Monday, June 25, 2012

Defenders Of Wildlife v. Bureau Of Ocean Energy Management

Jun 22: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 11-12598 & 11-12599. Petitions for Review of a Decision of the Department of the Interior. The case concerns a challenge to an exploratory drilling plan under the Outer Continental Shelf Lands Act (OCSLA). 43 U.S.C. § 1331 et seq. The Bureau of Ocean Energy Management (BOEM) approved the Shell Exploration Plan S-7444 (Shell EP) to conduct drilling in the Gulf of Mexico. The Shell EP covers ten exploratory wells on offshore Alabama leases in the Central Gulf of Mexico between 7,100 and 7,300 feet deep.
    The case is a consolidated appeal in which Petitioners, Defenders of Wildlife, et al. and Gulf Restoration Network, et al. (Petitioners), filed comments on the Shell EP, participated in the administrative proceeding, and filed the petition for review. The only issues on petition for review are whether the Shell EP violates the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), 16 U.S.C. § 1536 et seq. The Appeals Court ruled, "After reviewing the record, reading the parties' briefs, and having the benefit of oral argument, we deny the petition for review."
    The Appeals Court said, "Petitioners insist, BOEM's decision not to prepare an EIS and its subsequent FONSI is a violation of NEPA. Yet, Petitioners simply cannot overcome our extremely deferential 'arbitrary or capricious' standard of review." Among other items, Petitioners argue that BOEM failed to include a site-specific analysis of potential catastrophic spills and underestimated the likelihood of a spill. However, the Appeals Court indicates, "To the contrary, the EA extensively analyzes the risks and consequences of such an event. Appendix B of the EA, 'Catastrophic Spill Event Analysis,' evaluates the impact of a low-probability catastrophic spill. After taking into account regulations put into effect after the Deepwater Horizon disaster, BOEM determined that the risk of another spill was low. While this analysis is derived from a generalized scenario, it is based on the only two large spill disasters in the Gulf of Mexico -- the 1979 Ixtoc blowout in the Bay of Campeche Mexico and the 2010 Deepwater Horizon disaster. An oil spill is an unexpected event, and its parameters cannot be precisely known in advance. Thus, it is appropriate for BOEM to summarize potential impacts resulting from a hypothetical oil spill."
    Further the Petitioners argued that BOEM's failed to evaluate the worst case discharge spill of 405,000 barrels of oil per day, but the appeals Court ruled, ". . .BOEM is not required to base its NEPA analysis on a worst case scenario. . . NEPA does not require a 'worst case discharge' analysis. Thus, we conclude that BOEM's reliance on analysis based on a lower spill rate, which it determined to be more likely than the worst case discharge, was not arbitrary or capricious or in violation of NEPA."
    Additionally, Petitioners' final complaint with BOEM's site-specific analysis is that the EA fails to discuss some endangered species present in the Gulf, including the piping plover, Gulf sturgeon, and various species of beach mice. The Appeals Court said, "Petitioners suggest that every EA requires a detailed analysis of each species that could possibly be affected by a potential oil spill. NEPA clearly does not require such analysis. An EA is intended to be a document that '[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].' 40 C.F.R. § 1508.9(a)(1). Although the EA does not describe every possible environmental effect of an oil spill, BOEM took a hard look at environmental impacts, and its site-specific analysis of expected drilling operations is consistent with NEPA."
    Access the complete opinion (click here). [#Energy/OCS, #Wildlife, #Water]
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National Association of Home Builders v. U.S. EPA

Jun 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1183. On Petition for Review of a Final Rule of the Environmental Protection Agency. The case involves the 2008 rule issued by the U.S. EPA regulating renovation and remodeling activities that create health hazards arising from lead paint. The rule contained an "opt-out" provision, which exempted owner-occupied housing from the rule's requirements if the homeowner certified that no pregnant women or young children lived there. In 2010, EPA amended the rule to eliminate the opt-out provision.
    The National Association of Home Builders (NAHB) and other trade associations petitioned for review of the amended rule on two grounds: (1) that the decision to abandon the opt-out provision was arbitrary and capricious, in violation of the Administrative Procedure Act (APA); and (2) that EPA failed to convene a panel of representatives of small businesses before issuing the new rule, in violation of the Regulatory Flexibility Act. The Appeals Court ruled, "Because we conclude that EPA's decision was not arbitrary or capricious, and because we lack jurisdiction to entertain the petitioners' second challenge, we deny the petition for review."
    NAHB argued that it was arbitrary and capricious for EPA to change its mind about the opt-out provision. In 2008, they said, EPA "provided a reasoned basis for its approach that was consistent with congressional intent." In contrast, they said, "EPA has provided no justification for its decision to reverse course . . . that is grounded in any information or experience that was not available to the Agency when it included the Opt Out Provision in the original rule."
    The Appeals Court said, "This kind of argument is largely foreclosed by FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), in which the Supreme Court declared that there is 'no basis in the Administrative Procedure Act or in our opinions for a
requirement that all agency change be subjected to more searching review.'" The Appeals Court said further, "In light of Fox, we must reject the petitioners' contention that, 'because the Rule eliminates a provision that was consistent with congressional intent, the Court should not defer to EPA in making such a decision.' The fact that the original opt-out provision was consistent with congressional intent is irrelevant as long as the amended rule is also 'permissible under the statute.'" The Appeals Court also ruled that EPA satisfied the core requirement that Fox makes clear that an agency must meet when changing course: it must "provide reasoned explanation for its action," which "would ordinarily demand that it display awareness that it is changing position."
    On the second issue, the Appeals Court indicates that the small business advocacy review panel requirement "is a purely procedural device, a process by which interested parties can present their views to the agency. . . And courts may not, under the guise of the APA's arbitrary-and-capricious review standard, impose procedural requirements that the APA's procedural provisions. . .do not themselves impose."
    Access the complete opinion (click here). [#Toxics, #CADC]
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Patton Boggs, LLP v. Chevron Corporation

Jun 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-7082 & 11-7089. Appeals from the United States District Court for the District of Columbia. The Appeals Court explains this case is but a small part of a long-running and now sprawling international litigation battle in which various indigenous Ecuadorian groups claim that Chevron Corporation is liable for environmental harm caused in the Amazon over three decades. Patton Boggs LLP represents the plaintiffs and would like to continue to do so. The Appeals Court said, "The district court denied Patton Boggs both a declaratory judgment that it could not be disqualified from that representation and leave to amend its complaint with claims that Chevron and its counsel, Gibson, Dunn & Crutcher LLP, tortiously interfered with the firm's contract with its clients. . . we affirm the district court."
    The Appeals Court said further, "The complaint does not allege the requisite 'plausible scenario' that could show Patton Boggs is entitled to relief. Jones, 634 F.3d at 595. We agree with the district court that the allegation is nothing but 'an unadorned, the-defendant-unlawfully-harmed-me accusation.' Chevron II, 825 F. Supp. 2d at 42 (quoting Iqbal, 556 U.S. at 678). . ."
    Access the complete opinion (click here). [#Remed, #Toxics, #CADC]
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