Friends Of The Everglades v. U.S. EPA

Oct 26: In the U.S. Court of Appeals, Eleventh Circuit, Case Nos. 08-13652, 08-13653, 08-13657, 08-14921, & 08-16283. Petitions for Review of a Decision of U.S. EPA. The case involves determining whether the Appeals Court has original subject matter jurisdiction over several petitions for review of an administrative rule that exempts transfers of waters of the United States from the requirements for a permit under the Clean Water Act, 33 U.S.C. § 1251 et seq., or whether the Appeals Court may avoid deciding that question and instead exercise hypothetical jurisdiction to decide the merits of the petitions. Friends of the Everglades, several other environmental organizations, nine states (NY, CT, DE, IL, ME, MI, MN, MO, WA), the province of Manitoba, Canada, and the Miccosukee Tribe argue that original jurisdiction belongs in a district court, but they filed protective petitions for review of the water-transfer rule in this and another circuit [Second Circuit] after the Administrator of the Environmental Protection Agency stated her position that the initial judicial review of the rule could be had only in the circuit courts of appeals.

 

    The Judicial Panel on Multidistrict Litigation consolidated the petitions in this Court. The South Florida Water Management District and the United States Sugar Corporation intervened to defend the rule along side the Administrator. United States Sugar urges the Appeals Court to exercise hypothetical jurisdiction and deny the petitions. But the Appeals Court held that, "under the plain language of the governing statute, id. §1369(b)(1), we lack original subject matter jurisdiction to review the petitions and we may not exercise hypothetical jurisdiction over them. We dismiss the petitions."

 

    Explaining further, the Appeals Court said, "The Administrator argues that we should read section 1369(b)(1)(F) to apply to any 'regulations relating to permitting itself,' but this interpretation is contrary to the statutory text and was persuasively rejected in Northwest Environmental Advocates. The Ninth Circuit held that it did not have jurisdiction under section 1369(b)(1)(F) to review a regulation creating new exemptions from the permit program. Nw. Envtl. Advocates. 537 F.3d at 1018. The Ninth Circuit explained that a new exemption will never produce a permit decision to be reviewed under section 1369(b)(1)(F) before the court of appeals is able to review the underlying regulation, so there is no reason to read the section as providing original subject matter jurisdiction to review the exemption. Id Although the Sixth Circuit later adopted the interpretation advanced by the Administrator, Nat'l Cotton Council of Am. v. EPA. 553 F.3d 927, 933 (6th Cir. 2009), it did so in an opinion that provided no analysis of the provision and that cited two decisions of the Ninth Circuit that the Ninth Circuit had distinguished in Northwest Environmental Advocates, see id. We lack original jurisdiction to review a permanent exemption from the permit program."

 

    Regarding the hypothetical jurisdiction issue, the Appeals Court said, "We cannot exercise hypothetical jurisdiction any more than we can issue a hypothetical judgment. 'Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.' Kokkonen v. Guardian Life Ins. Co. of Am.. 511 U.S. 375,377,114 S. Ct. 1673, 1675 (1994) (internal citations omitted). Because we conclude that section 1369(b)(1) does not grant original subject matter jurisdiction over these petitions, we may not address the merits of this controversy."

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

 

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Center For Biological Diversity v. U.S. BLM

Oct 22: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 10-72356, 10-72552, 10-72762, 10-72768, & 10-72775. On Petition for Review of Orders of the Bureau of Land Management and the Fish and Wildlife Service.

 

    The Appeals Court explains that the case concerns a decision by the Bureau of Land Management (BLM) to authorize the Ruby Pipeline Project (Project). The Project involves the construction, operation, and maintenance of a 42-inch-diameter natural gas pipeline extending from Wyoming to Oregon, over 678 miles. The right-of-way for the pipeline encompasses approximately 2,291 acres of Federal lands and crosses 209 rivers and streams that support Federally endangered and threatened fish species. According to a Biological Opinion (the Biological Opinion or the Opinion) formulated by the Fish and Wildlife Service (FWS), the project 'would adversely affect' nine of those species and five designated critical habitats. The FWS nonetheless concluded that the project 'would not jeopardize these species or adversely modify their critical habitat.' The propriety of the FWS's 'no jeopardy' conclusion, and the BLM's reliance on that conclusion in issuing its Record of Decision, are at the heart of this case."

