Wednesday, July 18, 2012

American Petroleum Institute v. U.S. EPA

Jul 17: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 10-1079 & 10-1080. On Petitions for Review of Final Action of the U.S. EPA. The Appeals Court explains, that In 2010, U.S. EPA promulgated a final rule adopting a new, one-hour primary national ambient air quality standard (NAAQS) for nitrogen dioxide. The American Petroleum Institute, the Utility Air Regulatory Group, and the Interstate Natural Gas Association of America (collectively the API) petition for review of that rule, claiming EPA, in adopting the NAAQS, was arbitrary and capricious and violated the Clean Air Act. API also challenges a statement in the preamble to the final rule regarding EPA's intended implementation of the NAAQS. The Appeals Court ruled, "We deny the petitions insofar as they challenge the EPA's adoption of the NAAQS, but because the EPA's statement in the preamble was not final, we lack jurisdiction to consider those portions of the petitions."
    The Appeals Court recounts that, in 2009 the EPA proposed to set a new hourly NAAQS with allowable maximum concentration levels between 80 and 100 ppb. 74 Fed. Reg. 34,404 (July 15, 2009). The petitioners each submitted comments criticizing the EPA for proposing a revision to the NAAQS based upon an unpublished study. . . and for discounting a published and peer-reviewed study that did not conclude exposures to NO2 at 100 ppb caused a measureable adverse health effect. They also expressed skepticism about the EPA's interpretation of the epidemiological evidence, questioned the assumptions built into the forecasts in the REA, and pointed out the proposed rule provided no guidance as to how a permit applicant for a new or modified source of NO2 pollution should demonstrate compliance with the new NAAQS.
    In its Final Rule, the EPA adopted a new one-hour primary NAAQS, requiring in effect that "the three-year average of the annual 98th percentile of the daily maximum 1-hour average concentration [be] less than or equal to 100 ppb." The EPA concluded this standard was needed "to provide protection for asthmatics and other at-risk populations against an array of adverse respiratory health effects related to short-term NO2 exposure."
    According to the API, the EPA was arbitrary and capricious in how it dealt with the record evidence and the NAAQS it adopted is unlawful because more stringent than "requisite to protect the public health" with "an adequate margin of safety." In addition, the API argued that EPA's implementation of the NAAQS was arbitrary and capricious because, when the EPA stated a permit applicant for a new or modified source of pollution must demonstrate compliance with the new NAAQS, the agency did not consider whether it would be able to resolve applications within the statutorily required time period or what effect such a requirement might have upon economic growth.
    The Appeals Court ruled in part, "Considering its duty to err on the side of caution, we conclude the EPA did not act unreasonably by comparing the benefits of the one-hour standard against not only a scenario based upon existing air quality but also upon an alternate scenario in which areas just meet the annual NAAQS set in 1971. For that reason, and because the record adequately supports the EPA's conclusion that material negative health effects result from ambient air concentrations as low as the 100 ppb level, we cannot conclude the agency was arbitrary and capricious or violated the Act in adopting that level as the new one-hour NAAQS for NO2."
    Earthjustice, intervened on behalf of Natural Resources Defense Council to oppose the industry challenge. Earthjustice attorney Abigail Dillen issued a brief statement saying, "Nitrogen dioxide pollution triggers asthma attacks and sends people to hospitals and emergency rooms. This decision is great news for children, older adults, and millions of Americans with asthma whose health is endangered by this pollution."
    Access the complete opinion (click here). Access a release and statement from Earthjustice (click here). [#Air, #CADC]
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Natural Resources Defense Council v. Salazar

Jul 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17661. Appealed from the United States District Court for the Eastern District of California. In this split decision involving the renewal of forty-one water supply contracts by the United States Department of Interior, Bureau of Reclamation the majority affirms the district court in determining that the contracts do not violate § 7(a)(2) of the Endangered Species Act and illegally threatens the existence of the delta smelt.
    The delta smelt is a small fish endemic to the San Joaquin and Sacramento Rivers Delta Estuary which was declared endangered by the United States Fish and Wildlife Service under the Endangered Species Act in 1993. Though previously
abundant, the population of the delta smelt has diminished markedly in the last several decades.
    Plaintiffs, Natural Resources Defense Council (NRDC) and several conservation groups, argue that in 2005 the United States Bureau of Reclamation (Bureau) renewed forty-one water service contracts with various water users without conducting an adequate consultation under § 7(a)(2) of the Endangered Species Act and that the contracts jeopardize the existence of the delta smelt. The contracts at issue fall into two groups: (1) users who obtain water from the Delta-Mendota Canal (DMC Contractors); and (2) parties who claim to hold water rights senior to those held by the Bureau with regard to the Central Valley Project (CVP) and who previously entered into settlement contracts with the Bureau (Settlement Contractors).
    Plaintiffs argue that the district court erred in holding that they did not have standing to challenge the DMC contracts. The majority Appeals Court determined, "Even under a substantive claim analysis for standing, which imposes a higher burden than a procedural analysis, plaintiffs' claim fails because they cannot show causation. . . Thus, the district court properly determined that plaintiffs lack standing to challenge the DMC contracts under both a procedural and a substantive claim analysis."
    Additionally, the majority ruled, ". . .the Bureau's discretion is limited with regard to the Settlement Contracts so that § 7(a)(2) of the ESA is not triggered. The Bureau's hands are tied historically by those asserting senior water rights in the CVP. The Bureau was required to acknowledge such rights in order to operate the CVP, which it did by entering the Settlement Contracts. We agree with the district court . . ."
    The dissenting justice said, "I respectfully dissent. I agree with the majority that this case is not moot. I disagree with the majority's holdings that the plaintiffs lack standing to challenge the Bureau's renewal of the Delta-Mendota Canal (DMC) contracts and that § 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2), does not apply to the United States Bureau of Reclamation's (Bureau) renewals of the Sacramento River Settlement ("SRS") contracts. Accordingly, I would reverse the district court's grant of summary judgment to the defendants and remand for further proceedings."
    Access the complete opinion and dissent (click here). [#Wildlife, #Water, #CA9]
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