Supreme Court Will Wear Oral Arguments In Stormwater Case

Nov 30: On December 4, the U.S. Supreme Court will hear oral arguments in the case of Los Angeles County Flood Control District, Petitioner v. Natural Resources Defense Council, Inc., et al. (SupCt. docket 11-460). The high profile case with 22 amicus briefs, deals with the issue of pollutants stemming from municipal stormwater systems.

 

    The questions presented in the case include: (1.) Do "navigable waters of the United States" include only "naturally occurring" bodies of water so that construction of engineered channels or other man-made improvements to a river as part of municipal flood and storm control renders the improved portion no longer a "navigable water" under the Clean Water Act?

 

    (2.) When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a "discharge" from an "outfall" under the Clean Water Act, notwithstanding this Court's holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), that transfer of water within a single body of water cannot constitute a "discharge" for purposes of the Act?

     In March 2011, the U.S. Court of Appeals, Ninth Circuit (Case No. 10-56017) ruled partially in favor of NRDC, et al [See WIMS 3/11/11] and overturned a district court's grant of summary judgment in favor of two municipal entities and Los Angeles County. In that case Plaintiffs contended that Defendants County of Los Angeles (County) and Los Angeles County Flood Control District (District) were discharging polluted urban stormwater runoff collected by municipal separate storm sewer systems (ms4) into navigable waters in Southern California. The levels of pollutants detected in four rivers exceed the limits allowed in a National Pollutant Discharge Elimination System (NPDES) permit which governs municipal stormwater discharges in the County. Defendants contended that there was no evidence establishing their responsibility for, or discharge of, stormwater carrying pollutants to the rivers.

 

    However, the Appeals Court also ruled, "Plaintiffs, however, failed to meet their evidentiary burden with respect to discharges by the District into the Santa Clara River and Malibu Creek [the other two water bodies]. Plaintiffs did not provide evidence sufficient for the district court to determine if stormwater discharged from an ms4 controlled by the District caused or contributed to pollution exceedances located in these two rivers. Similarly, Plaintiffs did not delineate how stormwater from ms4s controlled by the County caused or contributed to exceedances in any of the Watershed Rivers. Accordingly, we affirm the district court's grant of summary judgment in favor of the Defendants on these claims."

 

    In a blog posting from NRDC, the group says, "In the case we'll argue Tuesday, we are asking Los Angeles County to stop shirking its responsibility and start doing right by the residents of Southern California -- and the region's millions of annual visitors. In resisting our efforts, the flood control district is dramatically overstating the cost of adopting green infrastructure and reducing water pollution in the region. By doing the right thing, Los Angeles County officials, like many of their counterparts around the country, would learn that embracing green infrastructure is not only good for public health and smart environmental policy; it will actually save money, increase water supplies, reduce flood risks and clean up local beaches and rivers."

 

    Access the SupCt docket for the case (click here). Access links to all of the merit and amicus briefs in the case (click here). Access the complete opinion of the Ninth Circuit (click here). Access the blog posting from NRDC with links to related information (click here). [#Water, #SupCt]

 

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Hillsdale Environmental Loss v. U.S. Army Corps

Nov 28: In the U.S. Court of Alppeals, Tenth Circuit, Case No. 11-3210. Appealed from the U.S. District Court for the District of Kansas. The case concerns the construction of a new Burlington Northern Santa Fe (BNSF) rail/truck terminal outside Kansas City, Kansas. Because the preferred site contained streams and wetlands protected under Federal law, several groups (collectively, Hillsdale) brought challenges to a dredge and fill permit issued by the United States Army Corps of Engineers (Corps) under the Clean Water Act and the National Environmental Policy Act.

 

    The district court denied Hillsdale's motion for an injunction and granted summary judgment for the Corps and BNSF. On appeal, Hillsdale requested the Appeals Court to set aside the Corps's decision to grant the permit saying "the Corps inadequately considered alternatives to the selected site under the Clean Water Act and violated the National Environmental Policy Act by preparing an inadequate environmental assessment and failing to prepare a full environmental impact statement." The Appeals Court concluded "the Corps's decision is supported by the record, and was not an arbitrary and capricious exercise of its approval powers under federal law. . . we affirm the decision of the district court and uphold the Corps's issuance of a § 404 permit."