 

    The opinion addresses those challenges to the Project that petitioners Center for Biological Diversity, Defenders of Wildlife et al., and Summit Lake Paiute Tribe have raised under the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq. Specifically, the Appeals Court resolves petitioners' claims that the Biological Opinion and its accompanying Incidental Take Statement were arbitrary and capricious because: (1) the Biological Opinion's "no jeopardy" and "no adverse modification" determinations relied on protective measures set forth in a conservation plan not enforceable under the ESA; (2) the Biological Opinion did not take into account the potential impacts of withdrawing 337.8 million gallons of groundwater from sixty-four wells along the pipeline; (3) the Incidental Take Statement miscalculated the number of fish to be killed, by using a "dry-ditch construction method" for water crossings; and (4) the Incidental Take Statement placed no limit on the number of "eggs and fry" of threatened Lahontan cutthroat trout to be taken during construction.

 

    The Appeals Court concludes, "We agree with the first two contentions and so set aside the Biological Opinion as arbitrary and capricious. We also set aside the Record of Decision, as it relied on the invalid Biological Opinion." Further, the Appeals Court rules, ". . .we vacate the FWS's Biological Opinion and remand for the agency to formulate a revised Biological Opinion that: (1) addresses the impacts, if any, of Ruby's groundwater withdrawals on listed fish species and critical habitat; and (2) categorizes and treats the Conservation Action Plan measures as 'interrelated actions' or excludes any reliance on their beneficial effects in making a revised jeopardy and adverse modification. We otherwise deny the petition as to the issues discussed in this opinion. We also vacate and remand the BLM's Record of Decision."

 

    Amy Atwood, senior attorney at the Center for Biological Diversity (CBD) said, "We wish the Ruby pipeline had never been built, but since it was, it's crucial that everything possible is done to minimize harm to the endangered fish that live along its route. With this victory, these rare fish will be better protected, and the public won't have to bear the whole cost of the pipeline's destructive impacts."

 

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

 

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

Oct 12: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60934. Petitions for Review of Orders of the Environmental Protection Agency. In this high-profile case that was decided by the Fifth Circuit on July 30, 2012 [See WIMS 8/1/12], the Appeals Court has ordered that the opinion previously filed in this case is withdrawn and a new opinion is substituted.

 

    The Appeals Court explains, "Two sets of petitioners, hereinafter referred to as 'Industry Petitioners' and 'Environmental Petitioners,' seek review of the United States Environmental Protection Agency's (EPA) final rule partially approving and

partially disapproving the most recent revision to Texas's State Implementation Plan (SIP) submitted by the Texas Commission on Environmental Quality (TCEQ) pursuant to the Clean Air Act (CAA or the Act), 42 U.S.C. § 7401 et seq. Because we find that the EPA did not act arbitrarily or capriciously, or contrary to law, or in excess of its statutory authority, in its partial approval and

partial disapproval of Texas's SIP revision, we deny both petitions for review."

 

    The substituted opinion appears to reach the same conclusion, "we conclude that the EPA did not act arbitrarily or capriciously, contrary to law, or in excess of its statutory authority, in its partial approval and partial disapproval of Texas's SIP revision. We therefore deny the petitions for review submitted by both Environmental Petitioners and Industry Petitioners."

 

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

 

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Alcoa, Inc. v. Bonneville Power Administration

Oct 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-70211, 10-70707, 10-70743, 10-70782, 10-70813, & 10-70843. On Petition for Review of an Order of the Bonneville Power Administration. The consolidated petitions for review challenge a contract between the Bonneville Power Administration (BPA) and one of its long-time customers, Alcoa Inc. BPA's preference customers, as well as other entities and organizations in the Pacific Northwest, filed the petition for review, requesting that the Appeals Court hold that the contract is unlawful because it is inconsistent with the agency's statutory mandate to act in accordance with sound business principles.

 

    The Petitioners claim that instead of entering into a contract to sell power to Alcoa at the statutorily required Industrial Firm power (IP) rate (a costbased rate prescribed by 16 U.S.C. § 839e(c)(1) for sales of power to customers such as Alcoa), BPA should sell to other buyers at the market rate. BPA's decision not to do so, petitioners allege, forgoes revenue that could otherwise be used to lower the rates charged to its preference customers. They further argue that BPA relied on flawed data in determining it would make a modest profit by selling surplus power to Alcoa.

 

    Alcoa also petitions for review, asking the court to hold that the Equivalent Benefits standard is contrary to BPA's governing statutes, Alcoa makes the request because such a judicial determination is a condition precedent for the commencement of a five-year period (the Second Period of the Alcoa Contract) during which time BPA would continue to sell power to Alcoa at the contracted rate. In May 2012, the Alcoa Contract was amended to remove all references to the Second Period.

