domain of the jury."' Oregon v. Ice, 555 U. S. 160, 168 (2009) (quoting Harris v. United States, 536 U. S. 545, 557 (2002) (plurality opinion)). The Court's contrary conclusion, I believe, is a historical and will lead to increased problems of unfairness in the administration of our criminal justice system."

    Access the complete opinion and dissent (click here). Access the Supreme Court docket (click here). Access the oral argument transcript (click here). Access the briefs filed in the case (click here). [#Haz, #Remed, #SupCt]

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

Jun 21: 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 [See WIMS 2/10/12]. The Appeals Court explains that Intervenor-Defendant-Appellee Arizona Snowbowl Resort Limited Partnership (Snowbowl) has moved for attorney's

fees and costs. The court is well aware that Plaintiffs-Appellants and Howard M. Shanker (Shanker), their counsel, "grossly abused the judicial process in prosecuting this second case. However, a majority of the panel has concluded that an award of attorney fees would be inequitable because Plaintiffs-Appellants appear to have been misled by their counsel concerning the issues that remained part of the appeal, and Shanker was acting in a pro bono capacity. Nevertheless, the panel unanimously concludes that some sanction against Shanker personally is appropriate."

 

    The Appeals Court indicates, ". . .we find that Shanker's conduct merits sanctions against him personally. As detailed in Save the Peaks Coalition v. U.S. Forest Service, 669 F.3d 1025 (9th Cir. 2012), Shanker grossly abused the judicial process in bringing this case solely 'to ensure further delay and forestall development' at Snowbowl. Save the Peaks Coal., 669 F.3d at 1028. Shanker acted with subjective bad faith. He engaged in tactics with the intent of increasing expenses and delaying development at Snowbowl, unreasonably multiplying proceedings after losing in Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc). His intent was to harass Snowbowl. Therefore, we conclude that Shanker is subject to sanctions under § 1927. See B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1107 (9th Cir. 2002); New Alaska Dev. Corp., 869 F.2d at 1306."

 

    The Appeals Court says, "As an appropriate remedy, we hold Shanker 'personally liable for excessive costs for unreasonably multiplying proceedings.' Gadda, 377 F.3d at 943 n.4. Because this entire case was designed to harass Snowbowl, we conclude that Snowbowl is entitled to an award of all costs other than attorney's fees that it incurred in litigating Save the Peaks Coalition v. U.S. Forest Service before both the district court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-17896.) We hereby award these costs to Snowbowl against Shanker personally. The case is hereby referred to the Appellate Commissioner to determine the monetary amount of costs to award in Snowbowl's favor against Shanker. Therefore, the court awards costs in litigating Save the Peaks Coalition v. U.S. Forest Service before both the district court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-17896) to Snowbowl, to be paid entirely by Shanker, counsel for Plaintiffs-Appellants. Thus, Snowbowl's Motion for Attorneys' Fees is denied, and its accompanying motion for costs is granted, as modified by this order."

 

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

 

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Pacific Rivers Counsel v. US Forest Service

Jun 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17565. Appeal from the United States District Court for the Eastern District of California. The Appeals Court indicates that, "This court's opinion filed on February 3, 2012, and reported at 668 F.3d 609 (9th Cir. 2012) [See WIMS 2/6/12], is withdrawn, and is replaced by the attached Opinion and Dissent. . . The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. . . The petition for rehearing and the petition for rehearing en banc, filed on April 18, 2012, are denied."

 

    According to the Appeals Court, Plaintiff-Appellant Pacific Rivers Council (Pacific Rivers) brought suit in Federal district court challenging the 2004 Framework for the Sierra Nevada Mountains (the Sierras) as inconsistent with the National Environmental

Protection Act (NEPA) and the Administrative Procedure Act (APA). The Appeals Court said, "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 Appeals Court rules, "Pacific Rivers timely appealed the grant of summary judgment. For the reasons that follow, 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."

 

    In a lengthy dissenting opinion, one Justice concludes, ". . .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. . . 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, #Water, #Wildlife, #CA9]

 

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U.S. v. California State Lands Commission

Jun 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-56568. Appealed from the United States District Court for the Southern District of California. The California State Lands Commission (the Lands Commission) appeals the district court's final judgment in this eminent domain case, wherein the United States took a fee simple interest in about 32.42 acres of land (the Property) on behalf of the Navy, which has continuously leased this parcel since 1949. In condemning the Property, the United States sought to extinguish California's public trust rights. The Lands Commission contends that California's public trust rights cannot be extinguished by the United States' power of eminent domain.

 

    The Appeals Court notes that the Lands Commission does not dispute the United States' power to take and use the land without trust restrictions. Instead, it asks the Appeals Court to hold that California's public trust rights become "quiescent" while the United States owns the land but will "re-emerge" if the United States seeks to transfer the Property to a private party.

 

    The district court held that the United States' condemnation extinguished California's public trust on the entire parcel, and that the 27.54 acres which are filled can be conveyed to a private party free of any trust, but that the 4.88 acres that remained tidelands at the time of the taking are now subject to a Federal public trust and may not be conveyed to a private party.

 

    The Appeals Court said, "The issue before us is whether the United States can extinguish California's public trust rights when exercising its federal power of eminent domain. We hold that it can, and affirm the judgment of the district court." The Appeals Court explains further, "Having paid just compensation, the United States is entitled to the interest it sought in its complaint in condemnation: full fee simple, free of California's public trust. We have concluded that neither the equal-footing doctrine nor the public trust doctrine prevents the federal government from taking that interest in the land unencumbered."

 

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

 

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