California Communities Against Toxics v. U.S. EPA

Jul 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-71127. On Petition for Review of a Final Rulemaking of U.S. EPA. According to the Appeals Court, two environmental groups petition for review of a final rulemaking by the EPA. The groups and EPA agree this case should be remanded, so the only dispute is whether vacatur is appropriate.

 

    Under the jurisdiction of the South Coast Air Quality Management District, the District is responsible for developing a plan that ensures new emission increases are offset by reductions. When reductions exceed increases, the excess reductions take

the form of "credits," which are traded in an open market to entities seeking to meet their offset requirements. The District maintains a stock of these credits in an internal bank for distribution to entities like schools and hospitals.

 

    In 2009, California passed Assembly Bill 1318, which requires the District to transfer credits to a soon-to-be completed power plant named Sentinel. Since the Bill changed the state plan, the District sought the EPA's approval. Petitioners challenge the EPA's final rule approving the District's revision. They allege that the EPA committed procedural errors during the rulemaking process and that the substance of the revised state plan violates the Clean Air Act.

 

    The Appeals Court notes that during the rulemaking process, the EPA didn't disclose certain documents in the electronic docket or list them in the docket index. According to the petitioners, those failures violated the notice-and-comment requirements of the Administrative Procedure Act. However, the Appeals Court says, "EPA's failure to include all documents in the electronic docket was not an error. The E-Government Act requires online disclosure only 'to the extent practicable, as determined by the agency in consultation with the Director' of the Office of Management and Budget. E-Government Act of 2002, Pub L. No. 107-347, § 206(d)(2), 116 Stat. 2899, 2916 (2002) (emphasis added). We defer to the EPA on what is practicable to post on its online docket."

 

    The Appeals Court also said, "EPA did misstate that all documents in the docket were listed in the index. While this might violate an interested party's right to meaningfully comment. . . we need not decide that here. Assuming procedural error, it

was harmless as to the petitioners because they had the documents in their possession from earlier proceedings.

 

    On the subject of the validity of the rule, petitioners argue that the EPA violated the Clean Air Act in approving the District's revision to its plan. The EPA concedes that there are flaws in the reasoning adopted for its final rule. Despite its concession, EPA maintains its rule is not arbitrary and capricious and offers new reasoning to support its final rule. The Appeals Court rules, "We therefore find that the EPA's final rule is invalid. That the EPA's final rule is invalid is not the end of the analysis. In considering whether vacatur is warranted, we must balance these errors against the consequences of such a remedy."

 

    The Appeals Court then explains the "Consequences of vacatur" and says, "The delay and trouble vacatur would cause are severe. Sentinel is scheduled to come on line in November, but vacatur would pave the road to legal challenges to Sentinel's construction that could well delay a much needed power plant. Without Sentinel, the region might not have enough power

next summer, resulting in blackouts. Blackouts necessitate the use of diesel generators that pollute the air, the very danger

the Clean Air Act aims to prevent. . .

 

    "Stopping construction would also be economically disastrous. This is a billion-dollar venture employing 350 workers. In addition, vacatur would likely require the California legislature to pass a new bill to allow the District to transfer credits from its internal bank to Sentinel, which would create needless and duplicative legislative effort. Petitioners claim that failure to vacate the EPA's rule will allow Sentinel to continue construction, and that construction will pollute the air. But the California Energy Commission has already found that Sentinel's construction harms are insignificant with mitigation. And that mitigation doesn't implicate the credits at issue.

 

    "While we have only ordered remand without vacatur in limited circumstances, if saving a snail warrants judicial restraint, see Idaho Farm Bureau, 58 F.3d at 1405-06, so does saving the power supply. Accordingly, we remand without vacatur so that construction of Sentinel may proceed without delay. This does not authorize commencement of Sentinel's operation without a new and valid EPA rule in place."

 

    Access the complete opinion (click here). [#Energy, #CA9]

 

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The Estate Of Wayne Hage v. U.S.

Jul 26: In the U.S. Court of Appeals, Federal Circuit, Case Nos. 2011-5001, -5013. Appealed from the United States Court of Federal Claims. The Appeals Court explains that E. Wayne Hage and Jean Hage brought an action against the United States, seeking compensation for a Fifth Amendment taking of private property, breach of contract, and range improvements pursuant to 43 U.S.C. § 1752(g). The Court of Federal Claims (Claims Court) awarded compensation for the taking of water rights plus interest from the date of the taking. The Claims Court also awarded compensation for range improvements, but did not award any corresponding pre-judgment interest. The Appeals Court ruled, "For the reasons set forth below, we affirm-in-part, reverse-in-part, vacate-in-part, and remand for proceedings consistent with this opinion."

   

    The Claims Court held there was a regulatory taking of the Hages' water rights when the Forest Service allowed vegetation to accumulate in streams and prevented the Hages from performing maintenance on the stream channels and ditch rights of way.   

 

    Among other determinations, the Appeals Court indicates, "The Hages have not met their burden because the evidence demonstrates only that they constructed or maintained the improvements on the federal lands, not that they owned title to those improvements. To the contrary, the evidence of record demonstrates that the improvements were the property of the United States government. Without evidence of ownership, the Hages cannot establish a cognizable property interest. To the extent that the Hages argue that they are entitled to a diminution in value for range improvements on their private property stemming from the cancelation of their permits, this argument is without merit. . ."

 

    In its conclusion the Appeals Court said, "The Hages' regulatory takings claim and claim for compensation pursuant to 43 U.S.C. § 1752(g) are not ripe, and we therefore vacate the Claims Court's award of damages. To the extent the Hages' claim for a physical taking relies on fences constructed in 1981-1982, this claim is untimely. To the extent the physical takings claim relies on fences constructed in 1988-1990, we re-verse because there is no evidence that water was taken that the Hages could have put to beneficial use. Finally, we affirm the Claims Court's holding that the Hages are not entitled to prejudgment interest for any range improvements award because the Hages failed to identify a cognizable property interest. We remand for further proceedings consistent with this opinion. "

 

    Access the complete opinion (click here). [#Water, #Land, #CAFed]

 

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