Thursday, December 20, 2012

Coalition for Responsible Regulation v. U.S. EPA

Dec 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1322, consolidated with dozens of other cases and involving hundreds of attorneys. On Petitions for Rehearing En Banc. On June 26, 2012, the D.C. Circuit delivered a unanimous decision in support of U.S. EPA and Administration's ability to regulate greenhouse gases (GHG) under the Clean Air Act [See WIMS 6/26/12]. Now, the full Appeals Court has issued an order denying the request for a hearing before the full panel.
    Petitioners, including various states (including Michigan) and industry groups, argued that EPA's rules were based on improper constructions of the CAA and were otherwise arbitrary and capricious. The Appeals Court ruled in June, ". . .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 various parties then petitioned the Appeals Court for the en banc hearing. On consideration, in brief summary, the Appeals Court Order indicates, "The petition of the Chamber of Commerce of the United States of America, joined by the State of Alaska, Peabody Energy Company, Southeastern Legal Foundation, et al., State Petitioners and Intervenors for Petitioners, for rehearing en banc; and the petition of the National Association of Manufacturers, et al. for rehearing en banc in No. 10-1073, et al. and No. 10-1167, et al., and the responses to the petitions were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petitions. Upon consideration of the foregoing, it is ordered that the petitions be denied."
    The majority of Justices concluded, "To be sure, the stakes here are high. The underlying policy questions and the outcome of this case are undoubtedly matters of exceptional importance. The legal issues presented, however, are straightforward, requiring no more than the application of clear statutes and binding Supreme Court precedent. There is no cause for en banc review." Two Justices issued dissenting opinions.
    Vickie Patton, General Counsel of Environmental Defense Fund (EDF) said in a release, "America's clean air laws are clear; EPA has the authority and the responsibility to address the carbon pollution that has profound consequences for our nation's health, safety and prosperity. It is now time for EPA to address the dangerous carbon pollution that comes from power plants by working with the dozens of states that have forged common sense clean energy solutions, as well as the numerous businesses that asked the President to carry out cost-saving energy efficiency solutions in reducing carbon pollution, and the communities across our nation afflicted by the clear and present danger of extreme weather that's linked to climate change."
    The National Association of Manufacturers (NAM) President and CEO Jay Timmons issued a statement on behalf of the industry coalition saying, "While it is unfortunate that the Court denied our rehearing petition of our challenge to these costly EPA regulations, we welcome the fact that two judges wrote careful and well-reasoned dissenting opinions that supported our arguments. These rare dissents send a clear signal that significant legal issues remain to be addressed. These costly and burdensome regulations will eventually force new 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. We will continue to fight against these regulations and are carefully considering seeking Supreme Court review. The debate over how to address climate change should take place in the halls of Congress and should foster economic growth and job creation, not impose additional costs on businesses."  
    Access the complete order, opinion and dissents (click here). Access the release with additional details from EDF (click here). Access the statement from NAM including a listing of coalition members (click here). [#Air, #Climate, #CADC]
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Norman Bernstein v. Patricia Banker

Dec 19: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 11-1501 & 11-1523. Appealed from the United States District Court for the Southern District of Indiana, Indianapolis Division. The Appeals Court explains that this is the latest chapter in the story of the Environmental Chemical and Conservation Company (Enviro-Chem), a defunct Indiana corporation with an expensive environmental legacy. Enviro-Chem conducted waste-handling and disposal operations at three sites north of Zionsville, Indiana, until it closed its doors in the early 1980s, and it left considerable amounts of pollutants behind.
    The plaintiffs in this action are the trustees of a fund created to finance and oversee the cleanup project at one of those three sites. The defendants are the former owners of the site, their corporate entities (including Enviro-Chem), and their insurers, none of whom have paid into the trust despite an alleged obligation to do so. The plaintiffs sued to recover cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Indiana Environmental Legal Actions Statute (ELA), and more.
    The district court dismissed all claims at the summary judgment stage, and the plaintiffs appealed. In response, one of the insurance companies targeted by the plaintiffs filed a conditional cross-appeal, hoping to preserve a favorable outcome even in the event of a reversal of the district court's final judgment. The Appeals Court said, "Addressing both appeals, we reverse in part and affirm in part. The case is remanded for further proceedings on the reinstated claims."
    In conclusion, the Appeals Court rules, ". . .we reverse the district court's dismissal of Counts I, II, III, and VII. In Count I, the Trustees have made a timely CERCLA claim, under 42 U.S.C. § 9607(a)(4)(B), to recover costs incurred pursuant to the 2002 AOC [Administrative Order by Consent]. The Trustees' Count II 'companion claim' for a declaratory judgment of CERCLA liability is therefore also reinstated. We find that the Indiana ELA [Indiana Environmental Legal Actions Statute] claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not moot. The district court committed no abuse of discretion in its handling of the summary judgment briefing process. Finally, we affirm the district court's denial of Auto Owners' motion for summary judgment on preclusion grounds. The trustees' suit is reinstated and remanded for further proceedings consistent with this opinion."
    Access the complete opinion (click here). [#Remed, #CA7]
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Olin Corp. v. Am. Home Assurance Co.

