Tuesday, January 3, 2012

D.C. Appeals Court Stays Cross-State Air Pollution Rule

Dec 30: In one of the last official judicial environmental actions of 2011, the United States Court of Appeals for the D.C. Circuit issued a ruling to stay U.S. EPA's controversial Cross-State Air Pollution Rule (CSAPR) finalized on July 6, 2011, and published in the Federal Register on August 8, 2011 [See WIMS 7/7/11]. According to the 2-page Court order issued on December 30, the CSAPR, which just became effective on October 7, 2011, is now on hold pending judicial review until at least April 2012.

    On October 6, EPA signed a proposed rule, seeking comment on significant revisions to the final CSAPR [See WIMS 10/7/11]. In a separate, but related, regulatory action, EPA finalized a supplemental rulemaking on December 15, 2011 to require five states -- Iowa, Michigan, Missouri, Oklahoma, and Wisconsin -- to make summertime NOx reductions under the CSAPR ozone season control program. CSAPR requires a total of 28 Eastern states to reduce annual SO2 emissions, annual NOx emissions and/or ozone season NOx emissions to assist in attaining the 1997 ozone and fine particle and 2006 fine particle National Ambient Air Quality Standards (NAAQS). CSAPR replaced EPA's 2005 Clean Air Interstate Rule (CAIR). A December 2008 court decision kept the requirements of CAIR in place temporarily but directed EPA to issue a new rule to implement Clean Air Act requirements concerning the transport of air pollution across state boundaries.

    The case, EME Homer City Generation, L.P. v. EPA with the American Lung Association, et al. as Intervenors, Case No. 11-1302 is consolidated with 44 other petitions. Among other items, the Court order indicates, ". . .the motions to stay be granted. The Environmental Protection Agency's 'Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals; Final Rule,' 76 Fed. Reg. 48,208 (August 8, 2011), is stayed pending the court's resolution of these petitions for review. Petitioners have satisfied the standards required for a stay pending court review. . . Respondent is expected to continue administering the Clean Air Interstate Rule pending the court's resolution of these petitions for review."
    The Appeals Court ordered further, "that the parties submit by January 17, 2012, proposed formats and schedules for the briefing of these cases that would allow the cases to be heard by April 2012. The parties are strongly urged to submit a joint proposal and are reminded that the court looks with extreme disfavor on repetitious submissions and will, where appropriate, require a joint brief of aligned parties with total words not to exceed the standard allotment for a single brief. The parties are directed to provide detailed justifications for any request to file separate briefs or to exceed in the aggregate the standard word allotment. Requests to exceed the standard word allotment must specify the word allotment necessary for each issue."
    Access the Appeals Court order (click here). Access EPA's CSAPR website for complete background and details (click here). [#Air, #CADC]

State Of New York v. Solvent Chemical Co., Inc.

Dec 19: In the U.S. Court of Appeals, Second Circuit, Case Nos. 10-2026, 10-2166, 10-2383. The Appeals Court summarizes saying, "Plaintiff sought contribution under the Comprehensive Environmental Response and Compensation Act (CERCLA) for both past and future costs of cleaning up industrial pollution. The U.S. District Court for the Western District of New York awarded contribution for past cleanup costs but declined to issue a declaratory judgment as to future contribution. The Appeals Court reversed the denial of a declaratory judgment and indicated that numerous other issues raised on appeal are decided in a summary order issued simultaneously with the opinion.
    Plaintiff Solvent Chemical Company, Inc. (Solvent) sued two adjoining property owners, E.I. du Pont de Nemours & Co. (DuPont) and Olin Corporation (Olin), seeking contribution for costs that Solvent had incurred and continues to incur cleaning up hazardous waste pursuant to a consent decree with the State of New York. The district court declined to declare liability chiefly because the allocation of future costs would be premature.
    The Appeals Court indicates that, "The reasons given by the district court might justify a refusal to allocate cleanup responsibility; none of them, however, supports a refusal to grant a declaratory judgment as to liability itself. . . none of the factors identified by the court distinguishes between past and future cleanup. . . These factors require a district court to issue a declaratory judgment in this case. A declaratory judgment would 'serve a useful purpose' here for at least two reasons.
    "First, there is a short statute of limitations for a CERCLA contribution claim. . . Second, the 'costs and time involved in relitigating issues as complex as these where new costs are incurred would be massive and wasteful' . . . A declaratory judgment
with respect to liability saves litigants and courts substantial time and money, leaving for the future only the need to fix the amount of contribution and affording the court flexibility with respect to the time and manner for doing so. . .Accordingly, we conclude that: the judgment would 'serve a useful purpose in . . . settling the legal issues involved'. . ."
    Access the complete opinion (click here). [#Remed, #CA2]