 

    Further explaining its decision, the Appeals Court said, "Hillsdale is correct that many of the comments they cite are more than mere statements of opposition; they question various aspects of the Corps's analysis, mostly its failure to analyze the cancer risks of DPM emissions but also the intermodal facility's impacts on water quality, regional air quality, and so on. But all comments Hillsdale identifies raise the same issues it raised in this appeal. As we have discussed, the Corps took the requisite 'hard look' at every one of these issues, which is all NEPA requires. . . Hillsdale cannot overcome its failure on the merits simply by pointing to

comments expressing the same concerns. If Hillsdale cannot show there is some merit to opposing opinions, they cannot demonstrate controversy. . . An additional point in the Corps's favor is that none of the federal or state agencies the Corps consulted opposed the project or the Corps's analysis. Although not dispositive, this is additional evidence of a lack of controversy. . . In short, neither the nature nor the number of the comments Hillsdale cites demonstrates the intermodal facility is controversial, let alone that the Corps's decision not to prepare an EIS was arbitrary and capricious in light of this controversy."

 

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

 

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Alaska Survival v. Surface Transportation Board

Nov 28: In the U.S. Court of Apppeals, Ninth Circuit, Case No. 12-70218. On Petition for Review of an Order of the U.S. Surface Transportation Board (STB). The Appeals Court issued an order stating, ". . . the petition for review of the STB's order is denied. An opinion on the merits of denial of the petition for review will follow in due course." Lifting the stay will allow the Alaska Railroad's extension project to Port MacKenzie in the Matanuska-Susitna Borough.

 

    In this case the Appeals Court said in part, "After further review of the record, we have concluded that the STB's 'purpose and need' statement complied with NEPA and that Petitioners no longer raise 'serious questions' on this point. Moreover, the balance of hardships no longer tips sharply in the Petitioners' favor. Further delay of this project will prevent the award of construction contracts, postpone the hiring of construction employees, and significantly increase costs. . . Because this project is funded largely with taxpayer dollars, these increased costs of construction, which the Respondents-Intervenors in moving to lift the stay estimated at $10–12 million, will burden the public upon continued delay. By contrast, the weight to be given Petitioners' assertions of hardship because of environmental harm is weakened by this court's decision to deny the petition for review, which will allow the project to move forward. Because we have concluded that the agency acted in accord with law and that its decision is not arbitrary and capricious, it is for the STB and not for our court to balance the justifications of planned economic progress in improved rail service against the possibilities of environmental harm from building and operating the rail line."

 

    A release from the Matanuska-Susitna Borough indicates that in November 2011, the Federal Surface Transportation Board approved the plan to build a new 32-mile rail line, connecting Port MacKenzie  to the Railroad's main line near Houston. On January 20, the Sierra Club, Cook Inletkeeper, and Alaska Survival filed a legal challenge to the Board's decision. Borough Mayor Larry DeVilbiss said he was delighted to hear the court's ruling. He said the Port MacKenzie Rail project will be a good return on investment for the state. He said, "This will diversify our Alaska economy. One of the things that's always struck me about this project, we're looking at a maximum of $300 million that is invested, but when you look at the payback, per year, on a 50-year study on this, the state will be getting back $300 million a year on the assets that will be moving down this track, so it's a no brainer."

 

    Access the complete order from the Appeals Court (click here). Access the release from the Borough (click here). [#Transport, #CA9]

 

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Lovgren v. Locke

Nov 28: In the U.S. Court of Appeals, First Circuit, Case No. 11-1952. Appealed from the District of Massachusetts, Boston. This case involves legal challenges to recent Federal management actions taken in New England's sensitive Multispecies Groundfish Fishery. In brief summary the Appeals Court says, "We reject the many  challenges and affirm entry of summary judgment for the federal defendants."