 

    In a partially split decision, the majority Appeals Court said, "We dismiss the petitioners' and Alcoa's challenge in part as moot, and otherwise reject their claims." Additionally, one Justice wrote a separate and concurring opinion. In conclusion, the majority said, "The petitioners' challenges to the Alcoa Contract ask us to second-guess BPA's policy judgment regarding the costs and benefits of its sale of electric power. But the belief that another approach might have been wiser is not a valid basis for jettisoning an agency action as arbitrary and capricious. We therefore deny the petitions for review insofar as they pertain to the Initial Period. Because the potential for BPA and Alcoa to enter into the Second Period of the contract is no longer before us, we dismiss those portions of the petitions. Finally, we hold that because BPA relied on a categorical exclusion to NEPA's requirements, declining to complete an EIS was not arbitrary and capricious. Accordingly, we deny petitioners' NEPA claim. Dismissed in part and denied in part."

 

    Access the complete opinion, dissent and concurring opinions (click here). [#Energy, #CA9]

 

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League To Save Lake Tahoe v. Tahoe Regional Planning Agency

Oct 12: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17318. Appealed from the United States District Court for the District of Nevada. In this unpublished opinion, the League to Save Lake Tahoe (the League) appealed from the district court's summary judgment upholding the regulatory approvals issued by the Tahoe Regional Planning Agency (TRPA or the agency) for the Sierra Colina Village housing project. The Appeals Court determined that it had jurisdiction and vacated the district court judgment.

 

    The Appeals Court said, "Contrary to TRPA's assertion, the League has standing to sue on its members' behalf." The Appeals Court ruled, "Because substantial evidence does not support two mandatory TRPA findings, we must vacate the district court judgment. We, however, recognize that the League's challenges as described on appeal are much more detailed than the

objections made before TRPA in the first instance, and that TRPA must be afforded the opportunity to reexamine the objections and enter new findings. We remand to the district court with instructions to vacate TRPA's approval of the land coverage transfer for LPF 3 [linear public facility, i.e. shared public access roadway] and remand the matter back to the agency for further proceedings consistent with this disposition. We need not, and do not, reach any other issue urged by the parties."

 

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

 

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Supreme Court Denies Hearing Solutia Inc. v. McWane, Inc. Appeal

Oct 9: The U.S. Supreme Court refused to hear an appeal by Solutia Inc. in the case decided by the Eleventh Circuit in March of this year [See WIMS 3/7/12]. In the Appeals Court case Plaintiffs-Appellants Solutia, Inc. and Pharmacia Corporation (Solutia & Pharmacia) appealed the District Court's grant of summary judgment against their claims under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

 

    The appeal was a matter of first impression involving 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.

 

    Access the SupCt Order (click here, page 3). Access the SupCt docket  (click here). Access the complete 11th circuit opinion (click here). [#Remed, #CA11, #SupCt]

 

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Western Watershed Projects v. Ellis (DOI/BLM)

Oct 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35464. Appealed from the United States District Court for the District of Idaho. The Appeals Court explains that this appeal involves an attorneys' fee dispute that added a "rancorous coda" to long-running grazing permit litigation in Idaho that was "all ably overseen by the district court."

 

    The plaintiff, Western Watersheds Project (WWP), originally filed the action in 2004 challenging the Bureau of Land Management's (BLM) renewal of grazing permits in the Jarbidge Resource Area (JRA), covering a large expanse of Southern Idaho. In 2005, the district court ruled in a published opinion that WWP's challenge had merit and that the BLM had violated Federal statutes by inadequately protecting habitat of threatened, endangered, or sensitive species.

 

    The parties in 2006 entered into what they thought was a settlement of the entire dispute, but in July of 2007 a massive fire changed the situation dramatically. The BLM then allowed grazing on unburned areas to continue, and after taking several months to regroup, began issuing new grazing authorizations. WWP successfully challenged the post-fire grazing decisions and authorizations as inadequately protecting wildlife habitat, but the district court denied WWP's claim for fees, and this appeal followed. The issue before the Appeals Court is whether the district court erred in denying plaintiff WWP fees under the Equal Access to Justice Act (EAJA).

 

    WWP's position is that the district court considered only the reasonableness of the underlying agency decision to issue

grazing authorizations after the fire, and did not adequately consider the reasonableness of the litigation strategy defending

that decision. The Appeals Court said, "Our review of the record convinces us that the district court did consider both factors, and we affirm" the district court ruling.

 

    The Appeals Court explained further, "The district court's explanation addressed WWP's principal argument that the BLM was attempting to defend an interpretation of the RMP that the district court had rejected in its 2005 opinion. In the district court, WWP's attack on both the underlying agency decision and its litigation strategy had the same focus. WWP's argument did not separate the litigation strategy from the grazing decision. We therefore cannot fault the district court for not parsing WWP's argument in the way that WWP asks us to do in this appeal."