National Association of Home Builders v. US Army Corps

Dec 16: In the U.S. Court of Appeals D.C. Circuit, Case No. 10-5169. Appealed from the United States District Court for the District of Columbia. According to the Appeals Court, "Invoking its authority under § 404(e) of the Clean Water Act (CWA), 33 U.S.C. § 1344(e), the U.S. Army Corps of Engineers issued a generic nationwide permit (NWP 46) allowing persons to secure approval for qualifying discharges into 'waters of the United States' without going through the more laborious process of securing an individual permit."
    The National Association of Home Builders (NAHB) appealed the district court's dismissal of its challenge to the Corps's authority to issue the permit. Although the district court held that the NAHB had standing to pursue its claim, it ultimately granted summary judgment for the Corps on the merits, finding that the terms of the permit survived the NAHB's legal challenges. The Appeals Court, however said, "Because we find that the NAHB lacked standing to bring its suit, we vacate and remand with instructions to dismiss the case."
    The Appeals Court states further, "A membership organization such as the NAHB can assert standing on behalf of its members only if 'at least one' of these members would have standing on their own. Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002) (citing Hunt v. Wash. State Apple Advertising Comm'n, 432 U.S. 333, 342-43 (1977)). Although it is undisputed that the NAHB qualifies to advance the claims of its members, we find that it has failed to show that any member had standing."
    Access the complete opinion (click here). [#Water, #CADC]

Northern Plains Resources v. The Surface Transportation Bd.

Dec 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 97-70037, 97-70099, and 97-70217. On Petition for Review of Orders of the Surface Transportation Board, Department of Transportation.
    The Appeals Court indicates that the case arises out of three applications by the Tongue River Railroad Company, Inc. (TRRC) to build a 130-mile railroad line in Southeastern Montana to haul coal. The Surface Transportation Board (Board), or its predecessor, the Interstate Commerce Commission (ICC), approved each of the three applications (individually, TRRC I, II, and III). Northern Plains Resource Council, Inc. (NPRC), Mark Fix, the City of Forsyth, Native Action, Inc. (Native Action), and United Transportation Union-General Committee of Adjustment (UTU-GCA) (collectively, Petitioners) challenge TRRC II and III. Petitioners challenge the approval of TRRC II and III on a number of environmental and public convenience and necessity grounds.
    The Appeals Court said, "We hold that the Board failed to take the requisite 'hard look' at certain material environmental impacts inherent in TRRC II and III in the manner required by the National Environmental Policy Act (NEPA) prior to approving those applications. We further hold that the Board did not err in its public convenience and necessity analyses, except with respect to its reliance on the viability of TRRC II during the approval of TRRC III. Accordingly, we reverse and remand in part, and affirm in part."
    The Appeals Court indicates that, "Petitioners contend that the Board's cumulative impact analysis in TRRC III ignores the combined impacts of future coal bed methane (CBM) well development and coal mining projects that will also come into being in Southeastern Montana. Petitioners further contend that the Board failed to account for the combined effects of the referenced projects and the likely effects on air quality, wildlife, and water quality of the proposed construction and operation of the TRRC railroad. We agree with Petitioners' contentions concerning the cumulative foreseeable effects of CBM wells and the Otter Creek Coal Mine. . . we hold that the Board arbitrarily and capriciously relied on the five-year time frame, which resulted in a faulty analysis of the possible cumulative impacts from reasonably foreseeable CBM projects that could overlap construction of the railroad line." On other issues the Appeals Court ruled in favor of the Board.
    Access the complete opinion (click here). [#Transport, #Land, #CA9]

New Jersey v. EPA

Dec 20: the U.S. Court of Appeals D.C. Circuit, Case No. 05-1097, consolidated with 40 other actions. The Appeals Court explains that this is a motion for fees and costs under section 307(f) of the Clean Air Act, which authorizes courts to -- award costs of litigation (including reasonable attorney and expert witness fees) whenever they determine that such award is appropriate. In the underlying litigation, movants, a group of Native American tribes and tribal associations, intervened on behalf of petitioners who were challenging EPA rules regulating mercury emissions from power plants. See New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008). The Tribes also filed a petition for review challenging an ancillary regulation not at issue here. The Appeals Court vacated the mercury rules because it agreed with petitioners that the rules violated the Clean Air Act. Id. Petitioners sought fees, and EPA agreed to pay.
    The Appeals Court indicates, "Tribal Intervenors, who also pressed for vacatur, albeit on the basis of different arguments that we never reached, now ask us to order EPA to pay their fees and costs. EPA objects, claiming that Tribal Intervenors are ineligible for fee shifting. EPA also argues that even were Tribal Intervenors eligible, the size of their fee request is unreasonable and should be reduced by more than two-thirds. . . we conclude that Tribal Intervenors merit a fee award. We decline, however, to weigh in now on the appropriate amount; instead, we direct the parties to our Appellate Mediation Program."
    Access the complete opinion (click here). [#Air, #CADC]