Tuesday, June 19, 2012

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak

Jun 18: In the U.S. Supreme Court, Case Nos. 11–246 and 11–247. Appealed from the D.C. Circuit Court of Appeals. This 8-1 decision addresses a provision of the Indian Reorganization Act (IRA), 25 U. S. C. §465, that authorizes the Secretary of the Interior (Secretary) to acquire property "for the purpose of providing land for Indians." Ch. 576, §5, 48 Stat. 985. The Secretary here acquired land in trust for an Indian tribe seeking to open a casino. Respondent David Patchak lives near that land and challenges the Secretary's decision in a suit brought under the Administrative Procedure Act (APA), 5 U. S. C. §701 et seq. Patchak claims that the Secretary lacked authority under §465 to take title to the land, and alleges economic, environmental, and aesthetic harms from the casino's operation.
    In brief summary, the Supreme Court ruled, "We consider two questions arising from Patchak's action. The first is whether the United States has sovereign immunity from the suit by virtue of the Quiet Title Act(QTA), 86 Stat. 1176. We think it does not. The second is whether Patchak has prudential standing to challenge the Secretary's acquisition. We think he does. We therefore hold that Patchak's suit may proceed."
    The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Band) is an Indian tribe residing in rural Michigan. Although the Band has a long history, the Department of the Interior (DOI) formally recognized it only in 1999. See 63 Fed. Reg. 56936 (1998). Two years later,the Band petitioned the Secretary to exercise authority under §465 by taking into trust a tract of land in Wayland Township, Michigan, known as the Bradley Property. The Band's application explained that the Band would use the property "for gaming purposes," with the goal of generating the "revenue necessary to promote tribal economic development, self-sufficiency and a strong tribal government capable of providing its members with sorely needed social and educational programs."
    Access the complete opinion and dissent (click here). Access the docket for the case (click here). Access the briefs in the case (click here). Access the oral arguments transcript for the case (click here). [#Land, #MILand, #SupmCt]
32 Years of Environmental Reporting for serious Environmental Professionals

Mack Trucks, Inc. & Volvo Group v. U.S. EPA

Jun 12: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 12-1077, 12-1078, 12-1099. On Petitions for Review of a Final Rule of the United States Environmental Protection Agency. The Appeals Court explains that in January 2012, U.S. EPA promulgated an interim final rule (IFR) to permit manufacturers of heavy-duty diesel engines to pay nonconformance penalties (NCPs) in exchange for the right to sell noncompliant engines. EPA took the action without providing formal notice or an opportunity for comment, invoking the "good cause" exception provided in the Administrative Procedure Act (APA). The Appeals Court ruled, "Because we find that none of the statutory criteria for 'good cause' are satisfied, we vacate the IFR."
    In 2001, pursuant to Section 202 of the Clean Air Act, EPA enacted a rule requiring a 95 percent reduction in the emissions of nitrogen oxide from heavy-duty diesel engines.By delaying the effective date until 2010, EPA gave industry nine years to innovate the necessary new technologies. Most manufacturers of heavy-duty diesel engines, including Petitioners Mack and Volvo, invested hundreds of millions of dollars to develop a technology called "selective catalytic reduction" which meets the requirements. One manufacturer, Navistar, took a different approach and pursued a technology of "exhaust gas recirculation," which proved less successful and does not meet the requirement.
    In an effort to allow Navistar to continue selling its engines, without formal notice and comment, hurriedly promulgated the IFR on January 31, 2012, pursuant to its authority under 42 U.S.C. § 7525(g), to make NCPs available to Navistar. Petitioners each requested administrative stays of the IFR, protesting that EPA lacked good cause within the meaning of the APA. Petitioners also objected to the substance of the NCP, arguing that EPA misapplied its own regulatory criteria for determining when such a penalty is warranted. Navistar intervened on behalf of EPA, and claimed that Petitioners lacked standing to challenge the IFR.
    In summing up the case, the Appeals Court offered two observations: (1) "NCPs are meant to be a temporary bridge to compliance for manufacturers that have 'made every effort to comply.' United States v. Caterpillar, Inc., 227 F. Supp. 2d 73, 88 (D.D.C. 2002). As EPA itself has explained, NCPs are not designed to bail out manufacturers that voluntarily choose, for whatever reason, not to adopt an existing, compliant technology. . . Based solely on what EPA has offered in the IFR, it at least appears to us that NCPs are likely inappropriate in this case." (2) "As it is presented in the IFR, we are highly skeptical that the penalty and upper limit provided for in this NCP satisfy this congressional demand to protect compliant manufacturers."
    Following its observations, the Appeals Court concludes, "That being said, EPA is certainly free to make whatever findings it deems appropriate in the pending final rulemaking -- subject, of course, to this Court's review. For now, therefore, we simply hold that EPA lacked good cause for not providing formal notice-and-comment rulemaking, and accordingly vacate the IFR and remand for further proceedings."
    Access the complete opinion (click here). [#Air, #CADC]
32 Years of Environmental Reporting for serious Environmental Professionals