Dec 19: In the U.S. Court of Appeals, Second Circuit, Case No. 11-4055. Appealed from an order of the United States District Court for the Southern District of New York. The district court granted summary judgment to American Home Assurance Company (American Home) on the ground that the attachment point for its excess insurance policies could not be reached by the alleged environmental damage at Olin Corporation's (Olin) site at Morgan Hill, California. In brief, the Appeals Court ruled, "We hold that the plain language of Olin's policies with American Home requires American Home to indemnify Olin for that damage. Accordingly, the judgment of the district court is vacated and the case is remanded for further proceedings."
    In concluding the Appeals Court said, ". . .we conclude that the district court's basis for granting summary judgment was in error. Condition C obligates American Home to indemnify Olin not only for property damage occurring during the policy period, but also for property damage arising from covered occurrences that continues after the policy period. Three decades of perchlorate exposure and the damage it created are treated as a single, multi-year occurrence for the purposes of this policy. And because this single, multi-year occurrence took place in part during each of the two policy periods here, the district court was incorrect to conclude that neither policy would be reached because of the allocation method. On the record before the district court, $72.6 million in damage falls within the coverage of the 1966-69 policy, while $62.7 million falls within the coverage of the 1969-72 policy. These figures exceed the American Home policies' $30.3 million attachment points. On remand, American Home may demonstrate that these attachment points cannot be reached for other reasons. For example, this estimate of the years in which property damage occurred may be inaccurate. Or the evidence may permit the court to assign greater damage to the years before the inception of the two policies. We decide only that issues of material fact remain regarding American Home's liability."
    Access the complete opinion (click here). [#Remed, #CA2]
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Wednesday, December 5, 2012

Arkansas Game and Fish Commission v. U.S.

In the U.S. Supreme Court, Case No. 11-597. Appealed from the U.S. Court of Appeals, Federal Circuit, Case No. 2009-5121 & 2010-5029 [See WIMS 3/31/11]. Justice Ginsburg delivered the opinion of the Court, in which all other Members joined, except Justice Kagan, who took no part in the consideration or decision of the case.

    In the opinion, the Supreme Court indicates that periodically from 1993 until 2000, the U. S. Army Corps of Engineers (Corps) authorized flooding that extended into the peak growing season for timber on forest land owned and managed by petitioner, Arkansas Game and Fish Commission (Commission). Cumulative in effect, the repeated flooding damaged or destroyed more than 18 million board feet of timber and disrupted the ordinary use and enjoyment of the Commission's property. The Commission sought compensation from the United States pursuant to the Fifth Amendment's instruction: "[N]or shall private property be taken for public use, without just compensation." The question presented is whether a taking may occur, within the meaning of the Takings Clause, when government-induced flood invasions, although repetitive, are temporary.

    The Supreme Court said, "Ordinarily, this Court's decisions confirm, if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking. In the instant case, the parties and the courts below divided on the appropriate classification of temporary flooding. Reversing the judgment of the Court of Federal Claims, which awarded compensation to the Commission, the Federal Circuit held, 2 to 1, that compensation may be sought only when flooding is 'a permanent or inevitably recurring condition, rather than an inherently temporary situation.' 637 F. 3d 1366, 1378 (2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability."
    The Supreme Court said further, "We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking."
    Access the complete opinion (click here). Access the Supreme Court docket for this case (click here). Access the oral argument transcript (click here). Access merit and amicus briefs in the case (click here). Access the complete opinion of the Federal Circuit (click here). [#Water, #Land, #SupCt #CAFed]
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Tuesday, December 4, 2012

EPA Preempts Forest Roads Supreme Court Case With Final Rule

Nov 30: On November 30, 2012, U.S. EPA Administrator Lisa Jackson signed a Final Rule revising its Phase I stormwater regulations to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater discharges. The rule has not yet been published in the Federal Register but will become final 30-days following publication.

    EPA indicated that it was "taking this action in response to Northwest Environmental Defense Center v. Brown (9th Circuit), in which the court held that stormwater runoff from certain logging roads is a point source discharge of industrial stormwater that requires an NPDES permit. EPA did not intend for logging roads to be regulated as industrial facilities and has revised its stormwater regulations to clarify the Agency's intent."

    On December 3, the U.S. Supreme Court heard oral argument for the forest roads case Decker v. Northwest Environmental Defense Center (NEDC) [See WIMS 11/26/12], which addresses three questions: (1) Is the Silvicultural Rule defining these roads as nonpoint sources a valid interpretation of the Clean Water Act (CWA)? (2) Did the U.S. EPA exclude logging from the industrial activity category which requires stormwater discharge (NPDES) permits? and, (3) Does the CWA allow NEDC to file this case in a Federal district court 30 years after the Silvicultural Rule became final? EPA's final rule now makes most of the arguments moot. 

    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.

    In the opening of the oral argument, Chief Justice Roberts said the petitioners, ". . .congratulations to your clients -- getting almost all the relief they're looking for under the new rule issued on Friday." However, the petitioners continued to argue, ". . .there is an additional reason why we don't think that the rule here moots -moots the issue. Let -- let's assume that there is a petition for review. I think that's a fairly safe -safe assumption. That some environmental groups argue that the new rule is impermissible because it's at odds with the language of the -- language of the statute, an argument that I think is -- is near frivolous, but that I think will be -- predictably will be made. The rule is prospective. What we have is a judgment from the Ninth Circuit that says that we were in violation for decades by not having permits. And . . ."

    But Chief Justice Roberts seemed to disagree and said, "Well, but it's -- it's an unusual situation for us to rule in a case where the issue has ongoing significance and that's taken away. And what we would be doing is, when there is a new rule, we would be considering quite a lot of difficult issues to determine what the old rule was, so that you can unravel what the Ninth Circuit has upheld. . ."

    Access the complete oral argument transcript (click here). Access a prepublication copy of the EPA final rule (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). Access EPA's Stormwater Discharges From Forest Roads website for complete background and information (click here). [#Water, #Land, #SupCt, #CA9]

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