 

    The Appeals Court explains further that under the Magnuson-Stevens Fishery Conservation and Management Act the New England Fishery Management Council (N.E. Council) regulates fishery resources within the Federal waters off New England's coast. It does so primarily through Fishery Management Plans (FMPs), which it reevaluates biennially in light of the latest scientific information and congressionally imposed mandates and deadlines to prevent overfishing. Those mandates and deadlines were recently altered by the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, which introduced a suite of stringent protections for depleted fisheries.

 

    The litigation centers on the N.E. Council's adjustments to the FMP governing the Northeast Multispecies Groundfish Fishery (Fishery). The N.E. Council was required by law to implement changes to the Fishery's 2004 FMP by the 2010 fishing year, taking into account both the Reauthorization Act's new protections and the results of a study conducted in 2008 on the health of the Fishery's stocks of fish. The study results showed that the situation was worse than previously believed. A number of groundfish stocks were overfished and subject to overfishing; only two stocks had improved since the 2004 FMP's implementation. This trend has continued to the present.

 

    The N.E. Council adopted a new proposed groundfish FMP, Amendment 16, after 3 years' work, which included several publications in the Federal Register, eight public hearings, and receipt of numerous comments. The Federal environmental impact

statement prepared for Amendment 16 acknowledged the severe economic hardships facing New England's fishing communities.

 

    On January 21, 2010, Amendment 16 was upheld on administrative review by the National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration (NOAA) within the U.S. Department of Commerce. The NMFS promulgated Amendment 16 through three related sets of regulations that, inter alia, altered and expanded the Fishery's preexisting "sector allocation program" and established new restrictions on fishing activities to end and prevent overfishing. The regulations took effect on May 1, 2010.

 

    Plaintiffs then filed suit in Federal court alleging that Amendment 16 conflicts with the Reauthorization Act's provisions governing "limited access privilege programs," with the ten "national standards" applicable to all FMPs and with the requirements of the National Environmental Policy Act. They unsuccessfully sought to enjoin implementation of Amendment 16. The district court granted summary judgment for defendants as to all claims. The Appeals Court affirmed.

 

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

 

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Hornbeck Offshore Services, et al v. Kenneth Salazar (Interior Dept.)

Nov 27: In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-30936. The case arises from the 2010 Deepwater Horizon accident in the Gulf of Mexico. The explosion killed 11 workers, caused the drilling platform to sink, and resulted in a major uncontrolled release of oil. At Presidential direction, those

events prompted the Department of the Interior to prohibit all new and existing oil and gas drilling operations on the Outer Continental Shelf for six months.

 

    The district court preliminarily enjoined enforcement of the moratorium. The single issue on appeal is whether Interior's subsequent actions violated a specific provision of the court's injunction, justifying a finding of civil contempt. The district court was certainly correct that Interior immediately took steps to avoid the effect of the injunction, but in a split decision, the majority Appeals Court concluded that "none of those actions violated the court's order" and reversed the decision. The majority further ruled:

"Interior was carrying out a policy decision made by the President. On display throughout was the 'decision, activity . . . and dispatch' that the Framers envisioned for the Executive Department of government. THE FEDERALIST NO. 70, at 423 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Litigation was not able to keep pace with these developments. See id. (discussing the Executive's unique role 'in the most critical emergencies of the state'). The national importance of this case weakens, not strengthens, the propriety of the court's contempt finding. The controversial policy decisions that the May and July Directives reflected were made at the highest level of government. In implementing those decisions, we do not discern a violation of a clear provision of the district court's order by the words expressed or actions taken by the Secretary.

 

"The district court dealt expeditiously and forcefully with extremely significant litigation. The potential APA violations that led to the initial injunction are not at issue today, but such violations, if significant, would justify a district court's consideration of an injunction. Our decision is a narrow one. We conclude that there is no clear and convincing evidence that Interior's actions after the injunction violated the clear terms of the injunction as drafted. Therefore, there was no civil contempt."

    The dissenting Justice said in a lengthy dissent, "Because I would hold that the district court did not abuse its discretion in holding Interior in contempt, I respectfully dissent. While the majority views Interior's acts in isolation, the totality of the circumstances supports the able district court's decision."