 

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

 

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Supreme Court Denies Montana Sulphur & Chemical CAA Appeal

Oct 1: The U.S. Supreme Court denied to hear an appeal by Petitioner Montana Sulphur and Chemical Company, against U.S. EPA (Docket No. 11-1403), under the Clean Air Act with respect to Montana air quality from 1993 to 2008. The denial upholds the Ninth Circuit ruling that, "Because we conclude that the agency did not act arbitrarily or capriciously with respect to either the SIP or FIP, we deny both petitions for review." The Justices said further, ". . . we conclude the EPA did not act arbitrarily or capriciously or abuse its discretion by making the SIP Call, disapproving portions of the revised SIP, or promulgating the requirements set forth in the FIP. We therefore deny the petition for review in both 02-71657 and 08-72642." [See WIMS 1/23/12].

 

    Montana Sulphur had challenged EPA's April 2008 final rule promulgating a Federal Implementation Plan (FIP) for the State of Montana's SO2 emissions. The FIP is designed to fill perceived gaps the EPA identified in the State Implementation Plan (SIP). The later appeal focuses on the EPA's authority to promulgate the FIP and the reasonableness of certain specific requirements set forth therein. Additionally, Montana Sulphur had challenged EPA's reliance on various modeling calculations -- into the administrative record for partial disapproval of the SIP.

 

    The Ninth Circuit said, "The EPA's continued use of the ISC model was not arbitrary or capricious. The model was properly employed at both the time of the state SIP and the proposed FIP. The FIP did not replace the entire SIP, but only the limited portions the EPA had disapproved; because use of a different model could have yielded results that did not comport with the remainder of the SIP, it was not arbitrary or capricious for the EPA to continue with the existing model despite some later technological improvements."

 

    Access the Supreme Court docket (click here). Access the Supreme Court denial order (click here, p.14). Access the Ninth Circuit opinion  (click here). [#Air, #CA9 #SupCt]

 

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Supreme Court Denies Hearing On USDA's "Roadless Rule"

Oct 1: U.S. Supreme Court denied a request by the State of Wyoming to review the legality of the so-called "Roadless Rule," environmental groups say protects approximately 46 million acres of pristine National Forest lands. Wyoming lost its challenge to the rule before the Denver-based Tenth Circuit Court of Appeals in October 2011 [See WIMS 10/24/11, WIMS 2/22/12].

 

    Earthjustice attorney Kristen Boyles who has worked to defend the Roadless Rule issued a statement saying, "For a decade, Earthjustice has opposed Wyoming's efforts to derail the popular Roadless Rule, which protects some of America's best National Forest lands. With the Supreme Court's denial of Wyoming's petition for review, there should no longer be any question about the Roadless Rule's legality.

 

    "The ten-plus years of our legal campaign to defend the Roadless Rule have seen many twists and turns in the legal process, but one thing hasn't changed -- the undeveloped forest lands at issue remain some of the most environmentally important public lands in our country. They produce clean water and clean air, offer a last refuge to imperiled wildlife across a warming, changing landscape, and provide world-class recreation opportunities for campers, hunters, hikers, fishermen, and bird watchers. Americans love these lands, and it has been an honor to represent those American values before the courts for the last decade."

 

    Jane Danowitz, of the Pew Environment Group said, "Today's Supreme Court action validates one of America's most important and popular land conservation policies. Without the national standard of protection the rule provides, millions of acres of America's last pristine national forests could be lost to logging and other industrial development." Pew indicated that the rule was issued to protect nearly 60 million acres, or roughly one-third of undeveloped Forest Service lands. It was the result of the largest public lands review in U.S. history, with more than 1.2 million comments and 600 public hearings. Pew also points out that according to a recent U.S. Department of Agriculture report, national forests and grasslands sustain 223,000 jobs in rural areas. National forests are also the source of drinking water for about 124 million Americans in 900 U.S. cities.

 

    The Supreme Court order simply indicates that in two cases -- 11-1378 Wyoming v. USDA, and 11-1384 Colorado Mining Association v. USDA -- "The petitions for writs of certiorari are denied. Justice Alito and Justice Kagan took no part in the consideration or decision of these petitions."   

 

    Access a release from Earthjustice (click here). Access the Supreme Court order (click here, p. 71). Access a release from the Pew Environment Group (click here). Access USDA's Roadless Rule website for more information (click here). Access the complete 10th Circuit opinion (click here). [#MILand, #CA10]

 

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