Thursday, November 29, 2012
Nov 28: In the U.S. Court of Alppeals, Tenth Circuit, Case No. 11-3210. Appealed from the U.S. District Court for the District of Kansas. The case concerns the construction of a new Burlington Northern Santa Fe (BNSF) rail/truck terminal outside Kansas City, Kansas. Because the preferred site contained streams and wetlands protected under Federal law, several groups (collectively, Hillsdale) brought challenges to a dredge and fill permit issued by the United States Army Corps of Engineers (Corps) under the Clean Water Act and the National Environmental Policy Act.
The district court denied Hillsdale's motion for an injunction and granted summary judgment for the Corps and BNSF. On appeal, Hillsdale requested the Appeals Court to set aside the Corps's decision to grant the permit saying "the Corps inadequately considered alternatives to the selected site under the Clean Water Act and violated the National Environmental Policy Act by preparing an inadequate environmental assessment and failing to prepare a full environmental impact statement." The Appeals Court concluded "the Corps's decision is supported by the record, and was not an arbitrary and capricious exercise of its approval powers under federal law. . . we affirm the decision of the district court and uphold the Corps's issuance of a § 404 permit."
Further explaining its decision, the Appeals Court said, "Hillsdale is correct that many of the comments they cite are more than mere statements of opposition; they question various aspects of the Corps's analysis, mostly its failure to analyze the cancer risks of DPM emissions but also the intermodal facility's impacts on water quality, regional air quality, and so on. But all comments Hillsdale identifies raise the same issues it raised in this appeal. As we have discussed, the Corps took the requisite 'hard look' at every one of these issues, which is all NEPA requires. . . Hillsdale cannot overcome its failure on the merits simply by pointing to
comments expressing the same concerns. If Hillsdale cannot show there is some merit to opposing opinions, they cannot demonstrate controversy. . . An additional point in the Corps's favor is that none of the federal or state agencies the Corps consulted opposed the project or the Corps's analysis. Although not dispositive, this is additional evidence of a lack of controversy. . . In short, neither the nature nor the number of the comments Hillsdale cites demonstrates the intermodal facility is controversial, let alone that the Corps's decision not to prepare an EIS was arbitrary and capricious in light of this controversy."
Access the complete opinion (click here). [#Water, #CA10]
Posted by JPMcJ at 2:15 PM
Nov 28: In the U.S. Court of Apppeals, Ninth Circuit, Case No. 12-70218. On Petition for Review of an Order of the U.S. Surface Transportation Board (STB). The Appeals Court issued an order stating, ". . . the petition for review of the STB's order is denied. An opinion on the merits of denial of the petition for review will follow in due course." Lifting the stay will allow the Alaska Railroad's extension project to Port MacKenzie in the Matanuska-Susitna Borough.
In this case the Appeals Court said in part, "After further review of the record, we have concluded that the STB's 'purpose and need' statement complied with NEPA and that Petitioners no longer raise 'serious questions' on this point. Moreover, the balance of hardships no longer tips sharply in the Petitioners' favor. Further delay of this project will prevent the award of construction contracts, postpone the hiring of construction employees, and significantly increase costs. . . Because this project is funded largely with taxpayer dollars, these increased costs of construction, which the Respondents-Intervenors in moving to lift the stay estimated at $1012 million, will burden the public upon continued delay. By contrast, the weight to be given Petitioners' assertions of hardship because of environmental harm is weakened by this court's decision to deny the petition for review, which will allow the project to move forward. Because we have concluded that the agency acted in accord with law and that its decision is not arbitrary and capricious, it is for the STB and not for our court to balance the justifications of planned economic progress in improved rail service against the possibilities of environmental harm from building and operating the rail line."
A release from the Matanuska-Susitna Borough indicates that in November 2011, the Federal Surface Transportation Board approved the plan to build a new 32-mile rail line, connecting Port MacKenzie to the Railroad's main line near Houston. On January 20, the Sierra Club, Cook Inletkeeper, and Alaska Survival filed a legal challenge to the Board's decision. Borough Mayor Larry DeVilbiss said he was delighted to hear the court's ruling. He said the Port MacKenzie Rail project will be a good return on investment for the state. He said, "This will diversify our Alaska economy. One of the things that's always struck me about this project, we're looking at a maximum of $300 million that is invested, but when you look at the payback, per year, on a 50-year study on this, the state will be getting back $300 million a year on the assets that will be moving down this track, so it's a no brainer."
Access the complete order from the Appeals Court (click here). Access the release from the Borough (click here). [#Transport, #CA9]
Posted by JPMcJ at 2:12 PM
Nov 28: In the U.S. Court of Appeals, First Circuit, Case No. 11-1952. Appealed from the District of Massachusetts, Boston. This case involves legal challenges to recent Federal management actions taken in New England's sensitive Multispecies Groundfish Fishery. In brief summary the Appeals Court says, "We reject the many challenges and affirm entry of summary judgment for the federal defendants."
The Appeals Court explains further that under the Magnuson-Stevens Fishery Conservation and Management Act the New England Fishery Management Council (N.E. Council) regulates fishery resources within the Federal waters off New England's coast. It does so primarily through Fishery Management Plans (FMPs), which it reevaluates biennially in light of the latest scientific information and congressionally imposed mandates and deadlines to prevent overfishing. Those mandates and deadlines were recently altered by the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, which introduced a suite of stringent protections for depleted fisheries.
The litigation centers on the N.E. Council's adjustments to the FMP governing the Northeast Multispecies Groundfish Fishery (Fishery). The N.E. Council was required by law to implement changes to the Fishery's 2004 FMP by the 2010 fishing year, taking into account both the Reauthorization Act's new protections and the results of a study conducted in 2008 on the health of the Fishery's stocks of fish. The study results showed that the situation was worse than previously believed. A number of groundfish stocks were overfished and subject to overfishing; only two stocks had improved since the 2004 FMP's implementation. This trend has continued to the present.
The N.E. Council adopted a new proposed groundfish FMP, Amendment 16, after 3 years' work, which included several publications in the Federal Register, eight public hearings, and receipt of numerous comments. The Federal environmental impact
statement prepared for Amendment 16 acknowledged the severe economic hardships facing New England's fishing communities.
On January 21, 2010, Amendment 16 was upheld on administrative review by the National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration (NOAA) within the U.S. Department of Commerce. The NMFS promulgated Amendment 16 through three related sets of regulations that, inter alia, altered and expanded the Fishery's preexisting "sector allocation program" and established new restrictions on fishing activities to end and prevent overfishing. The regulations took effect on May 1, 2010.
Plaintiffs then filed suit in Federal court alleging that Amendment 16 conflicts with the Reauthorization Act's provisions governing "limited access privilege programs," with the ten "national standards" applicable to all FMPs and with the requirements of the National Environmental Policy Act. They unsuccessfully sought to enjoin implementation of Amendment 16. The district court granted summary judgment for defendants as to all claims. The Appeals Court affirmed.
Access the complete opinion (click here). [#Wildlife, #CA1]
Posted by JPMcJ at 2:11 PM