Chevron Corporation v. Weinberg Group

Jun 12: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-7097. Appeal from the United States District Court for the District of Columbia. The case involves subpoenaed documents by Chevron from the Washington, DC-based Weinberg Group, a scientific consulting firm working for Ecuadorian citizens in their case against Chevron for environmental damage there.
    The Weinberg Group asserted the attorney-client and work product privileges over some of the documents responsive to the subpoena. In the D.C. district court, Chevron moved to compel production of those documents. Chevron contended that the documents fell within the crime-fraud exception to the attorney-client and work product privileges. The D.C. district court found that the crime-fraud exception applied and granted Chevron's motion to compel.
    However, the Appeals Court explains that the D.C. district court relied almost entirely on a decision in favor of Chevron by the New York district court in the underlying fraud litigation. See Chevron Corp. v. Donziger, 768 F. Supp. 2d 581 (S.D.N.Y. 2011). While the Weinberg Group's appeal to this court was pending, however, the Second Circuit reversed the decision of the New York
district court. See Chevron Corp. v. Naranjo, 667 F.3d 232, 247 (2d Cir. 2012). The D.C. Appeals Court said, "Given that the D.C. district court relied on the decision of the New York district court and that the New York district court's decision was subsequently reversed by the Second Circuit, we must vacate the D.C. district court's decision and remand."
    Access the complete opinion (click here). [#All, #CADC]
32 Years of Environmental Reporting for serious Environmental Professionals

Coalition, Et. Al v. FERC

Jun 12: In the U.S. Court of Appeals, Second Circuit, Case No. 12-566. In this Petition for review of two orders of the United States Federal Energy Regulatory Commission (FERC), the Appeal Court ruled by Summary Order which does not have precedential effect. The Coalition includes environmental organizations including Sierra Club represented by Earthjustice a public interest law firm.
    The Appeals Court denied the Petition which sought to review a Certificate Order authorizing Central NY Oil to build and operate the MARC I Hub Line Project natural gas pipeline -- 39 miles long and 30 inches in diameter -- to run through Bradford, Sullivan, and Lycoming Counties, Pennsylvania, and to build and operate related facilities. In this case, in considering Central NY Oil's application, FERC prepared an EA, issued a FONSI [finding of no significant impact], and concluded that an EIS was not required.
    The Appeals Court said, "We conclude, based on our review of the administrative record, that FERC took a 'hard look' at the possible effects of the Project and that its decision that an EIS was not required was not arbitrary or capricious. Its 296-page EA thoroughly considered the issues. The Certificate Order carefully reviewed the concerns raised by the comments. The Rehearing Order addressed petitioners' concerns and further explained FERC's basis for issuing the FONSI."
    The Coalition argued that FERC's cumulative impact analysis was inadequate. However, the Appeals Court said further, "We disagree. FERC's analysis of the development of the Marcellus Shale natural gas reserves was sufficient. FERC included a short discussion of Marcellus Shale development in the EA, and FERC reasonably concluded that the impacts of that development are not sufficiently causally-related to the project to warrant a more in-depth analysis. In addition, FERC's discussion of the incremental effects of the project on forests and migratory birds was sufficient. FERC addressed both issues in the EA and has required Central NY Oil to take concrete steps to address environmental concerns raised by petitioners and others."
    Access the complete Summary Order (click here). [#Energy/Pipeline, #Energy/Frack, #CA2]
32 Years of Environmental Reporting for serious Environmental Professionals