 

    And, concluded, "As the majority opinion states, the 'controversial policy decisions' at issue here were 'made at the highest levels of government.' But that does not insulate those decisions from judicial review. The district court determined that the Interior's actions amounted to a 'determined disregard' of its preliminary injunction order. The court's power to enforce its orders must remain intact, even in the midst of the most critical emergencies of the state. Simply put, the Judiciary may be the least dangerous branch, but it is not entirely toothless."

 

    Access the complete opinion and dissent (click here). [#Energy/OCS, #Energy/OilSpill, #CA5]

 

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Decker v. NEDC Set For Oral Arguments

Nov 26: The National Alliance of Forest Owners (NAFO) reports that all briefs are filed at the U.S. Supreme Court for the forest roads case Decker v. Northwest Environmental Defense Center (NEDC). Oral arguments are scheduled for December 3, 2012 and a decision is expected next spring. The three questions at hand are:

• Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)?
• Did the U.S. EPA exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits?
• Does the CWA allow NEDC to file this case in a Federal district court 30 years after the Silvicultural Rule became final?

    NAFO indicates that fifteen briefs support the positions of the state and industry petitioners; eight support NEDC. Thirty-one state attorneys general, associations of governors, state foresters, counties, state governments, state legislators, local governments, affected counties in the Northwest plus the Federal government all supported the petitioners. No states or other government representatives supported NEDC.

    One group of law professors supported the petitioners on a specific legal point regarding deference to EPA's administrative and statutory interpretations. Two groups of law professors supported NEDC -- one arguing that deference is not appropriate in this case and the other arguing the case was properly filed under the CWA. The brief on deference argues that other courts have questioned the validity of the Silvicultural Rule and that while legislation to add the Rule to the CWA has been introduced in the past, Congress did not do so. This brief conveniently ignores that several courts have upheld the Silvicultural Rule and that congressional support for the legislation forced EPA to withdraw its proposed repeal of the Rule thus making the CWA amendment unnecessary.

    Thirty-eight forestry professors, two forestry schools, the leading U.S. professional forestry associations, and retired U.S. Forest Service employees supported the petitioners. Fifteen former EPA and state regulators supported NEDC. A number of forestry associations supported the petitioners (including NAFO), plus several agricultural and business groups and a wildlife conservation group. Several local northwest environmental and fishery groups plus a few national groups supported NEDC.

    NAFO said that competent legal arguments were raised on both sides. Some of the briefs, however, raised technical arguments. For example, the former EPA employees argue that forestry-related sediment is a leading source of water quality impairment to rivers and streams nationwide. However, NAFO said the impaired waters data on EPA's website show otherwise. Forestry ranks far down the list of impairment causes, with only a small percentage of the overall stream segments lists under CWA section 303(d) by the states as impaired.

    Some briefs argue that NPDES permitting for logging roads is feasible, flexible, and not unduly burdensome as it will focus on an easily identified subset of forest roads and will employ a general permit, referencing the Multi-Sector Stormwater General Permit as an example. These briefs do not attempt to define what constitutes a forest road, let alone explain how EPA would define a subset deserving of regulation. As for the Multi-Sector Stormwater General Permit, this provides a variety of approaches to a number of industrial sectors focused on relatively identifiable facility sites, with complex paperwork and monitoring requirements, some of which must be conducted immediately after a rain event. Hardly flexible and easily costly.

    Finally, some briefs detailed the water quality and aquatic ecosystem problems caused by sediment from forest road runoff. Sediment is precisely why state-administered Best Management Practices (BMPs) exist. NAFO indicates that what is in dispute is whether NPDES permits are the best way to control runoff and thus improve water quality. Not one brief cited any study or report showing that permits are a better control system than BMPs. One brief detailed several federal court decisions finding procedural flaws with the use of BMPs in various water programs in Oregon. The brief filed by professional and academic foresters, however, cited study after study showing the effectiveness of BMPs and the high compliance rates even in states where BMPs are not mandatory.

    Access a release from NAFO (click here). Access the Supreme Court docket (click here). Access links to all of the Merit and Amicus briefs (click here). Access the complete Ninth Circuit opinion (click here). [#Water, #Land, #SupCt, #CA9]

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